Law Of Evidence PDF

LAW OF EVIDENCE Definition in Cross on evidence 1. An assertion 2. Other than one made by a person while giving oral evidence in the proceedings 3. Is inadmissible as evidence of any fact stated.  Rationale Credibility cannot be tested through cross...

LAW OF EVIDENCE Definition in Cross on evidence 1. An assertion 2. Other than one made by a person while giving oral evidence in the proceedings 3. Is inadmissible as evidence of any fact stated.  Rationale Credibility cannot be tested through cross examination Unfairness as the defence does not have the opportunity to cross examine that which is alleged against him Lord Norman summarised as the rationale in the case of R v Tepper he stated ‘the rule against admission of hearsay evidence is fundamental. It is not the best evidence and it is not delivered on oath. The truthfulness and accuracy of the person whose words are spoken to by another witness cannot be tested by cross examination and the light which his demeanour would throw on his testimony is lost.  Break down of definition An assertion/statement This may be: Oral, written, conduct or implied asssertions:  Oral: where the witness seeks to adduce an oral statement made by another person out of court i.e. not in the presence of the defendant See in the case of Sparks a mother was not allowed to testify on behalf of her daughter (who was too young to give oral testimony) on a charge of defilement as this amounted to hearsay.  Written statement: A document made by a person not being in court or a written statement made by one not being in court sought to be produced as the truth of its contents is inadmissible as hearsay. The same applies to video or audio recordings of an absent witness. Thus document has its expanded meaning as any medium on which information is recorded, including computer discs (Uglow). In the case of Myers v DPP evidence of microfilm kept by the manufacturer was sought to be produced by the prosecution to show that the registration documents and the cars did not match up and thus illustrate that the defendant stole new cars and purchased wrecked cars as a disguise. He would then alter the new car to fit the details in the document and then sell the disguised stolen car along with the genuine log book for the wrecked car. The microfilm was prepared from cards which were themselves prepared by workers on the assembly line, it was held that the evidence of the microfilm was inadmissible since it contained the out of court assertions by unidentified workers. In the case of Patel v Comptroller of Customs, the court held that evidence sought to be adduced of bags with the written words ‘produce of morocco’ was inadmissible to show that the seeds were produced in morocco as opposed to India as alleged by the defendant. Not knowing the person that wrote that statement, this amounted to hearsay and was thus inadmissible.  Statements by conduct Hearsay statements include mere assertions by conduct i.e. the actions of a declarant. In the case of Chandrasekera, a witness who had a cut throat when asked if it was the defendant that had done that to her nodded in asserting that it was. This intentional assertion was stated to amount to hearsay. In Gibson a victim who had been stoned sought to adduce evidence at trial that after the attack an identified woman pointed to the house and stated that the defendant went in there. This evidence of both conduct and oral assertion was stated to be inadmissible as hearsay.  Implied assertions Wright v Tatham R v Rattern In the second case the evidence was an implied assertion to the effect that the victim was murdered by her husband and to this extent was hearsay and had to come under one of the hearsay exceptions and in this case it was stated to be res gestae. R v Kearly  The scope of hearsay An assertion made other than one made by a witness giving oral testimony is inadmissible as proof of the facts asserted. From this it is prevalent that a statement will only amount to hearsay where it is adduced to prove the truth of its contents, thus if it is merely adduced to illustrate that the statement was made then this falls under original evidence and not hearsay. The question to be asked is what fact in issue is that statement trying to prove or rather the purpose of adducing that statement in relation to the fact in issue.  LEADING CASE: SUBRAMANIUM V PP In the case of Subramanium v Public Prosecutor (cited by Mutambo v the people and Shamwana v the people) the fact in issue on a charge of possession of ammunition unlawfully was whether as the defendant had claimed he was under duress. He sought as a defence to adduce statements made by the terrorists to show that he was threatened and thus forced to possess the ammunition. On appeal the court held that the statements did not amount to hearsay but rather amounted to original evidence as they were adduced merely for the purpose of showing that they were made and believed by the defendant, it is the state of mind of the defendant that was relevant thus all that had to be shown was that the statements were uttered and believed not that what was contained in the statements was true. ‘evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence not the truth of the statement but the fact that it was made. The fact that the statement was made quite apart from its truth is frequently relevant in considering the mental state and conduct thereafter of the witness or of some other person in whose presence the statement was made.’ In this case the prosecution was able to cross examine the defendant to establish if in fact his state of mind at that point was under duress i.e. did he believe that the terrorists would actually perform the acts that they had uttered, which was the fact in issue.  ZAMBIAN CASES APPLYING SUBRAMANIUM In the case of Subramanium v DPP( Public Prosecutor) (cited by Mutambo v the people and Shamwana v the people) the fact in issue on a charge of The Zambian cases of Mutambo and others and Shamwana and Others cited with approval the case of subramanium. In the former case the court confirmed that where orders are given to an individual to another in the presence of a third person, that third person may give evidence of the fact that such orders where given so far as the purpose of adducing the evidence is establishing that fact which is of relevance to the issue at trial, however it will be inadmissible as hearsay where it is adduced to prove the truth of its contents i.e. truth of what the order contained. However on the facts of the case in Mutambo the court held that the evidence was not admissible as it was not relevant to the facts in issue.  STATEMENTS FALLING OUTSIDE HEARSAY Where a statement is adduced to establish anything other than the truth of its contents it would fall outside the scope of hearsay. EXAMPLES: 1. Contracts 2. Proof that it was made 3. State of mind  CONTRACT Where the facts relate to establishing a breach of contract a statement adduced to illustrate that there was an acceptance is merely adduced to show that it was made, also in the case of defamation a statement may be adduced to show that the defence did in fact utter those words. Proving that it was made Mutambo: merely showing that orders were given not the content of the orders  PURPOSE OF THE STATEMENT: STATE OF MIND In the case of Woodhouse v Hall on a charge of managing a brothel one of the facts in issue to be proved on a charge for brothel is whether there were offers for sex. evidence as to such offers being made were adduced as original evidence merely establishing that the offers were made and not the truth of their contents i.e. that what was uttered would be performed. In the case of Davidson v Quirke evidence of calls made to a premise on a charge of illegal use of premises for betting was adduced and admissible as original evidence as the fact sought to be proved was merely that bets were made and not the truth of what was contained in the statements. In the case of Rattern, on a charge of murder of his wife, an accused sought to allege a defence of accident. Contrary to this evidence was adduced by a telephone operator that a call was made at a certain time and the accused sounded hysterical and asked for help. It was held that this evidence had two meanings: In the first case it was admissible in proving that a call was made between certain times although claimed otherwise by the husband and that the callers state of mind was hysterical so that to make it less probable that the wife was killed by accident. In the second case the evidence was an implied assertion to the effect that the victim was murdered by her husband and to this extent was hearsay and had to come under one of the hearsay exceptions and in this case it was stated to be res gestae. In as much as the statement was used to show the victims state of mind it was admissible and no injustice arose as the telephone operator was in court and able to testify as to her perception of the victims state of mind, the oral statement as far as it established the state of mind was admissible as well.  EXCEPTIONS TO THE RULE AGAINST HEARSAY Declarations made by dying persons Res Gestae Documentary evidence  DYING DECLARATIONS Dying declarations: the law recognises that statements made by a from that has abandoned all hope of survival may be admissible as hearsay evidence, the courts have stated that the state of mind of the person in such a position would be similar to the state of mind of a person giving an oath where the possibility of concoction would be less and the possibility of veracity great where a person believes that they will be meeting their creator. In such a situation the statements will be admissible. The three important criteria are thus (a) physical condition (b) mental state, giving up all hope to live and (c) death is imminent need not mean immediate. Criteria: 1. Only admissible in homicide cases 2. Must reveal identity of the accused 3. Declarant must be dead  DYING DECLARATIONS: R V PERRY Facts: the accused was convicted of the murder of a girl who died as a result of an illegal operation. The court considered the admissibility of a declaration made by the deceased. Held: the court in this case after reviewing the bulk load of jurisprudence held that the test to be applied is ‘whether all hope of life has been abandoned so that the person making the statement thinks that death must follow’ thus the judge at trial ought to consider: relating to the factual situation, whether the death of the deceased was imminent at the time the declaration was made and Determine from the language used by the deceased whether the statement was made at a time when the deceased had a settled hopeless expectation of death.’ In the current case the expression I shall go was taken to indicate in the whole sentence was taken to illustrate that the statement was made by the deceased with the hopeless expectation of death. Steven Mukuka v The people, James See also Mulenga v The People Nicholas Malaya v the people  Declarations against Interest The basis of this is that it is unlikely for a person to lie in relation to declarations made against his own interest. The exception is subject to the following limitations listed in Muna Ndulo i.e.: 1. Declarant must be dead 2. Declaration must be against pecuniary or proprietary interest (in America however the courts have applied this exception to declarations against penal interest) 3. Declaration must be of a fact or facts recognisable by the declarant personally 4. The Declarant must have had no possible motive to falsify the fact declared.  Declarations as to pedigree This is recognised as an exception to the hearsay rule as evidence of pedigree (family background) where the following are satisfied: 1. Declarant is dead 2. Relates to pedigree 3. Made by blood relative or spouse of blood relative 4. The declaration must be made before the proceedings in which it is tendered had arisen. Thus production of a birth certificate or evidence of a person present when it took place may be admissible as to the date of birth or birth of that person if in dispute. Declarations by Testator as to their wills Declarations made by a testator subsequent to the execution of the will are admissible as an exception to the hearsay rule of the contents of the will. This was confirmed in the English case of Barkwell v Barkwell  Declarations/entries in the course of duty; see evidence act It is identified as exceptions as it is considered that persons would use the utmost skill to prevent dismissal when doing that of which they were employed to do, this increases the veracity and reliability of the entries made Admissible where: 1. Records made in the course of duty 2. It must be made in the course of doing that of which he was employed to do  documents: See Order V HIGH COURT ACT Generally recognised as admissible, such as court documents, documents on which judicial notice may be taken, statutes etc Ss3 and 4 Evidence act See s191 A CPC  EXCEPTION TO HEARSAY: Res geste: Justice Lockwood in the case of Keefe v State best explains this exception to the rule against adducing hearsay evidence. He stated that: ‘ a spontaneous exclamation may be defined as a statement or exclamation made immediately after some exciting occasion by a participant or spectator and asserting the circumstances of that occasion as it is observed by him. The admissibility of such explanation is based on our experience that, under certain external circumstances of physical or mental shock, a stress of nervous excitement may be produced in a spectator which stills the reflective faculties and removes their control, so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock. Since this utterance is made under the immediate and uncontrolled domination of the senses rather than reason and reflection, and during the brief period when consideration of self-interest could not have been fully brought to bear, the utterance may be taken as expressing the real belief of the speaker as to the facts just observed by him.’  RES GESTAE: INITIAL APPLICATON The interpretation of this rule was previously applied strictly requiring the words spoken to be uttered at the same time as the action so that any lapse of time would render them as falling out of the exception. In the case of Bedingfiled a woman who had been attacked by the accused, run outside with the cut throat and said to her Aunt, look what Bedingfield has done to me. The court stated that this statement was inadmissible as it occurred after the throat cutting and the res had been completed.  CURRENT LAW: JOHN NGUNI The case analysed the exception to hearsay evidence mainly ‘res gestae’ Facts:The accused was accused of murdering the deceased. It was disputed whether evidence given by three witnesses testifying that, when the accused went out with the deceased, the deceased came back with a cut throat stating look what John Nguni did to me. Held: The court analysed the Australian case of Rattern and applied the principles established in that case to the current decision.  RES GESTAE THE TEST The test is thus: was the statement made whilst the maker was overpowered by some overwhelming event in such proximity although not contemporaneous so as to make it spontaneous and thus inhibit her reflective faculties, in which case the possibility of concoction or distortion to the advantage of the maker and disadvantage of the accused may be disregarded? Thus to establish whether the possibility of concoction or distortion can be disregarded and thus to fall under this the following must be considered: an overwhelming event (dramatic event, overpowering the senses of the declarant) The utterance must be made with close proximity although not being contemporaneous with the event so as to disregard the possibility of concoction (not in a situation where the utterance is made whilst the victim is disengaged from the event) The utterance must relate to that event The court must consider whether any special features such as malice existed in questioning whether the possibility of concoction can be disregarded Any aspects as to the fallibility of human recollection of the events on the part of the witnesses go to credibility and not admissibility  Res gestae cases Steven Mukuka Nicholas Malaya Mutambalilo v The people Edward Sinyama v The people