LECTURER: JUSTUS M.

MUTIA

LESSON 1: HEARSAY
EVIDENCE
 Introduction: The Rule Against Hearsay.
 Justification of the Rule Against Hearsay
 Scope of the Exclusionary Rule.
 Hearsay admissible at Common Law.
1. Statements in public documents.
2. Works of Reference.
3. Statements of persons since deceased.
4. Declarations against Interest.
5. Declarations in the Course of Duty.
6. Declarations as to Pedigree.
 7. Declarations as to Public and General
Rights.
8. Dying Declarations.
9. Statements forming part of the res gestae.
10.Evidence given in former proceedings.
11.Confessions/Admissions.
 Selected Illustrative Cases
 The common law laid emphasis on direct or
first-hand oral testimony as opposed to, for
lack of better words, ‘reported speech.’
 The common law rule against the admission of
hearsay holds that an assertion other than one
made by a person while giving oral evidence in
court is inadmissible if tendered as evidence of
the fact(s) asserted.
 In Kenya, the rule against the admission of
hearsay is to be found at section 63 of the
Evidence Act, which states:
 “63 (1) oral evidence must in all cases be direct evidence.
– (2) For the purposes of subsection (1), “direct
evidence” means-
– (a) with reference to a fact which could be seen,
the evidence of a witness who says he saw it;
– (b) with reference to a fact which could be heard,
the evidence of a witness who says he heard it;
• (c) with reference to a fact which could be perceived by any
other sense or in any other manner, the evidence of a
witness who says he perceived it by that sense or in that
manner;
• (d) with reference to an opinion or to the grounds on which
that opinion is held, the evidence of the person who holds
that opinion or, as the case maybe, who holds it on those
grounds:
• Provided that the opinion of an expert expressed in any
treatise commonly offered for sale, and the grounds on
which such opinion is held, may be proved by the production
of such treatise if the author is dead or cannot be found, or
has become incapable of giving evidence, or cannot be
called as a witness without an amount of delay or expense
which the court regards as unreasonable.”
• The Justification for the general exclusion

of hearsay evidence is best captured in the

dictum of Lord Normand in Teper v R

[1952] A. C. 480 at 486:

• “the rule against the admission of hearsay evidence is
fundamental. It is not the best evidence [as it is
indirect rather than first-hand] and it is not delivered
on oath [and hence the obligation to tell the truth
might not have been uppermost in the mind of the
person whose words are repeated in court]. The
truthfulness and accuracy of the person whose words
are spoken to by another witness cannot be tested by
cross-examination [and hence there are difficulties in
deciding what weight, if any, to attach to the hearsay
evidence], and the light which his demeanour would
throw on his testimony is lost.”
 Lord Bridge further explained in R v Blastland [1985] 2
All ER 1095 at 1099 that the exclusion of hearsay
evidence has nothing to do with its probative value or
lack thereof:
 “hearsay evidence is not excluded because it has no
logically probative value…The rationale of excluding it
as inadmissible, rooted as it is in the system of trial by
jury, is a recognition of the great difficulty, even more
acute for a juror than for a trained judicial mind, of
assessing what, if any , weight can properly be given to
a statement by a person whom the jury have not seen or
heard and who has not been subject to any test of
reliability by cross-examination…The danger against
which this fundamental rule provides a safeguard is
that untested hearsay evidence will be treated as
having a probative force which it does not deserve.”
 Murphy has explained the rationale for exclusion of
hearsay in the following terms:
 “There is no mystery surrounding the often expressed
reluctance to admit hearsay evidence more widely. It is a
continuation of the judicial preoccupation with three
dangers said to be associated with hearsay. These are
(1) the risk of distortion inherent in evidence which
consists of repeating what someone else said, (2) the
fears that juries may be unable to evaluate hearsay
evidence in an appropriate way, and (3) the danger of
produce resulting from the absence of opportunity to
cross-examine. The question is, to what extent those
fears should still be heeded today, and how they can be
assuaged without the necessity of excluding much
relevant and potentially cogent evidence.”
 See Murphy (1997) “Hearsay: The Road to Reform,” 1 (2)
International Journal of Evidence and Proof, 107-127 at
p. 117. see also Adrian Kean at p. 220.
 In in R v Blastland [1985] 2 All ER 1095, the Appellant had
been convicted of the buggery and murder of a 12-year old boy.
 Held:
1. the appellant could not adduce evidence of statements
made by a third party indicating his knowledge of the
murder several hours before the boy was reported missing
and body discovered, because the only issue before the
court was whether the appellant had committed the crimes
and what was relevant to that issue was not the third
party’s knowledge but how he acquired it.
2. Since the third party could have acquired knowledge of the
murder many different ways, there was no rational basis
upon which the jury could infer that he, rather than the
appellant, was the murderer.
 At common law, the rule against hearsay applies to all out
of court statements, howsoever made, when offered as
the truth of their contents.
 The scope of the rule extends to out-of-court:
1. oral statements (see Sparks v R [1964] A. C. 964);
2. written statements (see Myers v DPP [1965] A. C.
1001); and
3. statements made by conduct, including signs and
gestures (see Chandra-sekera v R [1937] A. C. 220 PC);
4. express and implied statements (see Teper v R [1952]
A. C. 480 and Wright v Doe d Tatham (1837) 7 AD & EI 313
for implied assertions).
5. statements as to existence or non-existence of facts.
 NB:
1. Hearsay evidence may be given to prove that a
statement was made, rather than to prove the
truth of the statement (see Subramaniam v
Public Prosecutor [1956] 1 W.L.R. 965 on
allegation that terrorists (not called as
witnesses) had forced the appellant to carry
ammunition).
2. The rule against hearsay prohibits the eliciting
of such evidence during both examination-in-
chief and cross-examination.
3. An out of court statement for purposes of the rule
against hearsay means any statement other than
one made by a witness in the course of giving his
evidence, and could include a statement made in
previous legal proceedings.
4. It is immaterial, for purposes of the rule against
hearsay, whether the maker of the statement
intended to communicated thereby, and hence
the rule applies to the situation where a person is
talking to himself unaware that he is being
overheard.
 As is evident from the foregoing, the rule against hearsay
can operate to exclude highly cogent evidence.
 Common law judges, therefore, developed a number of
important exceptions to the rule against hearsay, most of
which have now been codified into statute (c.f. sections 33,
34 and 63 of the Kenyan Evidence Act), including:
1. Statements in public documents (c.f. section 38 of the
Evidence Act);
2. Works of reference (c.f. the proviso to section 63 (1) (d)
of the Kenyan Evidence Act);
3. Statements of persons since deceased/dying
declarations (c.f. section 33 (a) of the Kenyan Evidence
Act);
4. Statements forming part of the res gestae (c.f.
sections 6 and 33 of the Kenyan Evidence Act);
5. Evidence given in previous legal proceedings
(c.f. section 34 of the Kenyan Evidence Act).
6. Declarations against Interest (c.f. section 33
(c) of the Kenyan Evidence Act).
7. Declarations in the Course of Duty.
8. Declarations as to Pedigree (c.f. section 33 (f)
of the Kenyan Evidence Act).
 At common law, statements made in most public
documents are admissible in both civil and criminal
cases as evidence of the truth of their contents.
 The justification for this exception to the rule against
hearsay is convenience and the presumptive reliability
of records routinely made and kept by impartial and
detached public officials for future public reference
 see Adrian Kean at p. 240.
 see also Murphy (2007) “Hearsay: The Road to
Reform,” 1 (2) International Journal of Evidence and
Proof, 107-127 at p.110).
 Moreover, whereas proof of the matters stated in
public documents by direct evidence would be
ideal, in many cases the public official who made
the entry will be dead, otherwise unavailable or
unable to remember the facts recorded because of
the time which has lapsed.
 At common law, there were three conditions of
admissibility of statements contained in public
documents by way of an exception to the hearsay
rule (c.f. Lord Blackburn in Sturla v Freccia (1880) 5
App Cas 623 HL at 643-4).
 A public document was admissible as
evidence of the truth of its contents if it:
1. concerned a public matter (see Sturla v
Freccia);
2. was made by a public officer acting under a
duty to inquire and record the results of such
an inquiry (see Doe d France v Andrews (1850)
15 QB 756); and
3. was intended to be retained for public
reference or inspection (see Lilley v Pettit
[1946] KB 401 DC).
 Though not an exact replica of the common law
exception, section 38 of the Kenyan Evidence Act is
couched in words that suggest influences from the
common law :
 “An entry in any public or other official book, register
or record, stating a fact in issue or a relevant fact,
and made by a public servant in the discharge of his
official duty, or by any other person in performance of
a duty specially enjoined by the law of the country in
which such book, register or record is kept, is itself
admissible.”
 At common law, authoritative published works of
reference dealing with matters of a public nature are
admissible to prove, or to assist the court in deciding
whether to take judicial notice of, facts of a public
nature stated therein (see section 60 (2) of the
Evidence Act).
 From case law (see Adrian Kean at p. 244), documents
receivable under this exception include historical
works concerning ancient public facts; standard
medical texts concerning the nature of a disease;
engineers reports within the common knowledge of
engineers and accepted by them as accurate on the
nature of certain soil, dictionaries on the meaning of
ordinary English words etc.
 Certain statements of persons since deceased are
admissible at common law as evidence of the truth
of their contents.
 In Kenya, this common law exception has been
codified into section 33 of the Evidence Act,
although the section is not limited to statements of
deceased persons (as it also covers statements by
persons who cannot be found, who have become
incapable of giving evidence, or whose attendance
cannot be procured without a degree of delay or
expense that would be unreasonable in the
circumstances of each particular case).
1. Dying declarations in homicide (murder/manslaughter)
cases the justification being the presumptive reliability of
statements made in the face of impending death (c.f. section
33 (a) of the Kenyan Evidence Act):
– “the principle upon which this species of evidence is
admitted is, that they are declarations made in extremity,
when the party as at the point of death, and when every
hope of this world is gone, when every motive to falsehood
is silenced, and the mind is induced by the most powerful
consideration to speak the truth; a situation so solemn
and so awful is considered by law as creating an
obligation equal to that which is imposed by a positive
oath administered in a court of justice.”__ Eyre CB in R v
Woodcock [1789] Leach 500, discussed in Adrian Kean at
p. 253.
– The conditions of admissibility under this
exception were:
• the declarant must have been under a
settled hopeless expectation of death; and
• the declarant must have been competent as
a witness.
2. statements made in the ordinary course of duty, the justification
being that the duty itself provides a guarantee of reliability (c.f.
section 33 (b) of the Kenyan Evidence Act). There were six
conditions for admissibility under this common law exception:
– (i) the deceased must be shown to have been under a duty not
only to do the particular thing to which the declaration related
but also to report or record it; (ii) the duty must have been
owed to another rather than self-imposed; (iii) the declaration
must relate to acts done by the deceased and not by others;
(iv) the act must have been performed before the declaration
was made; (v) the declaration must have been more or less
contemporaneous with the performance of the act; and (vi)
the declarant must have had no motive to misstate what
occurred.
3. declarations against the pecuniary or
proprietary interest of the maker:
– the justification for this exception to the
hearsay rule was the unlikelihood of a
reasonable person would make such a
statement unless he believed it to be true,
the presumed unlikelihood of a person
speaking falsely against his won interest (c.f.
section 33 (c) of the Kenyan Evidence Act);
4. declarations as to public and general rights or custom
(c.f. section 33 (d) of the Kenyan Evidence Act):
• the justification for this exception was that other
evidence, especially in the case of ancient rights, is
usually unavailable. To be admissible, such
declaration must have been made before any
controversy arose on the existence or non-existence
of the public or general right or custom.
• NB: Public rights are those common to the public at
large, such as rights to use paths, highways, ferries
or landing places on the banks of a river. General
rights are those common to a section of the public or
a considerable class of such persons, such as the
inhabitants of a parish or the tenants of a manor.
5. declarations as to pedigree (c.f. section 33 (e)
and (f) of the Kenyan Evidence Act):
– the justification being that such declarations are
often the only evidence that can be obtained
concerning facts which may have occurred many
years before the trial. At common law, such
declarations were only admissible if made by a blood
relation as opposed to, say, a relation in law,
domestic servants or intimate acquaintances.
Further, to be admissible, the declaration must have
been made before any controversy arose upon the
matter (of pedigree) in question.
 “Res gestae” is an omnibus phrase embracing a group
of common law hearsay exceptions which are loosely
connected by the circumstance that a statement is
made roughly contemporaneously with an event to
which the statement relates.
 The justification for the res gestae exception to the
hearsay rule was based on the spontaneity of the
statement, the lack of opportunity to fabricate or
exaggerate and the light the statement sheds upon
the act or event in issue: in its absence, the
transaction in issue may not be fully or truly
understood and may even appear meaningless,
inexplicable or intelligible.
 Two res gestae exceptions which are of
contemporary significance in criminal cases
are:
 excited utterances by participants in or
observers of events (see Thompson Trevanion
v R (1693) Skin 402; Ratten v R [1972] A. C.
378 PC; R v Bedingfield (1879) 14 Cox CC
341); and
 contemporaneous statements of the physical
or mental state of the declarant.
 Since the development of this common law
exception, and in Kenya, up to 2003, confessions
presented problems rather different from those
traditionally associated with hearsay, dealing
largely with the manner in which the confession
had been obtained.
 Most of the reliability challenges associated with
informal or out-of-court confessions in Kenya were
resolved by Statute Law (Miscellaneous
Amendments) Acts Nos. 5 of 2003 and 7 of 2007,
which introduced the current section 25A of the
Evidence Act.
 At common law, a statement concerning a
particular issue made by a witness whether orally
or in a document in the course of giving evidence in
proceedings is admissible on the same issue in
subsequent proceedings between the same parties
or those privy to them if the witness in question
was subject to cross-examination and is dead or
otherwise unable to attend the subsequent
proceedings.
 This common law exception to the hearsay rule has
been codified into section 34 of the Kenyan
Evidence Act.
 In Sparks v R [1964] A. C. 964, the appellant, a white
man aged 27, was convicted of indecently assaulting
a three-year-old girl.
 The girl did not give evidence at the trial.
 The trial judge (of the Supreme Court of Bermuda)
ruled as inadmissible hearsay evidence by the girl’s
mother a statement made by the child shortly after
she was assaulted that, “ it was a coloured boy.”
 The appellant argued that the words by the child
ought to have been admitted either as evidence of
identity (of the attacker) or as part of the res gestae.
 Held (allowing the appeal on other grounds):
 the mother’s evidence of what the child had said to
her would have been hearsay evidence, and the child
having neither given evidence nor said anything in the
presence of the appellant, there was no basis upon
which her statement to her mother could be admitted.
Further, even if any basis for its admission could be
found, the evidence of the making of the remark
would not be any evidence of the truth of the remark.
 There was no rule which permitted the giving of
hearsay evidence merely because it related to identity.
 It was not possible to say that the words alleged to
have been spoken by the child were so closely
associated with the assault in time, place or
circumstances that they were part of the res gestae.
 In Myers v DPP [1965] A. C. 1001, the Appellant had
been convicted of offences relating to the theft of
motor vehicles.
 The prosecution’s case was that the Appellant would
buy a wrecked car, steal a car resembling it, disguise
the stolen car so that it corresponded with the
particulars of the wrecked car as noted in its
logbook, and then sell the stolen car with the log
book of the wrecked one.
 The prosecution case involved proving that the
disguised cars were stolen by reference to the
cylinder block numbers indelibly stamped on their
engines. To achieve this, the prosecution sought to
adduce evidence derived from records kept by a
motor manufacturer.
 An officer in charge of the manufacturer’s
records was called to produce microfilms which
were prepared from cards filled in by workmen
on the assembly line, and which contained the
cylinder block numbers of the cars
manufactured.
 The Court of Criminal Appeal held that the trial
judge had properly allowed the evidence
because of the circumstances in which the
record was maintained and the inherent
probability that it was correct rather than
incorrect. On appeal to the House of Lords—
 Held :
1. It was established law that as a general rule
hearsay evidence was not admissible, and that
authority must be found to justify its reception
within some established and existing exceptions
to the rule.
2. To countenance new exceptions to the rule
against hearsay would have amounted to judicial
legislation.
3. The records could not be brought within the
exception relating to public documents open to
public inspection (as they were private
documents) or any other established exception to
the rule against hearsay.
4. Accordingly, the records constituted inadmissible
hearsay evidence, because the entries on the cards and
contained in the microfilms were out-of-court
assertions by unidentified workmen that certain cards
bore certain cylinder block numbers. To this extent, the
officer called could not prove that the records were
correct and that the numbers they contained were in
fact the numbers of the cars in question.
5. (Per Lord Reid) The hearsay rule was “absurdly
technical.” Nonetheless, “no matter how cogent
particular evidence may seem to be, unless it comes
within a class which is admissible, it is excluded.”
Accordingly, the reasoning of the Court of Criminal
Appeal, though undeniable as a matter of common
sense, was irreconcilable with the existing law.
 NB:
1. The significance of the decision in Myers v DPP is
that it confirms the applicability of the rule against
hearsay to written statements, and that hearsay
evidence is not excluded because it lacks logical
probative value.
2. The House of Lords was divided on whether the
evidence in Myers v DPP should have been admitted
by the creation of a new exception to the hearsay
rule (they eventually ruled that the creation of new
exceptions to the hearsay rule should be left to
Parliament), but were unanimous in dismissing the
appeal on the grounds that the other evidence of
guilt being overwhelming, there was no substantial
miscarriage of justice.
3. The decision in Myers v DPP was reversed by the
UK Criminal Evidence Act 1965, which provided
for the admissibility of certain hearsay
statements contained in trade or business
records (see Adrian Kean at p. 223). Section 1 of
the Criminal Evidence Act 1965 provides:
– “1. In any criminal proceedings where direct
oral evidence of a fact would be admissible, any
statement contained in a document and
tending to establish the fact shall, on
production of the document, be admissible as
evidence of that fact if—
• (a) the document is, or forms part of, a record relating to any
trade or business and compiled, in the course of that trade or
business, from information supplied (whether directly or
indirectly) by persons who have, or may reasonably be
supposed to have, personal knowledge of the matters dealt with
in the information they supply; and
• (b) the person who supplied the information recorded in the
statement in question is dead, or beyond the seas, or unfit by
reason of his bodily or mental condition to attend as a witness,
or cannot with reasonable diligence be identified or found, or
cannot reasonably be expected (having regard to the time
which has elapsed since he published the information, and to all
the circumstances) to have any recollection of the matters dealt
with in the information he supplied.”
4. Sections 33 (b) and 35 of the Kenyan
Evidence Act provides for admissibility of
hearsay evidence contained in documents
written in the ordinary course of duty or
business. The sections would appear to
mitigate the absurdity of the hearsay rule as
applied in Myers v DPP, but they are less
satisfactory compared to the English
Evidence Act 1965, as they are arguably
limited to instances where the maker of the
document is deceased, cannot be found etc.
5. In the UK, the hearsay rule was abolished in
civil cases by the Evidence Act 1995.
 In Chandra-sekera v R [1937] A. C. 220 PC, a
woman whose throat had been cut was
unable to speak owing to the nature of the
injury. She was fully conscious, however, and
able to understand what was said to her, to
make signs and nod her head slightly.
 After making certain signs which, it was
alleged, possibly indicated the appellant, she
was asked the direct question whether it was
the appellant who had cut her throat. In
response to that question, she nodded her
head, and died shortly afterwards.
 Held:
 Evidence as to the signs made by the deceased in
answer to questions put to her was admissible,
but the statements of the witnesses as to what
interpretation they put upon the signs was
inadmissible.
 The direct question to the deceased whether it
was the appellant and her nod of assent
constituted a verbal statement made by her
within the meaning of section 32 of the Ceylon
Evidence Ordinance, 1895 (pari materia to section
33 (a) of the Kenyan Evidence Act and section 32 of
the Indian Evidence Act 1872), and as such was
admissible in evidence under that section.
 In Patel v Comptroller of Customs [1966] A. C. 356 PC,
the appellant imported from Singapore into Fiji bags
of coriander seed and correctly engrossed the
Customs Import Entry Form in accordance with the
particulars contained in the invoice.
 Five bags were found each to be contained in an
outer bag marked with the appellant's trade name,
but the inner bags had written on them:
"Alberdan/A.D. 4152/Coriander Favourite Singapore"
and at the base of them the legend "Produce of
Morocco."
 In the Customs Import Entry Form, the country of
origin was stated to be India.
 The appellant was charged with making a false
declaration in a Customs Import Entry Form
produced to an officer of customs contrary to
section 166 of the Fiji Customs Ordinance, in that
in respect of the five bags instead of declaring
the origin of the seed to be Morocco he declared
it to be India.
 Held: the only evidence purporting to show that
the entry was false was the legend "produce of
Morocco" written on the bags; and the words
from an evidential point of view were
inadmissible against the appellant as hearsay.
 In Wright v Doe d Tatham (1837) 7 AD & EI
313 , a testator by his will bequeathed his
properties to his servant (the appellant).
 In order to vacate the bequest to the servant,
the testator’s heir and beneficiary (the
respondent) filed a suit to set aside the
testator’s will, arguing that:
 the testator was a congenital idiot incapable of
managing his affairs and insane, hence lacked
animus testadi; and
 the will was procured by fraud on the part of the
servant.
 In order to prove that the testator was sane, the
appellant sought to adduce evidence of letters
written to the testator by certain third parties
(who had predeceased the testator), in terms
from which it could legitimately be inferred that
they regarded him as sane.
 Held: The letters constituted inadmissible
hearsay because they were adduced to assert the
proof of a matter (sanity) which was the opinion
of a person outside of the court; Evidence is
hearsay if beliefs are implied from conduct of
persons not in the courtroom and not under
oath.