Hearsay and speaking from the grave (2)

Posted on July 7, 2008


“…where a witness is dead, it may be better to admit evidence of what he said than to deprive the court of all proof” – Phipson on Evidence.

That’s a text book commentary on the English common law position in the matter of what is commonly referred to as the ‘dying declaration’ exception to the hearsay rule.

In our jurisdiction, that exception is encapsulated in section 32(1)(a) of the Evidence Act, 1950, which reads :

(1) Statements, written or verbal, of relevant facts made by a person who is dead or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the court unreasonable, are themselves relevant facts in the following cases:

(a) when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question.

In 1939, the Privy Council heard an appeal from India which involved a consideration of the Indian equivalent of our section 32(1)(a). This is the case of Pakala Narayana Swami v. King-Emperor. I will not burden you with the facts of the case, which was one of homicide, but just reproduce below what Lord Atkins said in relation to the Indian equivalent to our section 32(1)(a) :

‘…The statement may be made before the cause of death has arisen, or before the deceased has any reason to expect to be killed. The circumstances must be circumstances of the transaction. General expressions indicating fear or suspicion, whether of a particular individual or otherwise, and not directly related to the occasion of the death, will not be admissible. However, statements made by the deceased that he was proceeding to the spot where he was in fact killed or as to his reasons for so proceeding, or that he was going to meet a particular person, or that he had been invited by such person to meet him, would each of them be circumstances of the transaction, and would be so whether the person was unknown, or was not the person accused. Such a statement might indeed be exculpatory of the person accused. “Circumstances of the transaction” is a phrase, no doubt, that conveys some limitations. It is not as broad as the analogous use in “circumstantial evidence”, which includes evidence of all relevant facts.

Such a statement is relevant whether the person who made it was or was not at the time when it was made under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question’

That’s a lot to absorb, I know, but what might all this mean in the context of Bala’s first SD?

Again, have a look at the SD posted by Howsy HERE.

Read paragraphs 26 to 31 inclusive. These narrate a conversation between Bala and Altantuya on the night of 19th October, 2006. If this conversation did in fact take place, it may well be the last conversation that Altantuya had before her death that we may ever know about.

Are the contents of all of paragraph 28 hearsay?

I think so.?

Might they come within the exception permitted by section 32(1)(a)?

A court of law must decide that question.

Posted in: Digressions