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Dying Declarations

01 April 2013

Routledge Modise

Hearsay evidence, is evidence about a statement that another person made to a witness. The rule against the admission of hearsay evidence, which can be traced back to the institution of the jury, is founded on the premise that it is normally unreliable.

The original speaker could have been misquoted, either accidentally or intentionally. Furthermore, the listener, being at least one step removed from the original speaker, cannot witness his or her mannerisms, voice inflections or body language and judge the original speaker's credibility. This inherent tendency for unreliability is one reason why hearsay is generally excluded from evidence in civil and criminal trials.

The person who made the statement is not under oath, his appearance cannot be observed by the court and the truth and accuracy of his statement cannot be tested by means of cross examination.

Hearsay evidence was, until recently, regulated mainly by common law being English Law as of 30 May 1961. It was inadmissible except in certain narrowly circumscribed cases. In addition to these common law exceptions, which formed a closed list, parliament, over time, established certain statutory exceptions insofar as documentary hearsay evidence was concerned.

Our Law of Evidence Amendment Act of 1988 brought about an incisive amendment to the hearsay rule by establishing a new definition of hearsay evidence and providing for judicial discretion to allow such evidence to be admitted in the interest of justice.

Under section 3(1) of the Act hearsay evidence is admissible if (a) the opposing side consents to its admission or (b) the person who made the statement to the witness, himself later testifies at the proceedings and lastly (c) a court having regard to:

i) The nature of the proceedings

ii) The nature of the evidence

iii) The purpose for which it is tendered

iv) Its probative value

v) The reason why it is not given by the person on whose credibility it depends

vi) Any prejudice to a party which the admission of the evidence might entail

vii) Any other factor, which, in the opinion of the court, should be taken into account

This gives a court a very wide discretion to admit hearsay evidence although this is not often done.

A common law exception highlighted by recent worldwide events relates to dying declarations. These are statements made by a mortally injured person aware that he is about to die, indicating who has injured him and/or the circumstances surrounding the injury. It is admissible since it is believed that a dying person does not have any reason to be untruthful just prior to his death.

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