26th May 2025
INTRODUCTION
It is a well-established general rule that hearsay
evidence is inadmissible in court. Hearsay evidence is evidence given by a
witness of that which the witness did not perceive with any of their 5 senses,
but evidence that was brought to their notice by another person[1]. More
clearly, the Constitutional Court For Zambia in Steven Masumba
v Elliot Kamondo[2] defined hearsay
evidence as testimony that is given by a witness who relates not what he or she
knows personally, but what others have said they had seen or heard. The rule against evidence is meant
to ensure that evidence adduced in court is that only based on the witness’s
personal knowledge and not what another person revealed to them. The are
several exceptions to the general rule, which dictates that hearsay evidence is inadmissible in the courts of law. This writing will consider only two – dying declaration and res gestae –
highlighting the difference between these two somewhat similar doctrines.
Before considering the exceptions to the rule against
hearsay evidence, it is imperative to first understand the legal technicality
within which these exceptions operate. In the celebrated case of Subramaniam
v The Public Prosecutor[3] the Court essentially held that hearsay evidence may or may not be admissible
depending on the purpose of its production. It is admissible if the purpose of
adducing it is for merely proving that the statement was made by another person
as matter of fact, while inadmissible if the purpose of adducing it is intended
to establish the truth in the statements made by the other person.
A DYING DECLARATION
A dying declaration is defined as a statement made by
a declarant who made the statement under a belief of certain or impending death[4]
before succumbing to death. Therefore, a person can testify in Court as to what
the deceased said to them before the deceased demise. In the classic case of R v Perry[5],
the court held:
“the general principle on
which this specie of evidence is admitted is that the declaration is made in
extremity; when the party is at the point of death and when every hope of
continuing their life is gone; when every motive of falsehood is silenced and
the mind is induced by the most powerful consideration to speak the truth…”
The
case underscores the point that in order for a statement to suffice as a dying
declaration, the declarant must have made the statement at their 'point of
death.’ the point of death is understood to mean that the declarant (at the time of making the statement) was left with the expectation that death is imminent and will occur in the shortest period
after making the statement, before subsequently succumbing to death. The declarant need not die immediately for their
statement to qualify as a dying declaration, but the test is whether the
declarant laboured with the thought of them dying anytime thereafter. The
question to ask is ‘had they given up on life?
The
significance of ‘the point of death’ was aptly discussed in R v Mumenga[6].
In the case, the court admitted, as a dying declaration, a statement made by
the deceased on their injury bed in hospital taken by the local District
Commissioner. The deceased made the statement at 4pm in the afternoon and
subsequently died at 1am the following morning, the court held that the
statement was made when the deceased had abandoned all hope of living, there
was evidence that the deceased during the declaration said ‘I am dying.’ Additionally, in Chilosha
v the people[7],
the deceased statement that the appellant had caused their injuries by pouring
petroleum on them and setting them ablaze was admitted as a dying declaration
because at the time the deceased made the statement, they also said to the
officer recording their statements ‘officer
I am dying’ thus indicating that the deceased had lost all hope of life.
The
author submits that the foregoing case confirms that the time period between
the time the declarant made the declaration, and to the time the declarant
subsequently died is not necessarily a determinant to consider whether a
statement qualifies as a dying declaration or not. What matters is whether
at the time the declarant made the statement, they had lost all hope of life.
In the case, a period of 7 hours had passed since the deceased made their statement
and still the Court admitted it as a dying declaration on account that the
deceased had lost all hope of life at the time of making the statement. Time may be an indication however, not a
determinant. The above assertion can be said to be affirmed by the case of Chilosha v the People (supra) wherein
the Court of Appeal stunningly stated that ‘What
is cardinal is not whether the statement was made shortly after the incident or
shortly before dying. But the statement should be made at the time when the
deceased has lost all hope of living.’
It
worth noting that a dying declaration is not admissible to every charge.
According to the case of R v Mead[8]
a dying declaration is only admissible
where the charge in issue is murder or manslaughter and the declaration must
relate to the circumstances of the declarant’s death.
The
rationale behind admitting a dying declaration is anchored on the assumption that
no person would want a lie to be the last thing they say before they die. The
occasion of death is believed to be so solemn that every motive of falsehood is
silenced. The court in R v Perry (supra)
stated that a dying declaration is made in a situation –
“when every motive to
falsehood is silenced, and the mind is induced by the most powerful
considerations to speak the truth; a situation so solemn and so awful is
considered by the law as creating an obligation equal to that which is imposed
by a positive oath administered in a Court of justice.”
In
essence, the solemnity of death renders the statements made at the declarants
point of death to as those made on oath.
RES GESTAE
A
res gestae is Latin to mean part of the story or a thing done. It is a
spontaneous or instant exclamation in response to a sufficiently exciting event.
According to the case of Keefe v State
of Arizona[9],
‘based on experience’ certain exciting events when perceived by a spectator
or participant would cause in them a physical or mental shock which arrests
their mental faculties such that any such utterance is a spontaneous and honest
response to the things perceived. Therefore, a person who receives a statement
that suffices as a res gestae is competent to give witness in court for the
purpose of admitting the res gestae.
The
foregoing case set out the requirements that must be satisfied for a res gestae
to be established: (i) there must be a sufficiently
exciting event (ii) the statement must be a
spontaneous and an unreflecting statement (iii) the statement must relate
to the circumstances.
There must be a sufficiently exciting
event: a sufficient exciting event is an occurrence that
would cause a reasonable person perceiving or involved in the event to
apprehend a sense of instant shock, tremor, fear, terror etc.
The statement must be a spontaneous
and an unreflecting statement: the statement must be
impulsive, sudden or instant such that the declarant had no opportunity to
reflect on the events transpiring. However, spontaneous or an instant statement
must not be taken to mean that the statement must be made contemporaneous with
the exciting event. In the People v
Nguni[10]
the Supreme Court held that statement need not be made at the same time as
the exciting event instead, it must be made approximate to the event. Proximity
to the events means that the declarant at the time of making the statement must
be still labouring under the pressure or under the involvement of the event.
The
time factor was aptly applied in Sinyama
v the People[11]
wherein the deceased ran half a kilometre while she was on fire till she
met the witnesses whom she told the accused had set her ablaze. It was argued
by the accused that the fact that the deceased ran half a kilometre suggested
that she had time to regain her mental and reflective faculties thus
disqualifying her statement as a res gestae. The Court admitted the deceased
statement as a res gestae holding that the deceased made the statement while
she was under the pressure or under the involvement of the exciting event which
was the fire burning her skin. To fortify this position, in Mutambalilo v the People[12],
it was held that what was of primary concern was not the time within which
the statement was made but rather whether, within the time the statement was
made, the declarant could have had time to concoct or create a story. From the
foregoing cases, what is clear is that a res gestae would be satisfied where
the statement was made by the declarant while in throes of the event.
The statement must relate to the
circumstances: this means that the statement must
relate to the events or occurrence that has formed the subject matter of the
case before the court.
KEY DIFFERENCES BETWEEN A DYING
DECLARATION AND A RES GESTAE
-
While
a dying declaration requires the declarant to meet their death subsequently, a
res gestae would be admitted even when the declarant survives.
-
While
a dying declaration is made at the declarant’s point of death, a res gestae is
made spontaneously by the declarant while labouring under the pressure or while
in the throe of the exciting event that would cause any reasonable person in the
declarant’s position to apprehend a sense of physical or mental shock.
-
While
a dying declaration’s admission is only limited to cases of murder and
manslaughter, a res gestae can be applied in both civil and criminal cases.
CONCLUSION
The two doctrines of dying declaration and res gestae are similar and it is not uncommon to see some people confusingly apply them interchangeably. While the two doctrines are both exceptions to the rule against hearsay evidence their nature, as has been discussed in this writing, differ. it is thus imperative to understand the pertinent differences between these two doctrines. it is the authors hope that this writing has assisted the reader in providing an understanding on the 2 doctrines.
[1] J.
Hatchard & M. Ndulo. The Law of Evidence In Zambia Cases & Material (the
Southern African Institute for Policy and Research: Lusaka Zambia, 2013)
[2] [2017]
ZMCC 88
[3]
(1956) 1 W.L.R. 965
[5] (1909)
2 K.B. 697
[6] (1954)
5 NRLR 280
[7] [2022]
ZMCA 107
[8] (1823)
1 Lew. C.C. 184
[9] (1937)
72 P.2d 425
[10] [1977]
Z. 376
[11] [1993]
ZMSC 17
[12] [2016]
ZMSC 214
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