Dying declaration

The admissibility of a dying declaration

Akena was allegedly shot by Kanyamunyu. How do we know this? Akena, with his dying breath, told his brother that Kanyamunyu had shot him. –that is what the law calls a dying declaration.

Dying declarations are admissible before a court of law, in mostly criminal proceedings, as an exception to the hearsay rule in trials for murder, where the accused is charged with the death of the declarant. It is a dying declaration only when it is made by a person who is dead at the time of the trial, and who at the time they made the declaration, believed that their death was near and certain. For a dying declaration to be admissible in court, it must also appear that the declarant, if he or she were alive, they would have been competent to testify.

The rationale of the dying declaration

Whereas it is true that some dying declarations are false and sometimes contradictory, they are admitted as an exception to the hearsay rule because in English Law, it has long been believed that a man about to die and meet his maker would be unwilling to die with a lie on his lips. It also has to do with the relationship between English law and Canon Law, and the fact that originally, justice was for the King to give, a king who was ordained by God.

Critics of the admissibility of a dying declaration question whether a rule based on 19th century religious beliefs is relevant today’s world where there is no fear of God, where there are atheists, and where justice is not highly regarded.

In my research for this article, I did not come across a study showing the psychological effect the knowledge of imminent and certain death has on a human being. Does it make them speak the truth? Does it make them want to leave their families in peace? Does it make them want to be remembered as victims of a murder, that there was no wrong doing on their part? I did not come across any such study. So, there is no scientific backing for admissibility of a dying declaration.

However, dying declarations are accepted in evidence because murderers must be brought to justice. No one would kill another in full public view (except terrorist). Murders are usually committed in secret and the dying declarant is the only witness to who has committed the murder. If the dying declaration is not admitted in evidence, then the murderer may escape justice. This view only makes sense if the dying declaration is the only evidence which the prosecution has against the accused.

In Uganda, the jurisprudence on what constitutes a dying declaration was stated in the case of Oyee George Vs Uganda Court of Appeal Criminal Appeal No. 159 of 2003 in which the learned Justices quoted Section 30 of the Evidence Act (Cap 6 Laws of Uganda).  That section governs the admission of dying declaration made by a person who is dead as to the cause of death. It provides as follows:

“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 in the circumstances of the case appears to the court unreasonable, are themselves relevant in the following cases-

(a) when the statement is made by a person as to the cause of his or her death, or as to any circumstances of the transaction which resulted in his or her death, in cases in which the cause of that person’s death comes into question and the statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and, whatever may be the nature of the proceedings in which the cause of his or her death comes into question.”

The Supreme Court of Uganda has already pronounced itself on matters regarding dying declarations. It stated, in the vase of Tindigwihura Mbahe v. Uganda Cr. App. NO. 9 of 1987 that

“Briefly the law is that evidence of dying declaration must be received with caution because the test of cross examination may be wholly wanting; and particulars of violence may have occurred under circumstances of confusion and surprise, the deceased may have stated his inference from facts concerning which he may have omitted important particulars for not having his attention called to them. Particular caution must be exercised when an attack takes place in the darkness when identification of the assailant is usually more difficult than in daylight. The fact that the deceased told different persons that the appellant was the assailant is no guarantee of accuracy. It is not a rule of law that in order to support conviction, there must be corroboration of a dying declaration as there may be circumstances which go to show that the deceased could not have been mistaken. But it is generally speaking very unsafe to base conviction sorely on the dying declaration of a deceased person made in the absence of the accused and not subjected to cross examination unless there is satisfactory corroboration

It is therefore clear that a dying declaration, to be admissible to the extent that it sustains a conviction against the accused, it must be corroborated by some other evidence. There should be no doubt on the identity of the alleged murderer.

The high Court in Uganda is not facing a case to do with a dying declaration, for the first time. There is a wealth of local jurisprudence on the subject and no doubt, the justice before whom the file will be placed will do a good job. We hope that the killers of Akena will face the full force of the law. God grant Akena a peaceful rest.

BY SAMALI BITALA

This article appears in our weekly digital law magazine, The Deuteronomy, Vol 9, Issue 1 of December 2nd, 2016.

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