1

Introduction

Section 3 of the Evidence Ordinance specifies evidence as,

a) “Oral Evidence".1

b) “Documentary Evidence”.2

Considering the above categorization, the next task would be to define hearsay

evidence. Hearsay Evidence3 denotes “That

Evidence – Rough Categorization
the person concerned who had seen, heard or

perceived the fact is not available, and another Oral Evidence Documentary

person takes his place in the circumstances, Direct Primary

whose credibility and competence is equal to

Hearsay Secondary
that of person concerned”4. There are number

of definitions which describe the “Rule against

Hearsay”5 which is an instance of practical application of the “Best Evidence Rule”6 and is

used differently in regard to attendant circumstances of various cases. The base of the

1
“All statements which court requires or permits to be made before it by witnesses”
2
“All documents produced for the inspection of the court.”
3
“Hearsay evidence is an out of court statement, made in court, to prove the truth of the matter asserted. In
other words, hearsay is evidence of a statement that was made other than by a witness while testifying at
the hearing in question and that is offered to prove the truth of the matter stated”
""Hearsay" Evidence."Findlaw.N.p., n.d. Web. 20 July 2015.
<http://criminal.findlaw.com/criminal-procedure/hearsay-evidence.html>.
4
Tilakaratne, Mahanama, and PadmikaMahanamaTilakaratne.The Law of Evidence. 1st ed. Colombo:
Samayawardena Book Shop, 2008. 110-15. Print.
5
“Hearsay evidence ordinarily takes the form of (i) the testimony of the person who made the
statement, (ii) the testimony of a person who heard or saw the statement being made, (iii) an
item on which the statement was written, or (iv) an electronic recording of the statement”
(R v.Sharpe [1998])
“Express or implied assertions of persons other than the witness who is testifying and assertions in
documents produced to the court when no witness is testifying are inadmissible as evidence of the truth of
that which was asserted.” – Cross
"There is no general rule of evidence to the effect that a witness may not testify as to the words spoken by a
person who is not produced as a witness. There is a general rule, subject to many exceptions, that evidence
of the speaking of such words is inadmissible to prove the truth of the facts which they assert; the reasons
being that the truth of the words cannot be tested by cross examination and has not the sanctity of an oath.
This is the rule known as the rule against hearsay"
Cullen v. Clarke [1963], SC, Kingsmill Moore J.
 2

analysis herein after is regarding the use of hearsay evidence in Sri Lanka through the

evidence ordinance and case law.

Approach

“The Evidence Ordinance does not state anywhere that hearsay evidence is

inadmissible, but the whole Ordinance proceeds on the assumption that this principle is part

of our law.”7

Exceptions8 are part of legal documents and principles. Exceptions are instances

where “a case to which a rule, general principle,

Approaches to prove that hearsay
etc. does not apply”9. In the Evidence Ordinance,
evidence is not accepted in Sri
there are exceptions for the rule against hearsay, Lanka.

but no expressed section which prohibits hearsay. By looking in By looking in

to other to exceptional
Availability of exceptional circumstances implies sections which circumstances
defines what where they
that the Evidence ordinance does not favor kind of are admissible
evidence is
accepting hearsay evidence. Following analysis acceptable.

will comprise of such exceptional instances

Since the E.O is affirmative, looking in
which would impliedly prove the above quote. to exceptional circumstances will be
productive

Peiris, GaminiLakshman. "The Rule Against Hearsay." The Law of Evidence in Sri Lanka. 4th ed. Colombo:
Lake House Investments, 1974. 41. Print.
6
“The best evidence rule is pretty much exactly what it sounds like: a rule of evidence requiring the “best”
evidence of something be admitted at trial or during a hearing. In most cases, this means the original of a
document or object (or a verifiably accurate copy) must be the one used in court, unless it has been lost or
destroyed.”
"What Is the Best Evidence Rule?" RSS 20.N.p., n.d. Web. 20 July 2015.
<http://www.rotlaw.com/legal-library/what-is-the-best-evidence-rule/>.
7
Coomaraswamy,, E. R. The Law of Evidence.1st ed. Vol. 1.N.p.: n.p., n.d. p48. Print.
8
LAW - “A formal objection or reservation to court action or opinion in the course of a trial.”
9
"Exception Dictionary Definition | Exception Defined." Exception Dictionary Definition | Exception Defined.
N.p., n.d. Web. 29 July 2015. <http://www.yourdictionary.com/exception>.
 3

Analysis

Hearsay evidence is not generally accepted in Sri Lanka10 and Section 60 of the Evidence

ordinance clearly expresses all oral evidence to be direct.11 But in the Evidence Ordinance12,

there is no provision which positively indicates that hearsay evidence should not be allowed

in court proceedings13. Even though there are no specific sections in regard to hearsay

evidence, significant number of sections excludes and sometimes provides exceptions to

hearsay evidence which coincides with the ratio of the statement14 indicated in the approach

part. The analysis will focus on the extent to which hearsay evidence is made relevant to the

law through evidence ordinance and case law.

10
In Sri Lanka, hearsay evidence is generally not allowed. However, the Evidence Ordinance recognizes a few
exceptions such as res gestae (recognized under Section 6) and common intention (recognized under Section
10) and some other exceptions from section 17 to section 39. Some other exceptions are provided by case
law. (see Subramaniam v. DPP [1956] 1 WLR 956 (PC))
Wikipedia. Wikimedia Foundation, n.d. Web. 20 July 2015. <https://en.wikipedia.org/wiki/Hearsay>.
11
Section 60 of the Evidence ordinance No 14 of 1895 –
Oral evidence must, in all cases whatever be direct, that is to say, (1) if it refers to a fact which could be
seen it must be the evidence of a witness who says he saw that fact, (2) if it refers to a fact which could be
heard, it must be evidence of a witness who says heard the fact, (3) if it refers to a fact which could be
perceived by any other sense or by any other sense or in a manner, it must be the evidence of a witness who
says he perceived that fact by that sense or in that manner, (4) if it refers to an opinion or to the grounds on
which that opinion Is held, it must be the evidence of the person who holds that opinion on those grounds.
12
No 14 of 1895
13
In Elryathamby v. Elryathamby and Gabrial, Bertram,CJ. –“It is a singular thing, however, that our Evidence
Ordinance contains no general prohibition of hearsay, nor does anywhere specifically prohibit the use of a
remark or a letter against a person nor responsible for it, where the remark or the letter was not brought
before him in such circumstances as to affect his action….the principle draftsman of the code rejected with a
certain animus the whole of the English Law of hearsay. Instead of its negative provisions, which exclude the
type of evidence, he substituted positive enactments enumerating and declaring what should be evidence.”
Lee v The Queen– “The common law of evidence has long focused upon the quality of the evidence that is
given at trial and has required that the evidence that is given at trial is given orally, not least so that it might
be subject to cross-examination. That is why the exclusionary rules of the common law have been
concerned with the quality of the evidence tendered - by prohibiting hearsay, by permitting the giving of
opinions about matters requiring expertise by experts only, by the "best evidence rule" and so on. And the
concern of the common law is not limited to the quality of evidence, it is a concern about the manner of
trial. One very important reason why then common law set its face against hearsay evidence was because
otherwise the party against whom the evidence was led could not cross-examine the maker of the
statement. Confrontation and the opportunity for cross examination is of central significance to the
common law adversarial system of trial.”
14
“The Evidence Ordinance does not state anywhere that hearsay evidence is inadmissible, but the whole
Ordinance proceeds on the assumption that this principle is part of our law.”
 4

Drawbacks15of using hearsay had led the courts to disregard hearsay evidence and a

significant number of cases16 will be in favour of the view that hearsay should not be allowed

as valid evidence. To consider the status of hearsay evidence, the evidence ordinance has to

be given priority and following analysis comprise of a comparison between hearsay evidence

and its acceptability through Evidence ordinance.

Admissibility of hearsay evidence

There are three areas17where hearsay evidence is considered under the Ordinance:

 Res gestae (Section 618)

 Common intention (Section 1019)

15
"There is no unifying principle behind the rule and this gives rise to anomalies and confusion. Court time is
wasted because of the lack of clarity and complicated nature of the rule. Cogent evidence may be kept from
the court, however much it may exonerate or incriminate the accused, because the fact-finders are not
trusted to treat untested evidence with the caution it deserves, but if hearsay is admitted there is nothing to
prevent them from committing on it alone. Witnesses may be put off by interruptions in the course of their
oral evidence. Whether evidence will be let in or not is unpredictable because of the reliance on judicial
discretion."
English Law Commission Consultation Paper: Evidence in Criminal Proceedings: Hearsay and Related Topics
(1995)
Hearsay is inadmissible because of five reasons,
1. Irresponsibility of the declarant.
2. Depreciation of the truth.
3. Opportunities for fraud.
4. Tendency to protect legal inquiries.
5. Encourage substitution of weaker for strong proofs.
Tilakaratne, Mahanama, and PadmikaMahanamaTilakaratne.The Law of Evidence. 1st ed. Colombo:
Samayawardena Book Shop, 2008. 110-15. Print.
16
Korossa Rubber Company v. Silva (1917) 20.N.L.R. 65
Livera v. Abeywickrama(1923) 25.N.L.R. 1
Eliyatamby v. Gabriel (1923) 25.N.L.R. 373
Solomon v. Don William Singho (1952) 54.N.L.R. 512
17
“In Sri Lanka, hearsay evidence is generally not allowed. However, the Evidence Ordinance recognizes a
few exceptions such as res gestae (recognized under Section 6) and common intention (recognized under
Section 10) and some other exceptions from section 17 to section 39. Some other exceptions are provided
by case law (see Subramaniam v. DPP [1956] 1 WLR 956 (PC)).”
"Hearsay." Wikipedia. N.p., n.d. Web. 22 July 2015. <https://en.wikipedia.org/wiki/Hearsay>.
18
“Facts which thought not in issue are so connected with a fact in issue as to form part of the same
transaction are relevant, whether they occurred at the same time and place or at different times and
places.”
19
“ Where there is reasonable ground to believe that two or more persons have conspired together to
commit an offence or an actionable wrong, anything said, done, or written by one of such persons in
reference to their common intention, after the time when such intention was first entertained by any one of
them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose
proving the existence of the conspiracy as for the purpose of showing that any such person was party to it.”
 5

 Exceptions from section

17 to section 39

Res gestae20 denotes “the events, circumstances,

If, Hearsay is Relevant
remarks, etc. which relate to a particular case,
Are those admissible?
especially as constituting admissible evidence in a court

of law.” Is hearsay evidence admissible in such

Yes No
circumstances simply because it is relevant as expressed in section 5 of the Evidence
Hearsay can be Original!
Ordinance? The answer could be “Yes” or “No” depending on the circumstances 21. It is a

requirement for res gestae to be direct under Lejzor Teper’s22 case. Section 6 illustration

(a)23implies that hearsay evidence will be admissible at the illustrated circumstance which

requires things said or done by the disputing parties and the bystanders as relevant which is a

window to hearsay evidence to be labeled as relevant. But the logic is that, bystanders24 who

20
Statements that constitute part of the res gestae are attributed a certain degree of reliability because they
are contemporaneous, making them admissible by virtue of ‘the nature and strength’ of their connection
with a particular event and their ability to explain it comprehensively. The law considers them as sufficiently
reliable to overcome the expansive coverage of the exclusionary hearsay rule, making admissible
statements that would otherwise constitute inadmissible hearsay. In understanding the nature of the res
gestae exception to hearsay and the manner in which it must be construed in individual cases by the
Judiciary, it is important to rely repeatedly on the underlying consideration that is often overlooked – the
reliability of the statement.
"The Doctrine Of Res Gestae." Law Teacher. N.p., n.d. Web. 22 July 2015.
<http%3A%2F%2Fwww.lawteacher.net%2Ffree-law-essays%2Fcommon-law%2Fthe-doctrine-of-res-gestae-
law-essays.php>.
21
The concept of ‘relevancy’ must be distinguished from that of ‘admissibility’. ‘relevancy’ expresses a
logical relation between two or more things; but a fact which is logically relevant may be legally
inadmissible in evidence for reasons of policy. This, hearsay, opinion, bad character and similar conduct on
other occasions are matters in regard to which evidence , even though it may be logically relevant, cannot
be presented in a court of law except in circumstances where these matters are specifically treated as
admissible by the provisions of the Evidence ordinance.
Peiris, GaminiLakshman. "The Rule Against Hearsay." The Law of Evidence in Sri Lanka. 4th ed. Colombo:
Lake House Investments, 1974. 47. Print.
22
(1952) 76 N.L.R.145.
23
A is accused of the murder of B by beating him. Whatever was said or done by A or B or the bystanders at
the beating, or so shortly before or after it as to form part of the transaction is a relevant fact.
24
“There have been occasions where the same objection of hearsay been taken by some ignorant defence
counsel when statements made by bystanders have been led through a witness who was present at the
crime scene. Some prosecuting counsel have similarly been ignorant and replied by saying that those
statements are relevant as res gestae (things done) or acts forming part of the same transaction7. The
mistake made here by the defence counsel is the same that has been discussed above, viz., failing to see
that the witness was giving direct evidence of a fact that he heard. The mistake by the prosecuting counsel is
 6

saw or heard should say it before the court, as

Relevant Facts
witnesses, which makes it a direct evidence and not Section 6

hearsay, hence it can be concluded that this section

Direct Hearsay
did not permit hearsay evidence to be valid but Evidence Evidence

affirmed the validity of direct evidence.25

Admissible Not Admissible

In the leading Privy Council case

Subramaniam v. Public prosecutor26, the head note itself indicated “Evidence – Hearsay –

Admissible to show fact that statement was made”27. The judgement introduced a

mechanism to judge whether evidence is hearsay or not.

failing to realise that the objection taken by the defence was that the “evidence is hearsay” and not that the
“evidence is irrelevant”. Most of the times, prosecuting counsel tend to lead evidence of this nature by
saying that it is relevant under the sections dealing with relevancy8. But the prosecution has to realize that
they have not correctly answered the objection of the defence, because the defence had not taken an
objection that the evidence is irrelevant. Hence, the prosecution should have replied by saying that the
evidence is admissible because it is direct evidence. The word “admissible” should be used when the
objection is on admissibility but not on relevancy.”
Mahawanniarachchi, Sumedha. "“Hearsay Evidence” – A Comparative Analysis." Bar Association Law Journal
of Sri Lanka 9.3 (2002): n. pag. Acadamia.Edu. Web. 22 July 2015.
25
The logic in accepting the admissibility of such evidence is because such evidence is in the purview of
direct evidence.
“The statements made by bystanders at a crime scene are relevant under section 6 ofthe Evidence
Ordinance. But those statements can be led only through a person who himself heard the statements. A
person to whom that person repeated the statements cannot come and give evidence. Then it would be
hearsay and therefore
inadmissible, although still relevant under section 6.”
26
(1956) 1 W.L.R. 965
“Subramaniam was charged with possession of ammunition for the purpose of helping a terrorist enemy,
which would carry a sentence of death. He pleaded a defense of duress, claiming that he had no choice as
the terrorists had threatened to kill him if he did not follow through with their requests. As part of the
defense, he wanted to testify about these conversations he had with the terrorists.
At trial these conversations were found to be hearsay and excluded. On appeal the decision was overturned
and the evidence was admitted on the basis that the conversation would be hearsay only if the purpose of
submitting the evidence was to prove the contents of the statements.
The issue for the Court was whether the testimony would constitute hearsay. The Privy Council held that the
statements were not hearsay and allowed the appeal.”
Wikipedia. Wikimedia Foundation, n.d. Web. 20 July 2015.
<https://en.wikipedia.org/wiki/Subramaniam_v_Public_Prosecutor>.
27
“Evidence of a statement made to a witness by a person who is not himself called as a witness may or may
not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of
what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by
the evidence, not the truth of the statement, but the fact that it was made. The fact that the statement was
made, quite apart from its truth, is frequently relevant in considering the mental state and conduct
thereafter of the
 7

 When the object of the evidence is to establish the truth of what is contained in the

statement. - hearsay and inadmissible

 When it is proposed to establish by the evidence, not the truth of the statement,

but the fact that it was made. - not hearsay and is admissible28

The said view as further justified by R. Kumaraswamy29 as well. There are more cases

where the applicability of section 6 on hearsay evidence was concerned and various views

were declared.30 However, it is clear that section 6 does not accept hearsay evidence and the

use of hearsay evidence is as explained through the leading case Subramaniam v. Public

prosecutor31.

Common intention32 denotes an intention held common by number of people. Can a

statement revealing such intention by a party to such act would constitute valid evidence

Witness or of some other person in whose presence the statement was made.”
28
Halsbury – “it is essential to appreciate that evidence is only hearsay when tendered to prove the truth of
the facts asserted, not when tendered simply to show that the statement was made”
29
“The term “hearsay” is sometimes misunderstood and is supposed to exclude evidence of the following
nature, “I heard X say . . .”. Such evidence is admissible and becomes direct evidence under Section 60(2) of
the Ordinance as to the fact that the statement was made. But if the court is called upon to assume the
truth of what X said, the statement is inadmissible as hearsay.”
Coomaraswamy,, E. R. The Law of Evidence.1st ed. Vol. 2.N.p.: n.p., n.d. 8. Print.
30
“In Palaniyandy’s case((1972) 76 N.L.R. 145). also, a distinction was drawn between facts, which become
relevant under section 6, and facts, which become admissible under section 32(1) of the Evidence
Ordinance. Thus, it is clear that a relevant fact can be direct evidence as well as hearsay evidence. Only
direct evidence of relevant facts is admissible. Even if a fact is relevant under a particular section, hearsay
evidence of that fact cannot be led in court unless another section or sections of the Evidence.”
“In Lejzor Teper’s case, the Privy Council has clearly drawn the distinction between evidence, which become
admissible by the operation of sections allowing hearsay evidence, and evidence, which become relevant by
the operation of sections declaring facts as relevant. In this case also, res gestae was in issue. It was held in
this case that res gestae should always be direct evidence (words used in the judgement have been “real
evidence”), and not hearsay evidence (words used in the judgement have been “reported statements”).”
Mahawanniarachchi, Sumedha. "“Hearsay Evidence” – A Comparative Analysis." Bar Association Law Journal
of Sri Lanka 9.3 (2002): n. pag. Acadamia.Edu. Web. 22 July 2015.
31
(1956) 1 W.L.R. 965 – The Rational – “The statements were not presented to prove the truth of the matter
asserted but to prove whether D was reasonable to act under duress. So even if the terrorist had said to D “I
plan on killing you,” we don’t care whether this statement was actually true and whether the terrorist was
being truthful. All we care is whether such statement could cause duress. So not hearsay.”
32
Section 10 of the Evidence Ordinance -“ Where there is reasonable ground to believe that two or more
persons have conspired together to commit an offence or an actionable wrong, anything said, done, or
written by one of such persons in reference to their common intention, after the time when such intention
was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so
conspiring, as well for the purpose proving the existence of the conspiracy as for the purpose of showing
that any such person was party to it.”
 8

against the wrongdoer? In Mirza Aqbar v.King Emperor33, the use of common intention in

regard to hearsay evidence was set forward which coincides with section 10 of the Sri Lankan

Trust Ordinance.

“Things said, done or written while the conspiracy was on foot are relevant as

evidence of the common intention, once reasonable ground has been shown to believe to be

in its existence. It would be a very different matter however to hold that any narrative

statement or confession made to a third party after the common intention or conspiracy was

no longer operating and had seized to exist is admissible against the other party. There is then

no common intention of the conspirators to which the statement can have reference”.

In Sri Lanka, a leading case regarding this section is Peris v. Silva34 where the facts

and judgement is similar to the above judgement.35

Other exceptions for the “Rule against Hearsay”

Section of the Trust Content/Side note Is hearsay accepted? Which sections

Ordinance illustrate such acceptance?

8 Motive or Preparation The word conduct36 is used here and

statements can only be used under certain

defined circumstances. Illustration

(g)37tends to be in favor of hearsay

33
1940 (3) All ER 585
34
(1913) 17N.L.R. 139
35
“A and B were charged with attempting to extort money from C. It was held that statements made by B to
C implicating A, and disclosing a conspiracy on the part of A and B to commit extortion, were inadmissible as
against A.”
Peiris, GaminiLakshman. "The Rule Against Hearsay." The Law of Evidence in Sri Lanka. 4th ed. Colombo:
Lake House Investments, 1974. 41. Print.
36
Section 8(2) illustration 1 and 2 -
37
Section 8 illustration (g) of the Evidence ordinance –
“The question is whether A owes B Rs. 10,000. The facts that A asked C to lend him money, and that D said
to C in A’s presence and hearing “I advise you not to trust A, for he owes B 10,000 rupees”, and that A went
away without any answer are relevant facts.
 9

evidence, but illustrations (j)38 and (k)39

tends to be contradictory implying that

hearsay should not be admissible.

9 Facts necessary to explain Illustration (d) 40 and illustration (e).

or introduce relevant facts.

14 Facts showing the Illustration (p)41

existence of state of mind

or of body, or bodily

feeling.

19 Admissions by persons Illustration of section 1942

whose position must be

proved as against a party

to suit.

21 Proof of Admissions43 Sections 21(a)45, 21(b)46 and 21(c)47

38
Section 8 illustration (j) of the Evidence Ordinance –
The question is whether A was ravished. The fact that shortly after the alleged rape she made a complaint
relating to the crime, the circumstances under which and the terms in which the complaint was made, are
relevant.
The fact that, without making a complaint, she said that she had been ravished, is not relevant as conduct
under this section, though it may be relevant as a dying declaration under section 32(1), or as corroborative
evidence under section 157.
39
Section 8 illustration (k) of the Evidence ordinance –
The question is whether A was robbed. The fact that soon after the alleged robbery he made a complaint
relating to the offence, the circumstances under which and the terms in which the complaint was made, are
relevant. The fact that he said he had been robbed without making any complaint, is not relevant as conduct
under this section though it may be relevant as a dying declaration under section 32 (1), or as corroborative
evidence under section 157.
40
Section 9 illustration (d) of the Evidence Ordinance –
“A sues B for inducing C to break a contract of service made by him with A. C, on leaving A’s service, says to
A, “I am leaving you because B has made me a better offer”. This statement is relevant, as explanatory of a
fact which is part of the transaction.”
41
Section 14 illustration (p) of the Evidence ordinance –
“P is tried for a crime, the fact that he said something indicating an intention to commit that particular crime
is relevant.”
42
Section 19 illustration of the Evidence ordinance –
“A undertakes to collect rents for B. B sues A for not collecting rent due from C to B. A denies that rent was
due from C to B. A statement made by C that he owed B rent is an admission, and is a relevant fact as
against A, if A denies that C did owe rent to B.
 10

But section 3144 limits

the strength of

admissions.

32 Cases in which statements Those are relevant in the following

of relevant fact by person instances.49

who is dead or cannot be 1. When it relates the cause of death.

found is relevant. 2. When it is made in course of

business.

3. When it is made against the

Section 15848 implies interest of the maker.

that this should not be 4. When it is made in will or deed

an exception. relating to family affairs.

43
“Sections 21 – 31 deal with admissions and confessions. A confession is a kind of admission. An admission
is a statement regarding a fact in issue or a relevant fact. As aforesaid, although Section 5 has stated that
evidence may be led on facts in issue and relevant facts, Section 21 repeats that an admission is relevant. It
should be noted that there are instances where an admission may not be hearsay also. In sections 21(a),
21(b) and 21(c), the words, “may be proved by or on behalf of the person making it”, indicates that the
maker of the statement also can give evidence on that fact. In such an event, it would not amount to
hearsay evidence.”
Mahawanniarachchi, Sumedha. "“Hearsay Evidence” – A Comparative Analysis." Bar Association Law Journal
of Sri Lanka 9.3 (2002): n. pag. Acadamia.Edu. Web. 22 July 2015.
45
Section 21(a) of the Evidence Ordinance –
“an admission may be proved by or on behalf of the person making it when it is of such a nature that, if the
person making it were dead, it would be relevant as between third persons under section 32”
46
Section 21(b) of the Evidence ordinance –
“An admission may be proved by or on behalf of the person making it when it consists of a statement of the
existence of any state of mind or body, relevant or in issue, made at or about the time when such state of
mind or body existed, and is accompanied by conduct rendering its falsehood improbable.”
47
Section 21(c) of the Evidence ordinance –
“An admission may be proved by or on behalf of the person making it if it is relevant otherwise than as an
admission.”
44
“Admissions are not conclusive proof of the matters admitted, but they may operate as estoppels under
the provisions hereinafter contained.”
48
Section 158 of the Evidence Ordinance
“Whenever any statement relevant under section 32 or 33 is proved, all matters may be proved either in
order to contradict or to corroborate it, or in order to impeach or confirm the credit of the person by whom
it was made, which might have been proved if that person had been called as a witness and had denied
upon cross-examinationthe truth of the matter suggested”.
49
“In subsection 1, by the use of the words “cases in which the cause of death comes into question”, it is
clear that the evidence has to be on the fact in issue. Subsection 2 is mainly on admissions and if used
 11

5. When it relates to existence of

relationship etc.

Illustrations (c)50, (f)51 and (k)52 are

examples.

3353 Evidence in a former judicial proceeding, when relevant. The intention

in accepting hearsay is clear when this section is referred.

3954 . How much of a statement is to be proved

against the maker of the statement, it would be relevant under section 21 and if used on behalf of the
maker of the statement, it would be relevant under sections 11, 21(a) or 34 of the ordinance. Subsection 3 is
relevant as a confession and subsections 4 and 5 are relevant under sections 48 and 50respectively.
Subsection 6 could be construed to be relevant under section 50 (opinion expressed by conduct, as to the
existence of such relationship). If a statement is to be relevant under subsection 7, it has to be relevant
under section 13(a). Subsection 8 read with its illustration, could be construed to be relevant under section 6
of the ordinance.”
Mahawanniarachchi, Sumedha. "“Hearsay Evidence” – A Comparative Analysis." Bar Association Law Journal
of Sri Lanka 9.3 (2002): n. pag. Acadamia.Edu. Web. 22 July 2015.
50
Section 32 illustration (c) –
The question is, whether A was in Colombo the given day, A statement in the diary of a deceased attorney at
law, regularly kept in the course of business, that, on a given day, the attorney at law attended A, at a place
mentioned, in Colombo, for the purpose of conferring with him upon specified business, is a relevant fact.”
51
Section 32 illustration (f) –
“The question is, whether A and B were legally married. The statement of a deceased clergyman that he
married them under such circumstances that the celebration would be a crime is relevant.”
52
Section 32 illustration (k) –
“The question is, whether A, who is dead, was the father of B. A statement by A that B was his son is a
relevant fact.”
53
Section 33 of the Evidence Ordinance –
“Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is
relevant, for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same
judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is
incapable of giving evidence, or is kept out of the way by the adverse party, of if his presence cannot be
obtained without an amount of delay or expense which, under the circumstances of the case, the court
considers unreasonable:
Provided
(a) That the proceeding was between the same parties or their representatives in interest.
(b) That the adverse party in the first proceeding had the right and opportunity to cross – examine.
(c) That the questions in issue were substantially the same in the first as in the second proceeding.”
54
Section 39 of the Evidence ordinance –
“ When any statement of which evidence is given forms part of a longer statement, or of a conversation, or
part of an isolated document, or is contained in a document which forms part of a book, or of a connected
series of letters or papers, evidence shall be given of so much and no more of the statement, conversation,
document, book, or series of letters or papers as the court considers necessary in that particular case to the
full understanding of the nature and effect of the statement, and of the circumstances under which it was
made.”
 12

In ways as quoted above, the Evidence Ordinance has permitted some sorts of

evidence in the form of hearsay evidence to be relevant in exceptional cases. However, some

scholars are in the view that all the sections from section 5 – 55 are not exceptions for

hearsay, only the sections 21, 32, 33, 35 – 38, 40 – 4355 are the only exceptions for rule

against hearsay .(examples)56

Evidence (Special Provisions) Act 199557

The special purposes act specifies with certainty the instances in which hearsay will

be admissible and will not. Section 59 (1)58, (2)59, (2A)60 with certain exceptions61 to the rule

against hearsay is clearly provided.

55
Mahawanniarachchi, Sumedha. "“Hearsay Evidence” – A Comparative Analysis." Bar Association Law
Journal of Sri Lanka 9.3 (2002): n. pag. Acadamia.Edu. Web. 22 July 2015.
56
Example number 1 – “The statements made by bystanders at a crime scene are relevant under section 6 of
the Evidence Ordinance. But those statements can be led only through a person who himself heard the
statements. A person to whom that person repeated the statements cannot come and give evidence. Then it
would be hearsay and therefore inadmissible, although still relevant under section 6.”
Example number 2 – “In Pike’s case ((1829) 3 C. & P. 598.), and in Palaniyandy’s case ((1972) 76 N.L.R. 145.)
established the principle is that, to allow the leading of hearsay evidence under section 32(1) of the
Evidence Ordinance, had the maker of the statement been able to testify, he should have been a person
accepted by the court as a competent witness.”
Mahawanniarachchi, Sumedha. "“Hearsay Evidence” – A Comparative Analysis." Bar Association Law Journal
of Sri Lanka 9.3 (2002): n. pag. Acadamia.Edu. Web. 22 July 2015.
57
Act No. 14 of 1995
58
The hearsay rule-exclusion of hearsay evidence
(1) Evidence of a previous representation made by a person is not admissible to prove the existence of a
fact that it can reasonably be supposed that the person intended to assert by the representation.
59
Such a fact is in this Part referred to as an asserted fact.
60
For the purposes of determining under subsection (1) whether it can reasonably be supposed that the
person intended to assert a particular fact by the representation, the court may have regard to the
circumstances in which the representation was made.
61
Specific exceptions to the hearsay rule are as follows:
 evidence relevant for a non-hearsay purpose (section 60);
 first-hand hearsay:
- civil proceedings, if the maker of the representation is unavailable (section 63) or available
(section 64);
- criminal proceedings, if the maker of the representation is unavailable (section 65) or available
(section 66);
 contemporaneous statements about a person's health etc. (section 66A);
 business records (section 69);
 tags and labels (section 70);
 electronic communications (section 71);
 Aboriginal and Torres Strait Islander traditional laws and customs (section 72);
 marriage, family history or family relationships (section 73);
 13

In conclusion, it is reasonable to say that hearsay evidence generally not admissible

under the Trust Ordinance even though it is not expressly stated anywhere in the ordinance.

Exceptional circumstances are provided to use hearsay evidence as valid evidence to the fact

in issue62 is set forward by the ordinance because the drafter did not intend hearsay to be

treated as valid evidence which is clear when going through the exceptions provided in the

analysis part. When looking in to the provisions, it is clear that even the exceptions are quite

restrictive in application. (Examples63 )

Case law also mostly supports the view that hearsay evidence in not admissible.

Silva v. Silva64 - “Mere hearsay evidence in an affidavit is not sufficient to enable a

Magistrate to issue a warrant under Gaming ordinance.”

Eliatamby v. Eliatamby65 - Letters written by the wife to the core respondent, but not

delivered, was prevented from being used by the husband in a case for a divorce.66

 public or general rights (section 74);

 use of evidence in interlocutory proceedings (section 75);
 admissions (section 81);
 representations about employment or authority (subsection 87(2));
 exceptions to the rule excluding evidence of judgments and convictions (subsection 92(3));
 Character of and expert opinion about accused persons (sections 110 and 111).
62
Section 3 (Interpretation for “fact in issue”)
“Any fact from which, either by itself or in connection with other facts, the existence, non existence, nature,
or extent of any right, liability or disability, asserted or denied in any suit or proceeding, necessarily
follows.”
63
Extracted from the Evidence (Special provisions) Act of 1995
“D is the defendant in a sexual assault trial. W has made a statement to the police that X told W that X had
seen D leave a night club with the victim shortly before the sexual assault is alleged to have occurred. Unless
an exception to the hearsay rule applies, evidence of what X told W cannot be given at the trial.”
“W had bought a video cassette recorder and written down its serial number on a document. Unless an
exception to the hearsay rule applies, the document is inadmissible to prove that a video cassette recorder
later found in D's possession was the video cassette recorder bought by W.”
“P had told W that the handbrake on W's car did not work. Unless an exception to the hearsay rule applies,
evidence of that statement cannot be given by P, W or anyone else to prove that the handbrake was
defective.”
64
(1920) 22.N.L.R. 27
65
(1925) 27.N.L.R. 396
66
Lord Darling – “None of the sections of the Evidence Ordinance in force in Ceylon apply in such a way as to
affect the ordinary rules of evidence by which this particular matter must be decided.”
 14

Somasiri67- Recitals of a deed was held as hearsay evidence and was not accepted by court to

prove the ownership of the respondent.68

With reference to above facts, it can be therefore concluded that the quote below is

acceptable and true.

“The Evidence Ordinance does not state anywhere that hearsay evidence is

inadmissible, but the whole Ordinance proceeds on the assumption that this principle is

part of our law.”

67
(1969) 75.N.L.R. 172
68
“Recitals in the deeds are at best hearsay evidence and are inadmissible to prove that X was at any time
the lawful owner of Kosgahawatte” – Gratiaen J.
 15

Bibliography

Books

Tilakaratne, Mahanama, and PadmikaMahanamaTilakaratne.The Law of Evidence. 1st ed.

Colombo: Samayawardena Book Shop, 2008. 110-15. Print.

Coomaraswamy,, E. R. The Law of Evidence.1st ed. Vol. 1.N.p.: n.p., n.d. p48. Print.

Peiris, GaminiLakshman. "The Rule Against Hearsay." The Law of Evidence in Sri Lanka. 4th ed.
Colombo: Lake House Investments, 1974. 41. Print.

Websites

"The Doctrine Of Res Gestae." Law Teacher. N.p., n.d. Web. 22 July 2015.
<http%3A%2F%2Fwww.lawteacher.net%2Ffree-law-essays%2Fcommon-law%2Fthe-doctrine-of-res-gestae-
law-essays.php>.

""Hearsay" Evidence."Findlaw.N.p., n.d. Web. 20 July 2015.

<http://criminal.findlaw.com/criminal-procedure/hearsay-evidence.html>.

"What Is the Best Evidence Rule?" RSS 20.N.p., n.d. Web. 20 July 2015.
<http://www.rotlaw.com/legal-library/what-is-the-best-evidence-rule/>.

Wikipedia. Wikimedia Foundation, n.d. Web. 20 July 2015.

<https://en.wikipedia.org/wiki/Hearsay>.

Cases

Silva v. Silva69 Peris v. Silva70

Eliatamby v. Eliatamby71 Somasiri72

Mirza Aqbar v.King Emperor73, Subramaniam v. Public prosecutor74

Palaniyandy’s case75 Lejzor Teper’s76

Cullen v. Clarke [1963], R v.Sharpe [1998])

Journals

69
(1920) 22.N.L.R. 27
70
(1913) 17N.L.R. 139
71
(1925) 27.N.L.R. 396
72
(1969) 75.N.L.R. 172
73
1940 (3) All ER 585
74
(1956) 1 W.L.R. 965
75
((1972) 76 N.L.R. 145)
76
(1952) 76 N.L.R.145.
 16

Mahawanniarachchi, Sumedha. "“Hearsay Evidence” – A Comparative Analysis." Bar Association Law Journal
of Sri Lanka 9.3 (2002): n. pag. Acadamia.Edu. Web. 22 July 2015.