Hearsay
30th June 2010( Exactly 1 month remaining)
Overview:
My dearest classmates, honorably to announce, Digging a well when in need of water would be the best dress to suit on me at this contemporary moment. Doubtless, everyone of us can never runaway from viva test tomorrow unless you have any justified reasons(your justification).
'Justified'- in accordance to Cambridge English Dictionary, it simply means one to give a good reason. In Christian theology, 'justification' is God's act of declaring or making a sinner righteous before God. The concept of justification occurs in many books of the Old and New Testaments. In the eyes of Buddhism, it is opined where one has done something with no harm but to do good. Having such a long winded statement of me here might raise your thought of serving no point reading these when the heading states Hearsay. Be patience, it does lead you to a longer journey. However, whether one's reason is justified is to be looked and assessed by the relevant society. My point is, no matter how convincing you think your reasons were to be a justified one in your mind. It does not apply to our law school, if one were to stick that thought in his/her mind, its better to bring that mind to where you belonged to. This world is full with contradictions where all society's mind could be differ. Though a contradict one, it is a 'justified' one.
As per Myers(James William) v DPP[1965] AC 1001 ,Lord Reid in House of Lord expressed his perspective when it comes to the discussion of ' Too many of discretion of the courts which makes the law of hearsay being neither sufficiently clear nor at all predictable'. His Lordship stated where hearsay test has satisfied, the judges has no discretion but to exclude the evidence, no matter how cogent it seems to be. Likewise, in our case, no matter how convincing you are, the admin would at the higher likelihood on not to 'admit' your 'evidence'. We better get prepared then !
Regardless, it is imaginable to have anticipate or it needs not even to predict where we cannot ignore the obvious - we are all cracking on evidence books( of course pray hard so everything will be fine tomorrow). A large number of us are choosing burden of proof as their viva test topic on the very understandable ground that it is rather easy to grasp on as compared to hearsay. The inevitable nature of our life has resulted in one way by leaving us no way but to face it and this letting us getting used to it.Of course, it remains dubious whether we as the homosapiens are that optimistic.
Seeing the hands waving from the starting point, we shall back to our initial concern. It is said, when one has chosen hearsay as their topic, one must be showing the heroism. Nonetheless, it is definitely not at all my case, the reason of me choosing this topic is, this topic is as bulky but it is within our syllabus. Hence, i have made my mind on taking this viva test as my revision so my shoulder at least not so burdened.
Introduction
What is hearsay, the word itself may have already given us a first impression. In a layman language, you heard it somewhere and say it. Before going deeper to our discussion, one principle must first lay down as a foundation in our mind. In general, the court of law does not admit the evidence of hearsay ( HENCE, AN EXCLUSIONARY RULE). Fine, one contentious argument where we may have thought of, why would the court not admitting the hearsay statement even when it appears to be an imperative one? Wouldn't it abuse our right to a fair trial under Art.6 European Convention of Human Right ? Keep that thought floating in your mind first, it will soon be dealt with.
1.0- What is Hearsay?
First at all, what is hearsay in law? It can be found as defined in Sc. 121(2) in Criminal Justice Act 2003- CJA2003.
It reads, "hearsay for the purpose of that section as ' a statement not made in oral evidence, that is relied on as evidence of a matter stated in it." Yes, it does not speak much in this section where common law has a better definition.
A leading legal academician, Sir Rupert Cross has once stated,
"hearsay is an assertion other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact asserted."
This quote was latter used by Lord Havers in the land marked case of hearsay which is R v Sharp(Colin) [1988] 1 W.L.R 7 HL.Till now, this definition remains to be the influential and most quoted one when one dealing with hearsay.( It is now codified under CJA 2003) In short, any hearsay statements shall be excluded.
Logically, how reliable is the hearsay statement? if it were to be classified to be that reliable and should be admissible, why would the seeking of evidence by the parties that is blatantly costly and time consuming when we can simply get any hearsay statement admitted? Every logical minded person would have that lies on their mind. Therefore, the court, the institute of reasoning, would at times not leaving one principle half hanged but with a rationale. Lord Normand sat in the case of Teper v R[1952] AC 480(PC), laid down the rationales behind it:
(a) It is not made under oath
(b) There cannot be cross examination
(c) Repetation is dangerous because ' Evidence of this kind may be fabricated'
* Byles J, R V Jenkins(1869) LR 1 CCR 187 - also stated the same as Lord Normand stated. In Lord Devlin's words, the danger of hearsay is that the juryman, unused to shifting evidence, might treat it as first hand.
In addition, even such an unreliable matter were to be admitted, its also go against the Golden Thread Rule in Woolmington v DPP, by Viscount Sankeywhere everyone is innocent unless proven guilty.
As Blackstonean maxims stated,
"its better that ten guilty persons escape, than that one innocent suffer."
It is to be noted, both Sharp and Teper are both decided prior to the Human Right Act 1998. It has been argued, this assumption may turn out to be completely erroneous and perhaps, out of date.
2.0. The Rule of Hearsay
Importantly, it is necessary to satisfy the test of hearsay in order to render the statements made as 'hearsay' if it successfully passed the test, it can be tendered as original evidence. Be cautious, at this stage, it is not an exception even though it is made as original evidence and admissible. It is admissible when it is NOT a hearsay.In considering of many issues, a general always follow by exceptions. Where the statement didnt pass the test of hearsay and proved to be a hearsay statement nonetheless admitted. As such, it can be classified as an exception. The current test is laid down in:
- Subramanian v DPP[1956] 1 W.L.R 965(PC), it is commonly known as the two tiered test by Mr L.M D De Silva.
-FIRST: There must be a statement made out of court
( Patel v Comptroller of Customs [1966] AC 356 PC, Lord Hodson )
F: The defendant was charged with making a false entry in a Customs form about the provenance of begs of coriander seed,by untruthfully alleged they came from India when in fact there were marked as 'Produce of Morroco'. The prosecution wanted to tender the marks on the bags but it was held, since it is tendered for truth to prove it is not as alleged by the defendant. Therefore, it is a written out of court hearsay statement.
( Chandrasekera v R [1937] AC 220, statement made by gesture )
Another vital issue in regards with this issue, where an implied assertions are subjected to the rule of hearsay therefore inadmissible. R v Kearley - Someone came to the door asking for drugs and calls for drugs under s.115(3) to have the purpose of causing another to believe the matter. Birch argues its to be radical one.
However, it has been overruled by R v Singh(2006), Rose LJ in which an implied assertion no longer subjected to hearsay.
-SECOND: It must be tendered for its testimonial effect
( R v Sparks) - It is tendered for its truth where the 4 yo girl was assaulted, her mother took the statement where the girl told her the man is in coloured, the defendant is white.
( R v Lydon) - Robbery case, papers was found written as 'Sean rule'. There was no one named Sean charged by prosecution,Hence, not tender for truth - admissible.
( R v Turner) - Confession of Third Party, hearsay, inadmissible
( R v Ratten) - Charged for Murder his wife and the gun accidentally shot.The telephone call of the wife asking for police is not tendered for the purpose of truth. Therefore, it was not caught under hearsay rule.
3.0 EXCEPTIONS:
Remember we have something left floating in our mind? Where it would lead to some unjust and unfair if hearsay statement cannot be admitted? Here we go with the exceptions where hearsay statement is admissible.
(a) Common Law Exceptions( No longer effective)
- Dying Declaration
- Res Gestae - Things is part of the event [ Preserved in 118(1)]
->R v Ratten by Lord Wilberforce
->R v Andrews- Andrew has a conviction of manslaughter, there was evidence where the victim replied to a question of a constable saying its Donald that injured him, but the constable wrote as 'Donavon'.It is evidenced that the victim has Scottish accent and had drunk. The HL admitted the evidence via Res gastea.
This rule has been criticised to be obscure and hazy till today.
(b) Statutory exceptions which codified in CJA 2003
Hearsay statement maybe admitted via the admissibility sections under S.114 & 115
* S114(1) Lord Havers Definition + S115 explains the 'matter stated' as:
representation of fact or opinion made by person which includes a representation made in sketch, photo fit or pictorial form that cause another to believe or cause other to act or a machine to operate
( R v Coventry exp Bullard)
->>>S114(1)(a) provisioned that admit the evidence of hearsay that inclusive of S.116 ( The unavailability section) and S.117(Business and other documents)
- S.116(1)must satisfy all the subsections.
- (a) oral evidence by the person who made the statement would admissible.
- (b)the person made statement is identified to the court satisfaction
- (c) subsection two applies
- 116(2) - dead, unfit, outside UK, cannot be found, fear( S116(3)- Death,PI, Financial loss R v Martin) but all to be obtained by leave from court as perS.116(2)(e) R v Acton.
S.117 (1) ,in conjunctive reading, to satisfy:
- (a) oral evidence given and admissible
- (b) 117(2) to be satisfied,
- created or received by person in the course of trade, business, profession or other occupation, or as the holder of a paid and unpaid office
- the person who supplied the document had personal knowledge
- each person through whom the information was supplied from relevant person mentioned in para (a) received the information in the course of trade, business, profession, or other occupation or as the holder of paid and unpaid office.
- (c)if 117(4) requires, then s117(5) needs to be satisfied too.
- (4) - If the documents was prepared for criminal proceeding or investigation then (5) must satisfied, either unavailable as 116(2) or the person cannot reasonably be expected to recollect the matters, which means too long.
However, it must also be appreciated that, if any documents contains doubtful view of its contents, source of info, how it supplied and received and it maybe created as stated in S.117(6). This reflects Lord Normand concerns in Teper v R.
A copy of the documents may also be admitted by those who has read it if the original evidence is lost, damaged or cannot be found. If not, original copy must be tendered.S.133 CJA 2003. R v Nazeer
S114(1)(b) - Preserved Common law exceptions
As provisioned in S.118(2), the common law exceptions are expressly abolished.
Technically, it is still preserved under 118(1) rule 4 of res gestae, it is admitted:
(A) Made emotionally overpowered where there are spontaneous exclamations of the victim of an offence.- may include dying declaration???
(B) Statement relating with the makers performance act. R v Mc Cay - ID
PARADE , POLICE ARE ALLOWED TO GIVE EVIDENCE
(C) Relating to physical sensation ( R v Gloster -dying women making statement named the person responsible, inadmissible) Limited usage.
Relating to mental state ( if its relevant or in issue, is contemporaneous, indicates the maker's mind)
R v Dixon - statement made after killing
R v Ball - Statement of antipathy feeling
R v Glifoyle - Norman charged for murder of his wife, a suicide note was presented. Wife's friend said, Norman asked Paula to write a suicide note in the course of his project. CA admit it should have been admitted under hearsay rule as its reflects the state of mind.
114(1)(c) - Non contentious one, all partied agreed to tender the hearsay statement.
114(1)(d) - It is a inclusionary discretion in which the judge can admit it in the interest of justice , R v J (2009) and R v Sparks may have been different if it is decided today. Lord Cooke is of the view it should be reformed. It should be used sparingly as Lord Standley Burton stated in R v Z(2009) where its a rape case, there is a third pary whom he had abused.
MULTIPLE HEARSAY EVIDENCE
By invoking S.121(1)- cannot admit an earlier hearsay unless it is under s.117,119, 120 or all agreed or in the interest of justice.
Mc Gillvray - if the middle person is merely conduit pipe then its not second hand hearsay.
Another important elements if one wants to admit an hearsay evidence, the maker must be capable( s.123) and creditable ( s.124).
In the new act, it provides various of discretion to judges like 114(1)(d), 116(4), 117(7) and s126(1)(b)- if waste of time. S125, if too much of hearsay evidence, judges hold the power too.
Notwithstanding large chunk of criticism has been made towards the fact the judges hold too much power. But, an inclusionary discretion is now an inevitable feature of a statutory concept.
Sources:
Evidence Textbook, Gregory Durston, Oxford Publisher
Miss Christina Chelliah Guidelines on 'Hearsay'
Brickfields Asia College Textbook, Mr Raja Singam
Blackstone Statute Book on Evidence, 10th Edition
