#8440 - Hearsay - LAWS 307 Law of Evidence

“[n]o aspect of the hearsay rules seems free from doubt and controversy…” – Cross on Evidence

Subramaniam v Public Prosecutor the PC gave 3 basic elements:

1. A statement made by a person other than the witness;

2. Referred to by the witness;

3. Referred to in support of the “truth of what is contained in the statement”

Cross: it is excluded due to “increased dangers” of reliability and “decreased effectiveness of conventional safeguards”. Such safeguards include:

• Oath – brings home solemnity and increases reliability.

• Cross examination – reduces ability to check details and reliability. NZLC: in ability of cross examination is “the most compelling reason for limiting the admissibility of hearsay evidence.” The right for a defendant to cross-examine a witness is found under s 25(f) BORA.

• Open court – avails the “light which his demeanour would throw on his testimony” (Teper v R)

Further rationales for exclusion:

• Irrelevancy of hearsay evidence – probably too bold a statement but relates to the fact that hearsay is second best evidence, after the direct source – that sometimes cannot be accessed.

• Danger of inaccuracy and fabrication – but there are other ways to test this e.g. other evidence.

• An unwarranted element of surprise – risk reduced by requirement to notify under EA.

ORAL

• R v Gibson “immediately after I was struck by the said stone, a lady going past, pointing [at the] … prisoner’s door, said, ‘The person who threw the stone went in there.’” = hearsay.

DOCUMENTARY

• Patel v Comptroller of Customs – words on bags of seed saying “produce of Morocco” = hearsay.

CONDUCT

• Chandrasekera v R – a woman who had her throat cut and later died. When asked whether C had committee the crime she nodded in front of some witnesses. Held that the witnesses could say what they saw but could not draw the inference that she had said “yes”.

EA Section 4 – Interpretation:

“Statements”

1. a spoken or written assertion by a person of any matter; or

2. non-verbal conduct of a person that is intended by that person as an assertion of any matter.

“Hearsay statement”

1. was made by a person other than a witness; and

2. is offered in evidence at the proceedings to prove the truth of its contents.

“Witness” – “a person who gives evidence and is able to be cross-examined in a proceeding.”

“Proceedings”

1. a proceeding conducted by a court; and

2. any interlocutory or other application to a court connected with that proceeding

GENERAL RULE OF INADMISSIBILITY

Section 17 - A hearsay statement is not admissible except –

1. as provided by this subpart or by any other Act; or

2. in cases where-

1. this Act provides that this subpart does not apply; and

2. the hearsay statement is relevant and not otherwise inadmissible under this Act.

Under the “statements” definition in s 4 the commonality is the intention to communicate. This intention is lacking in an implied assertion.

In relation to the 1999 Draft code NZLC states categorically that “[t]he Code’s definition excludes what are known as ’implied’ or ‘unintended’ assertions from the operation of the hearsay rule.”

This rejects the CL line of reasoning in:

Wright v Tatham – gave an example of a ship’s captain walking up to the ship and saying “this ship is seaworthy” as a hearsay statement and said that if the captain took his family on board the ship and sailed then this would be no different and would amount to an implied assertion.

Under s 4 EA, unless the captain had intended the assertion then there is no hearsay statement.

Similarly to Wright v Tatham:

R v Kearley – 10 telephone calls and 7 visitors seeking drugs from a suspected supplier’s house: both the express statements made and the evidence of the action of the callers held inadmissible as hearsay. Lord Griffiths stated that it was “difficult to think of much more convincing evidence of his activity as a drug dealer than customers beating a path to his door for the same purpose.”

R v Mokaraka – NZCA – fingerprints of the D were found at a burgled property. Defence was that he had burgled property 2 months earlier when it was known as a drug house. On cross examination when asked whether she could be wrong a finger print expert said that that was why there was peer review – which implied that the peer review supported her findings. Fisher J held:

“[e]vidence is no less hearsay when the assertion by the absent speaker is implied rather than expressed”.

In the UK the CL recognition of implied assertions has been reversed by the Criminal Justice Act 2003 (UK).

So in 2006 in R v S Singh – messages left on a cell phone, giving rise to an implied assertion that whoever left them was the kidnapper were not hearsay statements due to the new 2003 Act.

Because the EA breaks hearsay evidence down on the basis of intention the admissibility of implied is not unequivocal Illingworth and Mathias state that “it is fortunate that both express and implied assertions are statements within the s 4 definition” – they note that you may have an implied assertion that was intended to convey what another person should do.

However, Gallavin has noted that “if it can be proved that there was an intention to assert either orally, in writing or by conduct, this would mean that the assertion is not implied … and it capable of coming within the ambit of the hearsay rule.” Therefore “the requirement of an intention to assert acts to distinguish a hearsay statement from a potentially admissible implied assertion.” So in this sense where an implied assertion must be viewed as an unintended assertion, it cannot amount to hearsay.

The problem arises that intention to assert used to be considered the distinguishing feature between circumstantial evidence and implied assertions (part of hearsay where intention was found). Thus it will become difficult to distinguish circumstantial evidence and hearsay if intention is the distinguishing factor: the dividing line will be thin and uncertain as demonstrated by:

R v Rice – UKCA applied a narrow interpretation of ‘intention’ when it admitted an airline ticket with the name ‘rice’ on it as circumstantial and not hearsay evidence in support witness testimony that Rice had flown to Manchester. This distinction was made by contending that the ticket was not used to support that Rice picked up the ticked but rather that he had flown on the flight. “Thus, a passport cannot say ‘my bearer is X’ nor the air ticket ‘I was issued to Y’.”

Cross objects to such reasoning, arguing that it would be “possible to contend that the names of passengers inscribed on an airline ticket are not primarily intended to assert anything.”

Rebuttal: If you complied a list of passengers on a flight from used airline tickets, this would be hearsay because the document itself clearly intends to assert who was on the plane.

Adams contended prior to EA that intention was not a wholly satisfactory breakdown point. Adams would rather focus on “whether the relevance of the evidence depends on what the person believed to be true at the time of acting or speaking out-of-court actions or words.” If it does depend on the person’s belief this is hearsay; if not it is circumstantial evidence.

Graham has retorted that belief is an inappropriate determinant of hearsay on the basis that when a person acts without intending to communicate his “sincerity is not directly at issue” and there is a “guarantee of the trustworthiness of the inference”. However I think this is illogical as it may equally be contended that a person will ensure greater reliability when he intends to communicate, knowing that others may well seek to rely on the representation.

In any case s 4 makes clear that the break down is ‘intention’ for now, and this is in line with the Law Commission’s intention to narrow the hearsay rule. Although the Adam’s test is more workable and transparent it would greatly broaden the hearsay rule and lead to further exclusion of evidence. Rein notes that should “the actor’s belief” become the condition for hearsay then it would be “tolerable” only if we had “innumerable exceptions” to the hearsay rule made under a “principled scheme” – maybe we already have the basis for such an exception under s 18?! Or just get rid of hearsay!

Patel v Comptroller of Customs – words on bags of seed saying “produce of Morocco” = hearsay. This was because it was an express statement; adduced in support of the assertion that the bags were from Morocco (and not for some other purpose e.g. the physical identity of the bags).

R v Munro – Prosecution sought to prove the calibration of a blood-alcohol machine. The issue was whether there was enough evidence to link the certification evidence to the particular machine used. The arresting officer knew identified the machine because it had “3220” written on a plastic label on it. The DC judge found this to be hearsay. In the HC on appeal Simon France J held that it was not hearsay on the basis that “the evidence is given as a piece of identification evidence, circumstantial in nature, from which one might infer that the device is the device to which the Certificate refers. It is no different to saying the machine had a spot of red varnish on it”. The CA upheld this decision.

Gallavin has criticised this case: The label contained an intention to assert but “[s]uch a finding could be reversed, however,...