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Hearsay Notes

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Hearsay Revision

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7 Hearsay

7.1 The Principle "[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"

7.2 Rationale for exclusion 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 cross­examine
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.

7.3 To what forms of evidence does the hearsay rule apply?

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".

7.4 Definition of the Hearsay Rule EA Section 4 - Interpretation:

"Statements" (a) a spoken or written assertion by a person of any matter; or (b)
non­verbal conduct
of a person that is intended by that person as an assertion
of any matter. "Hearsay statement" (a) was made by a person other than a witness; and (b) 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 cross­examined in a
proceeding." "Proceedings" (a) a proceeding conducted by a court; and (b)
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 - (a) as provided by this subpart or by any other Act; or (b) in cases where­
i. this Act provides that this subpart does not apply; and ii. the hearsay statement is relevant and not otherwise inadmissible under
this Act.

7.5 Spoke and written assertions: express and implied 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

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