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 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.

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”

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.

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 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.

7.6 Implied Assertions and Circumstantial Evidence

The problem arises that intention to assert used to be considered the distinguishing feature between circumstantial evidence and implied assertions (part of hearsay where...

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