Hearsay Evidence

Question 1

Hearsay?

Answer 1

Out-of-court statements, oral, written or by conduct, when offered in court as the truth of what is asserted and said by a person who did not perceive them.

Question 2

General rule to hearsay

Answer 2

Hearsay evidence is generally inadmissible.

Question 3

What is the justification for its exclusionary nature?

Answer 3

1. The evidence is not administered under oath it cannot be cross-examined. Truthfulness cannot be ascertained. - Teper v R
2. Deprives the jury and judge the chance to evaluate the demeanor of the witness.- R V Blastland
3. Subject to bias and prejudice.
4. Subject to distortion.
5. Goes against the best evidence rule- Teper v R

Question 4

How to spot hearsay.

Answer 4

1. Determine whether the witness is repeating a statement made out of court by another party.
2. Determine the purpose of the out of court statement. a) is it made to establish the truth of a statement (inadmissible) Subramanium v DPP - HEARSAY WHEN THE AIM IS TO SHOW TRUTHFULNESS
   b) is it made to show that a statement was made (admissible)

Question 5

Section 63 of the Evidence Act

Answer 5

Oral evidence in all cases must be direct evidence. Must have been perceived directly by the witness asserting it.

Question 6

Sparks v R

Answer 6

Statement made by the assaulted child to the mother that it was a coloured boy was ruled as inadmissible as it was hearsay.

Question 7

Scope of hearsay

Answer 7

1. Oral statements- Sparks v R
2. Written statements and dispositions- Myers v DPP
   3.Statements made by conduct such as gestures signs- Chandra-Sekera v R
3. Expressed or implied statements- Teper v R
4. Newspaper cuttings - IEBC v NASA

Question 8

Myers v Dpp

Answer 8

Exceptions to the hearsay rule cannot be extended to documents just because it is the only evidence available or that they are peculiarly reliable.

Question 9

The rationale behind the exceptions to the hearsay rule

Answer 9

R V Beddingfield- The rule against hearsay has operated over the years to exclude highly cogent evidence.

Question 10

Statutory exceptions to the rule against the hearsay rule

Answer 10

Part IV of the Evidence Act
Section 33 of the Evidence Act

Question 11

Part IVof the EA

Answer 11

Statements by persons who cannot be called as witnesses (deceased, cannot be found, incapable of giving evidence or whose attendance cannot be procured without unreasonable delay or expenseare in themselves admissible in the cases outlined in Section 33

Question 12

Section 33(a) Dying declarations

Answer 12

Statement of Deceased Persons relating to his/her cause of death or circumstances that resulted to their death. Such statements are admissible whether the person who made them was or was not, at the time when they were made under the expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.

Question 13

Section 33 b

Answer 13

Statements made in the ordinary course of business.when the statement was made by such person in the ordinary
course of business, and in particular when it consists of an entry or
memorandum made by him in books or records kept in the ordinary
course of business or in the discharge of professional duty; or of an
acknowledgement written or signed by him of the receipt of money,
goods, securities or property of any kind; or of a document used in
commerce, written or signed by him, or of the date of a letter or
other document usually dated, written or signed by him;

Question 14

Section 33 c

Answer 14

Statements against pecuniary/proprietary interest of the maker.when the statement is against the pecuniary or proprietary interest
of the person making it, or when, if true, it would expose him or
would have exposed him to a criminal prosecution or to a suit for
damages;

Question 15

Section 33 e

Answer 15

Statements relating to the existence of a relationship.when the statement relates to the existence of any relationship by
blood, marriage, or adoption between persons at whose relationship
by blood, marriage or adoption the person making the statement
had special means of knowledge, and when the statement was
made before the question in dispute was raised;

Question 16

Section 33 f

Answer 16

Statement relating to family affairs and matters.when the statement relates to the existence of any relationship by
blood, marriage or adoption between persons deceased, and is
made in any will or deed relating to the affairs of the family to which
any such deceased person belonged, or in any family pedigree or
upon any tombstone, family portrait or other thing on which such
statements are usually made, and when such statement was made
before the question in dispute was raised;

Question 17

Section 34

Answer 17

Evidence given in previous legal proceedings is admissible as evidence in a subsequent proceeding or at a later stage in the same proceeding in the event that the witness cannot be presented before court (as per the circumstances listed in Part IV)
2. the proceeding is between the same parties.
3. Opportunity to cross examine
4. Questions in issue are substantially the same

Question 18

Section 38

Answer 18

Statements in public documents- A public document or record made by a public officers in the discharge of their duty is in itself relevant.

Question 19

Wilton and Co v Phillips

Answer 19

A public document coming from a proper place or a certified copy of it is sufficient prove of every other particular stated in it.

Question 20

Exceptions to the public document

Answer 20

A death certificate is not admissible evidence of the cause of death as their other sufficient evidences to prove this- Bird v Keep

Question 21

Feature of admissible public documents- Sturla v Freccia

Answer 21

1. Public duty to inquire and record
2. Public matter
3. Retention duration - longer period admissible
4. Public inspection - Lilley v Pettit- False statement regarding paternity of a child. Adduced regimental records of the army’s movement- inadmissible