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HEARSAY
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Conceptual uncertainty
Uncertainty as to the nature and scope of the doctrine.
What the term hearsay should include is a matter not just of
semantic definition, but of principle and policy.
There are also difficulties concerning the rationale and scope of the
exceptions to the rule.
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Schematic uncertainty
In criminal cases, admissibility of hearsay has to be considered
under the EA and the Criminal Procedure Code.
Both statutes are characterised by very different schemes of
admissibility.
In civil cases, only the EA (and certain specific statutes) governs
admissibility of hearsay. Find the relevant provisions under the
EA and the CPC, put them down at the end of tonight
Is it time for a more holistic treatment of the subject?
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EA, s. 14
Facts showing existence of state of mind or of body or bodily
feeling
14.Facts showing the existence of any state of mind, such as
intention, knowledge, good faith, negligence, rashness, ill-will or
good-will towards any particular person, or showing the existence of
any state of body or bodily feeling, are relevant when the existence of
any such state of mind or body or bodily feeling is in issue or relevant.
Not hearsay if the making of the statement constitutes the facts in issue
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The cases
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Mason CJ, Wilson, Dawson and Toohey JJ all held that this
was admissible as original evidence of the Vs state of mind.
The trial judge took care to advise the jury that this evidence
was only admissible as evidence of Vs state of mind: that she
intended to meet with the Df and not for the further
proposition that she actually met the Df.
Another witness testifies:
(a) Prior to the murder, the wife spoke to someone on
the phone and had arranged to meet the caller and that
the caller was the husband
PP argues that this was not hearsay because the purpose
of tendering the evidence is to show that the wife intended
to meet the husband;
As with the testimony of the other three witnesses, this
was admissible as original evidence of the Vs state of
mind that she intended to meet the caller.
HOWEVER, the testimony was otherwise merely hearsay
assertions concerning the identity of the caller on the
other end of the line.
*(b) Wife passed the phone to her son who said Hello
Daddy to the caller.
Wilson, Dawson and Toohey JJ held that this was hearsay
insofar as it was adduced to prove the identity of the
caller.
We are concerned with Mason CJ judgment as to the
admissibility of this piece of evidence
Held:
Wilson, Dawson and Toohey JJ
The words uttered by the boy on the telephone were no
more than hearsay and were therefore, strictly speaking,
inadmissible.
Whilst it is possible that in some circumstances a greeting
may constitute circumstantial evidence from which the
identity of the person greeted can be inferred, that is not
necessarily the case
In this case, particularly as the child's greeting and
subsequent conversation followed immediately upon the
assertion by his mother that the person to whom he was
about to speak was "daddy", the value, if any, of what the
child said lay in the truth of the implied assertion that
the person to whom he was speaking was in fact
"daddy"
Mason CJ
The objection made to the admissibility of the Witness
testimony that the child said hello daddy is based upon the
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Often in the case of an implied assertion the first factor
will be of sufficient weight to justify the trial judge in
admitting the evidence as reliable for the purposes of
evaluation by the jury
To this extent it can be said that the hearsay rule is less
rigorous in its application to implied assertions than it is in
the case of express assertions
It is for the trial judge to decide whether or not a
particular implied assertion is of a kind to which the
rationale underlying the hearsay rule would be relevant
If the judge determines that an assertion is express or is
otherwise one which it would be dangerous to admit as
hearsay, then the ordinary rules of hearsay and the
various exceptions to the general exclusionary rule will
then be applied
But where the assertion is one made by implication
only, it is necessary for the judge to balance the
competing considerations in order to determine
admissibility, since the dangers associated with
hearsay evidence will not all necessarily be present
Can such an approach be applied to express assertions?
In very rare cases it may be that such an approach will
be appropriate also for an express assertion, for the same
reasons, but it will be uncommon for a situation to arise in
which an express assertion is made which does not come
within a recognized exception to the hearsay rule and yet
which despite being tendered as proof of what it asserts
would not offend the basis of that rule
In particular, an express assertion will often lend itself
more readily to a suspicion of concoction
Evaluation:
Lets the judge decide what weight to give to it; even if the
evidence is admitted, its not the end
Mason court should have this liberty; if it has some weight it
may make a difference in the outcome
Note: does the EA and the CPC allow for this liberty? Again a
problem with having an archaic code.
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Facts:
Df charged with murder by shooting his wife.
Df argued that he discharged the gun accidentally while
cleaning it
To rebut this evidence, PP called evidence from a telephone
operator who testified that she received a call from the wife who
was sobbing/ hysterical. The wife asked for the police and gave
her address.
PPs case was that this happened just before the shooting
Df argued that the operators evidence was hearsay
Issue:
Did wifes request involve an implied assertion that she was
about to be attacked (by her husband)?
Or is statement admissible as original evidence to show wifes
state of mind (fear) and to rebut husbands defence that he
accidentally shot her when cleaning his shotgun?
i.e. not to assert that she was about to be attack but to show
that there was a sobbing and hysterical woman
Fear is used as a rebuttal of the defence of accident (if it was
accidental, she wouldnt have feared)
Or can we take Mason CJs approach leave it to the court to
determine (but this was before Walton v The Queen)
Held: (Lord Wilberforce)
The evidence is not hearsay because it is evidence of the Vs
state of mind, which is relevant to the defence of accident:
The mere fact that evidence of a witness includes evidence
as to words spoken by another person who is not called, is no
objection to its admissibility
Words spoken are facts just as much as any other
action by a human being.
If the speaking of the words is a relevant fact, a witness may
give evidence that they were spoken
A question of hearsay only arises when the words
spoken are relied on "testimonially," i.e., as
establishing some fact narrated by words
The evidence relating to the act of telephoning by the
deceased was, in their Lordship's view, factual and relevant
The knowledge that the caller desired the police to be called
helped to indicate the nature of the emotion - anxiety or fear
at an existing or impending emergency.
It was a matter for the jury to decide what light (if any) this
evidence, in the absence of any explanation from the
defendant, who was in the house, threw upon the situation at
the house
But then the Df argues that the evidence was tendered as
evidence of an assertion by the deceased that she was
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Lord Oliver
The mere fact that people telephoned or called, in itself, is
irrelevant for it neither proves nor renders probable any
other fact.
In order to render evidence of the calls relevant there has
to be added the additional element of what the callers
said, and it is here that the difficulty arises
What was said - in each case a request for drugs - is, of
course, probative of the state of mind of the caller
But the state of mind of the caller is not the fact in
issue and is, in itself, irrelevant
It becomes relevant only if and so far as the existence of
other facts can be inferred from it
Here, the state of mind of the callers can only be probative of
the fact in issue (the intention of the Df only if:
(i) what was said amounts to a statement, by necessary
implication, that the appellant has in the past supplied
drugs to the speaker (those callers who asked for the
usual)
(ii) it imports the belief or opinion of the speaker that the
appellant has drugs and is willing to supply them (the
other callers who did not intimate that they had
transacted with Df previously)
We are now directly up against the hearsay rule:
Point (i) is hearsay:
If it had been sought to introduce the evidence of a
police constable to the effect that a person not called as
a witness had told him, in a conversation in a public
house, that the appellant had supplied drugs, that
would have been inadmissible hearsay evidence and so
objectionable
It cannot make any difference that exactly the same
evidence is introduced in an indirect way by way of
evidence from a witness that he has overheard a
request by some other person for "the usual," from
which the jury is to be asked to infer that which cannot
be proved by evidence of that other person's direct
assertion
Point (ii) is irrelevant:
If, at the trial, the prosecution had sought to adduce
evidence from a witness not that drugs had been
supplied but that it was his opinion or belief that drugs
had been or would be supplied, that evidence would
be inadmissible as amounting to no more than a
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CPC, s. 378(4)
Admissibility of out-of-court statements as evidence of facts
stated.
378.(1) In any criminal proceedings a statement made, whether
orally or in a document or otherwise, by any person shall, subject to
this section and section 379 and to the rules of law governing the
admissibility of confessions, be admissible as evidence of any fact
stated therein of which direct oral evidence by him would be
admissible, if
(4) For the purposes of this section and of sections 379 to 385, a
protest, greeting or other verbal utterance may be treated as stating
any fact which the utterance implies.
Notes
CPC, s 378(4) appears to exclude implied assertions by conduct
from the scope of hearsay rule.
EA, s 8(2)
Motive, preparation and previous or subsequent conduct
8.(1) Any fact is relevant which shows or constitutes a motive or
preparation for any fact in issue or relevant fact.
(2) The conduct of any party or of any agent to any party to any suit
or proceeding in reference to such suit or proceeding OR in
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Those cases which are not manifestly objectionable at first sight, but on closer
inspection fall foul of the hearsay rule
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Notes
One could say that such conduct constitutes implied assertions by
conduct
But s. 8(2) provides that conduct of the parties to the suit or their
agents is admissible
The rationale is that the parties conduct is spontaneous and self-
incriminating
People dont usually do something against their interests
So our main concern is with the conduct of non-parties
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The circumstances are such that the crime must have been
committed either by A, B, C or D. Every fact which shows that the
crime could have been committed by no one else and that it was
not committed by either B, C or D is relevant.
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Facts necessary to explain or introduce relevant facts
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When facts not otherwise relevant become relevant
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Problem: Even if not hearsay, it may not be relevant to the facts in issue
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Real evidence
Even though a photo or a video is an out of court assertion, a video
or a photo captures the exact situation.
No chance of unreliability unless the camera has a fault.
It is as if the camera is a witness the photo or video is a
statement of the camera
You will have to argue that the video output is not clear or that that
the persons on the video were not the parties
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A sketch
A photofit
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Seminar
General Remarks:
There is no right answer
Many items of evidence spread across many categories
Chandrasekera: isnt there an implied assertion by conduct
also?
Doesnt matter if there are many ways of looking at it; explain
all the ways that you can look at it
Unless you are very clear on hearsay, try to attempt the other
questions
Explore the different avenues for classification of the evidence,
how you deal with the evidence and exceptions to hearsay
Classification of hearsay
Overview
The same themes come out:
(i) evidence act versus common law
This is crucial because of the recent case of Lee Chez Kee
Read Lee Chez Kee at least para. 66 until the end of hearsay;
stop before discussion on common intention
Crucial because it clarifies the law in Singapore makes it
clear that the common law hearsay rule doesnt apply in
Singapore
Before Lee Chez Kee, there was a lot of grappling as to
whether the hearsay rule can be included under s. 62, some
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1. Don has been charged with causing grievous bodily harm to Vic
by stabbing him in a street at about 10pm. Don denies having stabbed
Vic and contends that he was at a cinema at the time of the alleged
offence. At the trial, the prosecution (who does not have any direct
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(a) PW1, who was on the same street at the time of the alleged
stabbing, to testify that he did not see Don stab Vic but did hear an
unidentified person (X) shout out: Don, put that knife down. Xs
whereabouts are unknown.
Ms Khng
With Lee Chez Kee, we can admit evidence that was previously
inadmissible by reason of the hearsay rule Can fit this into s. 9 of
the EA?
That Don was carrying a knife is a relevant fact (in the sense of logical
relevance) its existence increases the probability that a fact-in-issue
(the actus reus of the offence) exists.
The only relevant (in the sense of logical relevance) purpose for the
prosecution adducing evidence of Xs statement is to prove that Don
was carrying a knife. This means that the statement is tendered to
prove the facts to which it refers (i.e. the assertion that Don was
carrying a knife).
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(b) PW2, who came to the street after the alleged stabbing, to
testify that he saw a police officer (PO) talking to a person (Y).
PW2 overheard PO asking Y about the identity of the person who had
stabbed Vic. PW2 could not hear what Y said in response but saw Y
making gestures indicating that the person who had stabbed Vic was
very short, very fat and had very long hair. (Don is very short, very fat
and has very long hair.) Y has left Singapore.
Ms Khng
PW2 heard the questions posed to Y. Y was making gestures in
response to the questions.
Diff from chandrasekera
What if the PO
Ms Khng
SMS messages are just regurgitations
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The messages contain an implied assertion that Don was the person
who attacked Vic. As such, it constitutes hearsay because it is
admitted as evidence of the facts to which it refers
Counterarguments:
Argue that the messages constitute real evidence and accordingly
is not hearsay. It is up to the court to draw its inferences from the
real evidence R v Rice
Argue on the basis of the minority decision in R v Kearley that the
purpose of adducing the evidence is not for the underlying
assertion that Don attacked Vic but rather for the purpose of
showing (from the sheer number of identical messages) that Vic
had a motive?... (how will this argument work)
Argue that the evidence is adduced to prove the state of mind of
the senders that they believed that Don would injure Vic
Ms Khng
Criticise R v Cook many differences between a photograph and a
photo-fit
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Preliminary discussion:
What is an implied assertion?
Mason CJ in R v Walton:
An implied assertion is one which can be inferred or
implied from a statement or from conduct, and will
generally not be deliberately intended by the author
It may take the form of conduct or, as here, statements, but
in either case the same principles should be applied with
respect to the admission in evidence
What is the law on implied assertions?
In the UK, the position is that implied assertions constitute
hearsay (R v Teper, R v Kearley, R v Blastland; Wright v Doe d
Tatham)
In Australia, Mason CJ has suggested that a flexible approach
can be taken towards implied assertions: if the dangers which
the rule seeks to prevent are not present or are negligible in the
circumstances of a given case there is no basis for a strict
application of the rule
Ms Khngs remarks
Competing policies:
Probative value v danger of fabrication/unreliability
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Note:
Be careful not to talk about discretion s. 5 states that relevancy
is exhaustive so the court shouldnt have the discretion to exclude
evidence that doesnt fall within the EA
Also consider Phyllis Tan
My prep
Agree with the statement Disagree with the statement
There are good reasons for Inconsistency with express
drawing a distinction between assertions: if the implication
express and implied assertions: were only made express, it
Conduct is more reliable would be hearsay
than words if in doing Unreliability implied
what he does, a man has no assertions can still be
intention of asserting the unreliable
existence of a fact, his
evidence is trustworthy
Lord Bridge in Kearley: Put
shortly, the speakers' words
and conduct are motivated
quite independently of any
possible intention to
mislead and are thus
exempt from the suspicion
attaching to express
assertions and are, in that
sense, self-authenticating
Need for a flexible approach:
Mason CJ in R v Walton
Even if we admit the evidence,
it does not mean that it will be
conclusive the trier of fact
will be advised to ensure that
he doesnt place too much
weight on evidence that
carries implied assertions
because of the lack of cross-
examination
Unnecessary sophistry in the
current law evidence that
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Ms Khngs remarks
There are many statements
Breakdown the statements you may agree with some statements
but not the rest
First statement
The law of evidence has been unnecessarily complicated by
the doctrine of implied assertions.
Agree with this
But has it been unnecessarily complicated; is this
development necessary in light of the need for justice in the
case
Was it unnecessary in Kearley to stick to the implied
assertion is hearsay rule
Second statement:
Evidence of statements or conduct should always be admitted as
circumstantial evidence from which inferences may be drawn. It
is artificial and confusing to consider some of these inferences
as assertions and others as not for the purpose of admissibility.
The only issue is what weight should be accorded to the
inference and this is for the court to decide.
Have there been cases where the statements were
considered as implied assertions but actually arent
Look at Chandrasekera: the signs and gestures were not
implied assertions
Is it artificial and confusing to say that in Chandrasekera it is
evidence from which one can draw inferences
At the end of the day all inferences from circumstantial
evidence can be viewed as implied assertions.
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