Evidence_Vikram_Muggers.doc

HEARSAY I.

Rationale for the Hearsay rule__________________________________________3

II.

Problems with the Hearsay rule in Singapore____________________________3

Conceptual uncertainty________________________________________________________3 Archaic provisions in Evidence Act______________________________________________3 Judicial uncertainty___________________________________________________________4 Schematic uncertainty_________________________________________________________4

III.

Nature of the hearsay rule___________________________________________4

The Hearsay rule is not established by the EA_____________________________________4 Lee Chez Kee v PP [2008] SGCA 20, at [67]______________________________________4 Roy S Selvarajah v PP [1998] 3 SLR 517 (HC)____________________________________5

IV.

The Hearsay rule___________________________________________________5

The common law definition: Cross on Evidence___________________________________5 Local acceptance of the common law definition____________________________________5 Soon Peck Wah v Woon Chye Chye [1998] 1 SLR 234______________________________5

Latest CA decision: not appropriate to adopt common law definition__________________5 Lee Chez Kee v PP [2008] SGCA 20, at [73] - [74]; VK Rajah JA_____________________5

V.

Elements of the rule___________________________________________________6 Not hearsay where the statement reveals the state of mind of a party (state of mind of the party must be relevant)______________________________________________________________6 PP v Subramaniam, [1956] MLJ 58; [1956] 1 WLR 965, 970 (PC)_____________________6 R v Ratten [1972] AC 378 (PC) (see below)_______________________________________7 R v Kearley [1992] 2 AC 228 (HL) (see below)____________________________________7 R v Blastland [1986] AC 41 (HL)_______________________________________________7 EA, s. 14__________________________________________________________________8 Not hearsay if the making of the statement constitutes the facts in issue___________________8 Choo Pit Hong Peter v PP [1995] 2 SLR 255 (HC)_________________________________8

VI. A.

Types of assertions that constitute hearsay______________________________9 Express assertions: by statement or by conduct_______________________________9 Chandrasekera v The King [1937] AC 220 (PC)____________________________________9 R v Gibson (1887) 18 QBD 537________________________________________________9

B.

Implied assertions: by statement____________________________________________9 Why do we draw a distinction between implied and express assertions?________________________9 The cases________________________________________________________________________10 Teper v R [1952] AC 480 (PC)________________________________________________10 Walton v R (1989) 166 CLR 283 (84 ALR 59)____________________________________10 R v Ratten [1972] AC 378 (PC)_______________________________________________13 R v Kearley [1992] 2 AC 228 (HL)_____________________________________________14 Wright v doe d Tatham (1837) 7 Ad & E 313; 112 ER 488__________________________19

C.

Implied assertions: by conduct____________________________________________20 Wright v doe d Tatham (see above)_____________________________________________20 CPC, s. 378(4)_______________________________________________________________21 Notes____________________________________________________________________21 EA, s 8(2)___________________________________________________________________21 Notes____________________________________________________________________21

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HEARSAY D.

“Negative hearsay” (assertions by omission)_________________________________22 The position at common law_________________________________________________________22 R v Patel [1981] 3 All ER 94 (CA)_____________________________________________22 R v Shone (1983) 76 Cr App Rep 72 (CA)_______________________________________22 The position under the Evidence Act___________________________________________________22 Sagurmull v Manraj [1900] 4 CWN ccvii________________________________________23

VII. A.

“Loopholes” to the hearsay rule______________________________________23 Statements tendered to prove the maker’s state of mind_______________________23 Cases where it has worked___________________________________________________________23 R v Ratten [1972] AC 378 (PC) (see above)______________________________________23 Problem: Even if not hearsay, it may not be relevant to the facts in issue_______________________23 R v Kearley (see above)_____________________________________________________23 R v Blastland [1986] AC 41 (see above)_________________________________________23

B.

Hearsay and real evidence________________________________________________24 R v Rice [1963] 1 QB 857 (CCA)______________________________________________24 Interface between hearsay and real evidence in the context of mechanical or technological output__24 A video film or photograph________________________________________________________24 Reg. v. Tolson (1864) 4 F. & F. 103, 104 Willes J.:_________________________________24 A sketch_______________________________________________________________________25 R v Percy Smith [1976] Crim LR 511___________________________________________25 A photofit_____________________________________________________________________25 R v Cook [1987] QB 417_____________________________________________________25 PP v Ang Soon Huat [1991] 1 MLJ 1 (HC)_______________________________________26

Seminar_______________________________________________________________27

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HEARSAY

I.

Rationale for the Hearsay rule

 Hearsay evidence is inferior evidence.  Witness did not personally perceive facts.  He cannot verify the truth of facts of which he has no personal knowledge  Danger of miscommunication  Did the witness really “hear” him “say” that?  Possibility of fabrication.  The Court cannot observe the demeanour of the maker of the statement.  The maker of the statement was not bound by oath when he made the statement  A witness who testifies in court from personal knowledge is aware that if he testifies falsely, he may be prosecuted for perjury.  In contrast, a witness who testifies on what someone else said has little to lose if he distorts the true facts or exaggerates  The maker of the statement cannot be cross-examined.  The accuracy of the maker’s perception and his veracity cannot be assessed and tested in cross-examination  The Trier of fact may put too much emphasis on hearsay evidence.  Hearsay evidence, even if admitted under one of the exceptions to the rule, gets little weight  But the problem is that when we had jury trials, when hearsay evidence is admitted, there is a risk that the jury may put too much emphasis on hearsay evidence  The accused should only be convicted on reliable evidence.

II.

Problems with the Hearsay rule in Singapore

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.

Archaic provisions in Evidence Act  The EA statute is 115 years old (enacted in 1893 and based on the Indian Evidence Act of 1872).  The great majority of the provisions are original.

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HEARSAY  (There have been some amendments although these have been piecemeal.)  Although the Law of Evidence in other countries has advanced considerably, much of the EA remains rooted in the 19th century.  For example, the issue of legitimacy in the Evidence Act is addressed by rules governing presumptions (see s 114 of the EA), although the matter is now resolvable through identification by a DNA sample.

Judicial uncertainty

 The tendency of the courts over many years has been to refer to common-law decisions in deciding on the admissibility of hearsay (sometimes without reference to the statutes).  This has created uncertainty in the relationship between the statutes and common law.  Recent decisions have acknowledged this difficulty.

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?

III.

Nature of the hearsay rule

The Hearsay rule is not established by the EA  The recent cases are clear that the hearsay rule is not established by the EA  Stephen didn’t want to include exclusionary rules in the EA  Judges weren’t professionals in Stephen’s time; So Stephen didn’t want the law to be too complex  His structure was → “tell me what is admissible”  Now the position is clear that the EA doesn’t have a rule against hearsay → Lee Chez Kee at [67]; Selvarajah [40]  S. 62, which concerns direct evidence, is not a rule against hearsay  Some courts have said that it is but those are old decisions  Lee Chez Kee has clarified that it is wrong to hold that s. 62 contains the hearsay rule (at [73]):  VK Rajah JA: “To say that s 62 imports the hearsay rule is to confuse a description of the mode of proof with the type of proof”

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HEARSAY  But the EA admits out of court statements of relevant facts to the extent that the statements are declared relevant by ss. 17 – 40: Lee Chez Kee v PP [2008] SGCA 20, at [67]

 VK Rajah JA:  “It must be clarified that the EA does not contain an express definition of hearsay. Instead, the EA contains an implicit acknowledgement of the rule. Implicitly acknowledged through the exceptions to hearsay provisions  As Prof Tan Yock Lin perceptively notes in his seminal work, Criminal Procedure (LexisNexis, 2007) vol 2 at ch XVI para [3], hearsay in the EA is perceived as being a statement of relevant facts and as such is an irrelevant fact as opposed to a statement which is itself declared by the EA to be a relevant fact.  This is assured by the absence of any general provisions making statements of relevant facts themselves relevant facts.  Where exceptions to the hearsay rule are intended to be relevant, they are rendered specifically as relevant facts. There are thus no real “exceptions” in the EA; more accurately, the EA gives effect to these common law exceptions to the hearsay rule.” Roy S Selvarajah v PP [1998] 3 SLR 517 (HC)

 Yong Pung How CJ at [40]:  It is trite law that the evidence of a statement made to a witness by a person who is not himself called as a witness is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement: Subramaniam v PP [1956] 1 WLR 965.  It is not hearsay if the statement is tendered to show the fact that it is made.  The Evidence Act does not formulate the rule against hearsay evidence.  Rather it adopts an inclusionary rule, stating what may be admitted in evidence.  Under s 5 of the Evidence Act, evidence may be given in any proceedings of fact in issue or relevant fact.  The common law definition of hearsay corresponds with the terminology of the Evidence Act.  Statements of relevant facts are hearsay and inadmissible unless they fall within an exception to the hearsay rule since they are adduced to prove the facts to which they refer.  However, where the statement itself is relevant, then it is the fact that the statement was made which is in issue.

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HEARSAY

IV.

The Hearsay rule

The common law definition: Cross on Evidence “An assertion other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact asserted.” (Cross on Evidence, 6 ed, p 38)

Local acceptance of the common law definition Soon Peck Wah v Woon Chye Chye [1998] 1 SLR 234

Yong Pung How CJ at [27] “The assertions of persons made out of court whether orally or in documentary form or in the form of conduct tendered to prove the facts which they refer to (ie facts in issue and relevant facts) are inadmissible unless they fall within the scope of the established exceptions.”

Latest CA decision: not appropriate to adopt common law definition Lee Chez Kee v PP [2008] SGCA 20, at [73] - [74]; VK Rajah JA

 “There appears to be two problems with this judicial view as set out in Soon Peck Wah.  (1) First is the problem with the proposition that the hearsay rule finds implicit expression in s 62 of the EA.  As Prof Tan correctly notes in Criminal Procedure at ch XVI para [52], this view continues to mistake a prohibition on the use of indirect evidence for a prohibition on the use of hearsay evidence. To say that s 62 imports the hearsay rule is to confuse a description of the mode of proof with the type of proof.  Section 62 is not concerned with relevancy; it simply tells us how to prove facts which already have been found to be relevant by the definition of relevancy in the earlier parts of the EA.  (2) The second problem with this judicial view is the reference to the applicability of the common law exceptions to the hearsay rule.  Prof Pinsler in “Approaches to the Evidence Act: The Judicial Development of a Code” (2002) 14 SAcLJ 365 at 382 neatly summarises the many facets of this problem.  On one level, there is no question that there are a number of exceptions in English law which are not recognised or only acknowledged in modified form by the EA.  Their application would thus be inconsistent with the EA.

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HEARSAY  Further, Sir James Stephen intended to comprehensively formulate the traditional exceptions to the hearsay rule in ss 17 to 41 of the EA.  The application of all the common law exceptions without discrimination would dislocate this scheme.

V.

Elements of the rule

Not hearsay where the statement reveals the state of mind of a party (state of mind of the party must be relevant) PP v Subramaniam, [1956] MLJ 58; [1956] 1 WLR 965, 970 (PC)

Df charged with being a terrorist. Df claimed that terrorists threatened him with death if he didn’t join the terrorist cause. Evidence of the threatening statement was not hearsay. What was in issue was the defence of duress, which depended on how the Df reacted to the terrorists irrespective of whether the threats would have been actually carried out. The statement was adduced as evidence not of the truth of its assertions (that Df would be killed) but rather the fact that the statement was made (the Df himself perceived the making of the statement with his sense of hearing).  Facts:  Df was found wounded and was charged with being a terrorist;  Df claimed that he was forced by terrorists to operate with them and that he would be killed if he did not comply;  trial judge excluded the Df’s evidence (that terrorists told him that they would kill him) as hearsay  Held: not hearsay (Mr. LMD De Silva)  “Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay.  [The test]:  It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement.  It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.  The fact that the statement was made, quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or of some other person in whose presence the statement was made.  In the case before their Lordships statements could have been made to the appellant by the terrorists, which, whether true or not, if they had been believed by the appellant, might

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HEARSAY reasonably have induced in him an apprehension of instant death if he failed to conform to their wishes. R v Ratten [1972] AC 378 (PC) (see below)

Df charged with murdering wife by shooting her. Telephone operator was called as witness to give evidence that the wife called her to ask for the police and that she was hysterical. Held: statement was admissible as original evidence of the V’s state of mind (this was relevant to the defence of accident). Even if it were hearsay, it was admissible under the doctrine of res gestae. R v Kearley [1992] 2 AC 228 (HL) (see below)

The state of mind of the callers was not relevant to the fact in issue (which was whether the accused had the intention to supply drugs). R v Blastland [1986] AC 41 (HL)

Df charged for murder and buggery. Sought to adduce evidence from persons who were told by M about the murder before the murder was public knowledge. Held: hearsay. The state of mind of M was per se irrelevant. What was relevant was the implication that therefore M killed the boy. However, if this was the object of adducing the evidence, then it was hearsay.  Facts:  Df was charged with buggery and murder of a boy  Df sought to adduce evidence in the form of testimony from various witnesses that M told them about the boy’s murder before the murder was public knowledge  Df argued that this evidence was not hearsay because it was adduced to prove M’s state of mind (i.e. his knowledge of the murder)  Held (Lord Bridge): state of mind irrelevant  What a person said or heard said may well be the best and most direct evidence of that person's state of mind.  This principle can only apply, however, when the state of mind evidenced by the statement is either itself directly in issue at the trial or of direct and immediate relevance to an issue which arises at the trial.  It is at this point, as it seems to me, that the argument for the Df breaks down.  The issue at the trial of the appellant was whether it was proved that the Df had buggered and murdered V.  M’s knowledge that V had been murdered was neither itself in issue, nor was it, per se, of any relevance to the issue.

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HEARSAY What was relevant was not the fact of M’s knowledge but how he had come by that knowledge.  He might have done so in a number of ways, but the two most obvious possibilities were either that he had witnessed the commission of the murder by the appellant or that he had committed it himself.  The statements which it was sought to prove that M made, indicating his knowledge of the murder, provided no rational basis whatever on which the jury could be invited to draw an inference as to the source of that knowledge.  To do so would have been mere speculation.  Thus, to allow this evidence of what M said to be put before the jury as supporting the conclusion that he, rather than the appellant, may have been the murderer, in the light of the principles on which the exclusion of hearsay depends, to be open to still graver objection than allowing evidence that he had directly admitted the crime.  If the latter is excluded as evidence to which no probative value can safely be attributed, the same objection applies a fortiori to the admission of the former. 

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 Choo Pit Hong Peter v PP [1995] 2 SLR 255 (HC)

The Df’s false statements to the CAD constituted the crime with which he was charged and so they did not infringe the hearsay rule.  Facts:  Df was charged under s. 193 of the Penal Code 1 for intentionally making false statements to CAD officers “193. Punishment for false evidence. Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment for a term which may extend to 7 years, and shall also be liable to fine; and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment for a term which may extend to 3 years, and shall also be liable to fine.” 1

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HEARSAY  Df challenged the admissibility of the statements  Held: Yong Pung How CJ  “Any challenge to the admissibility of the statements made to the CAD officers is misconceived  Regardless of whether the statements were confessions, the statements are not evidence to prove the two charges of giving false evidence  They are facts in issue and cannot be excluded even if they were made as a result of threats, inducements or promises  If that was indeed the case, the proper course is to rely on one of the general defences, if any are available, in the Penal Code.”

VI.

Types of assertions that constitute hearsay

A. Express assertions: by statement or by conduct Chandrasekera v The King [1937] AC 220 (PC)

Deceased could not speak because her throat was cut by an assailant. Gestures made by her as to the identity of her assailant was hearsay but admissible under one of the exceptions.  Facts:  Woman’s throat was cut; on being asked immediately afterwards who did this to her, she indicated by signs that it was the Df who attacked her;  One of the Witnesses also asked her directly if it was the Df who attacked her and she nodded  Held: gesture was hearsay but was admissible under s. 32(a) (Lord Roche)  The main question is whether any part of the evidence as to what passed between the deceased and the witness should have been admitted.  In their Lordships' opinion the ruling of the trial judge was correct.  It is to be observed that in the section the word used is "verbal" and not "oral" which is used elsewhere in the Ordinance  It is unnecessary to decide whether the question put "Was it [the defendant]?" and the nod of assent would have constituted an oral statement made by the deceased, but their Lordships are clearly of opinion that it constituted a verbal statement made by her.  The case under consideration closely resembles the case of a person who is dumb and is able to converse by means of a finger alphabet  Remarks: this is an example of an express assertion by conduct

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HEARSAY R v Gibson (1887) 18 QBD 537

V was hit by a stone. Passer-by told him that the person who threw the stone went into a house where the Df was found. Held: passer-by’s statement was hearsay.  Facts:  Df quarrelled with V’s son in a pub.  Df and V left the pub.  As V walked opposite Df’s home, V was struck in the head with a stone.  A passer-by, who was not called as witness, told V that the person who threw the stone went into a house to which she pointed.  Df was found in that house and was convicted by jury  Held: passer-by’s statement was hearsay (Lord Coleridge)  “It is admitted that the statement was not made in the prisoner's hearing, and therefore could not legally be given in evidence against him”

B. Implied assertions: by statement Why do we draw a distinction between implied and express assertions?  Does the absence of intentional fabrication in the case of an implied assertion make it more reliable than express assertions?  Is conduct more reliable than words → i.e. that a person who acts on the basis of his belief?  Some issues:  Does the EA exclude implied assertions expressly, impliedly or not at all  CPC’s position is clear → s. 378(4)  Lord Bridge in R v 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”  “…if in doing what he does a man has no intention of asserting the existence or non-existence of a fact, it would appear that the trustworthiness of evidence of this conduct is the same whether he is an egregious liar or a paragon of veracity. Accordingly, the lack of opportunity for cross-examination in relation to his veracity or lack of it would seem to be of no substantial importance. Accordingly, the usual judicial disposition to equate the "implied" to the "express" assertion is very questionable. (Falknor, "The 'HearSay' Rule as a 'See-Do' Rule: Evidence of Conduct" (1961) 33 Rocky Mt.L.Rev. 133, 136.)

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HEARSAY The cases Teper v R [1952] AC 480 (PC)

Bystander’s statement “your place burning and you are going away from the fire” was an implied assertion that the Df was in the vicinity at the time of the fire  Facts:  Df charged with arson of his shop;  A police officer testified as follows:  “I heard a woman's voice shouting ‘Your place burning and you going away from the fire’;  The woman was not called as a witness  Held: excluded; statement was hearsay and did not fall within the res gestae exception (Lord Normand)  Rationale of the hearsay rule:  “The rule against the admission of hearsay evidence is fundamental.  It is not the best evidence and it is not delivered on oath.  The truthfulness and accuracy of the person whose words are spoken to by another witness cannot be tested by crossexamination, and the light which his demeanour would throw on his testimony is lost.”  [court proceeds to consider if the res gestae exception applies; the court seemed to accept, without expressly saying so, that implied assertions can constitute hearsay] Walton v R (1989) 166 CLR 283 (84 ALR 59)

The statement “hello daddy” by a child over the telephone amounted to an implied assertion that the child was speaking to its father. Mason CJ held that the possibility of fabrication was so unlikely that the admission of the statement could not be regarded as improper. “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”  Facts:  Df charged with murder of wife.  Three witnesses testify that the wife told them that she was going to meet the Df  PP argued that the purpose of adducing this evidence was to establish V’s state of mind → that she intended to meet Df; this state of mind is relevant because this piece of evidence, taken with other evidence, leads to the inference that she acted on her intention

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HEARSAY Mason CJ, Wilson, Dawson and Toohey JJ all held that this was admissible as original evidence of the V’s state of mind. The trial judge took care to advise the jury that this evidence was only admissible as evidence of V’s 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 V’s 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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HEARSAY



 





assumption that the statement contains an implied assertion by the child as to the identity of the caller and the conclusion that this assertion amounts to inadmissible hearsay What is an implied assertion?  “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 It is necessary to apply the same rules regarding admissibility to both implied and express assertions However, where an assertion is not made directly by the words or actions of a person, but is derived by implication from those words or actions there will, depending on the relevant circumstances of the case, often be special considerations relevant to the determination of admissibility *“The hearsay rule should not be applied inflexibly  When 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  Equally, where in the view of the trial judge those dangers are outweighed by other aspects of the case lending reliability and probative value to the impugned evidence, the judge should not then exclude the evidence by a rigid and technical application of the rule against hearsay  It must be borne in mind that the dangers against which the rule is directed are often very considerable, as evidenced by the need for the rule itself.  But especially in the field of implied assertions there will be occasions upon which circumstances will combine to render evidence sufficiently reliable for it to be placed before the jury for consideration and evaluation of the weight which should be placed upon it, notwithstanding that in strict terms it would be regarded as inadmissible hearsay. Here:  The extreme unlikelihood of concoction on the part of the child would have been a factor favouring admission of the statements.  The lack of opportunity for cross-examination of the child as to his perception or understanding would have been a factor pointing in the opposite direction

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HEARSAY 

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. R v Ratten [1972] AC 378 (PC)

Df charged with murdering wife by shooting her. Telephone operator was called as witness to give evidence that the wife called her to ask for the police and that she was hysterical. Held: statement was admissible as original evidence of the V’s state of mind (this was relevant to the defence of accident). Even if it were hearsay, it was admissible under the doctrine of res gestae.

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HEARSAY  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.  PP’s case was that this happened just before the shooting  Df argued that the operator’s evidence was hearsay  Issue:  Did wife’s request involve an implied assertion that she was about to be attacked (by her husband)?  Or is statement admissible as original evidence to show wife’s state of mind (fear) and to rebut husband’s 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 wouldn’t have feared)  Or can we take Mason CJ’s 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 V’s 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 16

HEARSAY being attacked by the accused, with the effect that it was hearsay.  Their Lordships do not consider that there is any hearsay element in the evidence  But they think it right to deal with the appellant's submission on the assumption that there is: i.e., that the words said to have been used involve an assertion of the truth of some facts stated in them and that they may have been so understood by the jury  [Lord Wilberforce goes on to find that even if the evidence were hearsay, it would be admissible under the doctrine of res gestae]  Evaluation:  The fact that their Lordships saw that it was necessary to address the possibility that the evidence contained an implied assertion suggests that it is difficult to determine when evidence of a state of mind may contain an implied assertion. R v Kearley [1992] 2 AC 228 (HL)

Prosecution sought to adduce evidence of certain telephone calls made to the Df’s house. The callers requested to speak to the Df and asked to be supplied with drugs. Held: (Majority) Evidence not admissible to show callers’ states of mind or belief – irrelevant; Evidence not admissible to show that K was a supplier of drugs: Callers were all impliedly asserting the fact that K was a drug dealer (hearsay). (Minority) The calls and visits were not circumstantial evidence showing that K established a market for the supply of drugs.  Facts:  A small quantity of drugs was found in K’s home; this was insufficient to charge him with trafficking  Police remained on premises for several hours for the purpose of securing more evidence  Police answered numerous telephone calls. Callers asked for “Chippie” (K’s nickname) to supply “the usual”.  Visitors also came to the house asking for Chippie so that they could purchase drugs.  PP didn’t call these callers and visitors to testify  But police officers gave evidence of their conversations with the callers and the visitors  The purpose of evidence: to show that K was a supplier of drugs and therefore was guilty of trafficking.  Issue:  Did the statements carry an implied assertion that K was a supplier?  Not an express assertion: the callers didn’t actually say that K was a supplier

17

HEARSAY By seeking drugs from him, they impliedly asserted that K was a supplier  Trial judge admitted the evidence and Court of Appeal endorsed admissibility.  Held: Majority view (Lords Bridge, Ackner and Oliver)  Lord Bridge  (i) The first question is whether the fact of the request for drugs having been made is in itself relevant to the issue whether the defendant was a supplier  The fact that words were spoken may be relevant for various purposes, but most commonly they will be so when they reveal the state of mind of either the speaker or the person to whom the words were spoken when that state of mind is itself in issue or is relevant to a matter in issue  Here:  The state of mind of the person making the request for drugs is of no relevance at all to the question whether the defendant is a supplier  The sole possible relevance of the words spoken is that by manifesting the speaker's belief that the defendant is a supplier they impliedly assert that fact  If the speaker had expressly said to the police officer that the defendant had supplied him with drugs in the past, this would clearly have been hearsay  The question then is if the words coupled with any associated action of a person not called as a witness are relevant solely as impliedly asserting a relevant fact, may evidence of those words and associated actions be given notwithstanding that an express assertion by that person of the same fact would only have been admissible if he had been called as a witness?  English authorities are clear that the answer is no: Wright v. Doe d. Tatham  The recent decision of Reg. v. Blastland [1986] A.C. 41 clearly affirms the proposition that evidence of words spoken by a person not called as a witness which are said to assert a relevant fact by necessary implication are inadmissible as hearsay just as evidence of an express statement made by the speaker asserting the same fact would be  (ii) The next question is whether, if evidence from a police officer that he heard one person, in the absence of the defendant, requesting a supply of drugs from the defendant 

18

HEARSAY is inadmissible to prove the defendant's intent to supply on the ground that it is hearsay, the evidence becomes admissible if the prosecution are in a position to tender evidence relating to a plurality of such requests made at the same place and on the same day  This proposition is without authority  Although the probative value of a plurality of such requests is high, it is clear that the probative force of hearsay evidence in particular circumstances has never afforded a ground for disregarding the hearsay rule  Lord Bridge fully appreciates the arguments in favour of a limitation to the operation of the hearsay rule for implied assertions  However he feels that any change should come from Parliament and not the courts:  “However strong the temptation to legislate judicially in favour of what is seen as a "common sense" result and however tardy Parliament may appear to be in reforming an area of the law which is seen to be in need of radical reform, the uncertainty and confusion to which well intentioned attempts at judicial legislation can lead have been clearly demonstrated by recent decisions of your Lordships' House.  The operation of the hearsay rule in modern conditions is in many respects unsatisfactory.  But Lord Reid's warning that in this field of the law a judicial "policy of make do and mend is no longer adequate" is as true today as it was in 1964.  However long overdue we may feel an overhaul of the hearsay rule in criminal cases to be, we should not be deluded into thinking that we can achieve it piecemeal  Lord Ackner  Each of the requests for drugs was evidence of the state of mind of the person making the request  But the state of mind of the person making the request was not an issue at the trial; accordingly evidence of his request was irrelevant and therefore inadmissible  The application of the hearsay rule does not, on the facts so far recited, fall for consideration. The evidence is not admissible because it is irrelevant  The hearsay rule is triggered if the very nature of the request or requests carries with it a permissible implication that the appellant was a supplier of drugs

19

HEARSAY    

In deciding whether the rule is being breached, it is essential to examine the purpose for which the evidence is tendered That the proposition is asserted by way of necessary implication rather than expressly cannot, to my mind, make any difference The object of tendering the evidence would be to establish the truth of what is contained in the statement. That is precisely what the rule prohibits If a convincing case can be made out for relaxing the hearsay rule's application to the type of situation which has arisen in this appeal, then it must be achieved by legislation

20

HEARSAY  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

21

HEARSAY







statement of belief or opinion unsupported by facts upon which the belief is grounded  A fortiori that same inadmissible belief or opinion cannot be introduced by inference from the reported statement of someone who is not even called as a witness Ratten v The Queen is distinguishable:  In that case, the evidence had a double relevance  (i) The fact that a call was made from the premises at all at that time was directly in issue and the circumstance in which it was made (frightened caller), was clearly material  That is a long way from the instant case where the conversation is relied upon not as a circumstance surrounding an act of the accused but as indicative of the speaker's view of the accused's intentions.  (ii) In so far as it was considered permissible in Ratten to draw from the contents of the call the inference that the deceased was saying that she was under attack from her husband and that that was true, that could be justified only by treating the contents as part of the res gestae  It has not been contended that the calls in the present case, made after the arrest of the appellant, can come into that category Can it make any difference that in fact the evidence submitted related to a large number of callers and requests made within a matter of a few hours?  The multiplicity of calls can go only to indicating that a shared belief is more likely to be true than a belief held by a single person or a few people  That, however, goes to weight or reliability, not to admissibility and it cannot in itself make admissible that which is inadmissible Any reform should come from Parliament:  “…very conscious of the difficulty of obtaining direct evidence from witnesses in the prosecution of drug offences and there may well be a good case for relaxing the rule which excludes hearsay either generally or in cases such as the present so long as the jury receives an appropriate direction as to the circumspection with which hearsay evidence should be received.  But the rule has been evolved and applied over many years in the interest of fairness to persons accused of

22

HEARSAY crime and if it is now to be modified that should, in my opinion, be done only by the legislature”  Held: Minority view  Lord Browne-Wilkinson  (i) First issue: whether the making of calls by persons seeking drugs is relevant at all to the charge that the accused had an intent to supply  the fact that there were a number of people seeking to buy drugs was legally relevant and admissible as showing that there was a market to which the appellant could sell, even though such evidence was also capable of giving rise to an impermissible secondary inference, viz. that the callers believed Chippie supplied drugs  (ii) Second issue: if relevant, could those facts be proved by the police officers' evidence of the calls or did such evidence breach the hearsay rule  Telephone or personal calls, in the absence of proof of the purpose of the calls, are evidence of nothing  In cases such as the present there is no contravention of the hearsay rule if a witness gives evidence of what the callers said provided the evidence is not being used testimonially (i.e to prove the truth of what they said) but only to explain the callers' purpose in making the calls  Wright v doe d Tatham is not in point  The calls show an admissible fact, i.e. the existence of a potential market, the case is not in point.  The letters in Wright v. Doe d. Tatham were being tendered testimonially to prove the belief of the writers: the calls in this case are being tendered to prove a relevant fact and not the belief of the callers.  Accordingly the hearsay rule does not apply  The reasoning which has to the view that evidence of multiple calls is both relevant and admissible applies also to one call alone  But a single call would have little probative value in showing the existence of a market  The possible prejudice to the accused by the jury drawing the wrong inference would be so great that I would expect a judge in his discretion to exclude it2  Evaluation:  The majority decision can be justified on basis that an out of court express assertion that K is a drug dealer would not have been admissible. 2

As is possible under English law, but not Singapore law → Phyllis Tan

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HEARSAY  The majority view is consistent with R v Teper  But the minority view is compelling  We are not relying on an implied assertion → we are relying on the fact that 17 people called at his house.  If it were just one person calling at his house, then it would be an implied assertion that the Df was a trafficker  The majority view is that the number of callers is irrelevant  Remarks:  Why is this is a case of implied assertion and not express assertion?  Lord Griffiths: “The requests for drugs made by the callers were

not hearsay as generally understood, namely an out-of-court narrative description of facts which have to be proved in evidence. The callers were neither describing the appellant as a drug dealer nor stating their opinion that he was a drug dealer. They were calling him up or visiting him as customers, a fact revealed by the words they used in requesting drugs from him.”

Wright v doe d Tatham (1837) 7 Ad & E 313; 112 ER 488

Issue was whether the testator was mentally competent to make a will; party sought to adduce letters that were written to the testator for the purpose of showing that the writers must have assumed his sanity. Held: Letters were rightly excluded because they were tendered to prove the truth of the writer’s assumptions as to the testator’s sanity.  Facts:  One of the facts-in-issue was the testator’s sanity  Letters written to the testator were adduced to show that the writers assumed the testator’s sanity  Held (Parke B)  All facts as have not been admitted by the party against whom they are offered, or some one under whom he claims, ought to be proved under the sanction of an oath, either on the trial of the issue or some other issue involving the same question between the same parties or those to whom they are privy.  “the letters are without doubt admissible on an issue in which the fact of sending such letters by those persons, and within that limit of time, is relevant to the matter in dispute;”  "But the question is, whether the contents of these letters are evidence of the fact to be proved upon this issue, - i.e., the actual existence of the qualities which the testator is, in those letters, by implication, stated to possess: and those letters may be considered in this respect to be on the same footing as if they had contained a direct and positive statement that he was competent.

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HEARSAY  For this purpose they are mere hearsay evidence, statements of the writers not on oath, of the truth of the matter in question, with this addition, that they have acted upon the statements on the faith of their being true, by their sending the letters to the testator."  Evaluation:  The majority in Kearley approved Wright  Would the minority in Kearley have said that since 3 people have written the letters, let us look at the fact that 3 people have written those letters and we’ll decide on the weight later  i.e. admit the statement and let the court determine whether it should draw the inference/implication that Kearley was insane

C. Implied assertions: by conduct  No cases have actually considered implied assertions by conduct. We only have examples given by Parke B in Doe d Tatham  Rupert Cross argued that a distinction should be made between implied assertions in statements and conduct:  Cross felt that implied assertions made by conduct were more reliable than those made by statement  “deeds speak louder than words” → would a Captain set sail unless he was sure that the ship were seaworthy  Cross’s views are found in s. 378(4) of the CPC  s. 378(4) recognises implied assertions in statements (but not conduct) as hearsay  This was because the amendments to the CPC which included s. 377 – 385 were based on a report of the English Criminal Law Revision Committee (of which Cross was a member)  *The crucial point to note is that implied assertions would not be mentioned in provisions dealing with the exceptions to the hearsay rule if the rule did not apply to implied assertions → the implication is that the hearsay rule does apply to implied assertions by statements Wright v doe d Tatham (see above)

 “Others were supposed on the part of the plaintiff in error, which, at first sight, have the appearance of being mere facts, and therefore admissible, though on further consideration they are open to precisely the same objection.  Of the first description are the supposed cases of a letter by a third person to any one demanding a debt, which may be said to be a treatment of him as a debtor, being offered as proof that the debt was really due; a note, congratulating him on his high state of

25

HEARSAY bodily vigour, being proposed as evidence of his being in good health; both of which are manifestly at first sight objectionable.  *To the latter class3 belong:  the supposed conduct of the family or relations of a testator, taking the same precautions in his absence as if he were a lunatic;  his election, in his absence, to some high and responsible office;  the conduct of a physician who permitted a will to be executed by a sick testator;  the conduct of a deceased captain on a question of seaworthiness, who, after examining every part of the vessel, embarked in it with his family;  all these, when deliberately considered, are, with reference to the matter in issue in each case, mere instances of hearsay evidence, mere statements, not on oath, but implied in or vouched by the actual conduct of persons by whose acts the litigant parties are not to be bound. 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 3

Those cases which are not manifestly objectionable at first sight, but on closer inspection fall foul of the hearsay rule

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HEARSAY reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant IF such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto. 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 selfincriminating  People don’t usually do something against their interests  So our main concern is with the conduct of non-parties

D. “Negative hearsay” (assertions by omission) The position at common law R v Patel [1981] 3 All ER 94 (CA)

Df was charged with assisting someone to enter UK illegally. The prosecution sought to adduce evidence that A was not listed in the Home Office records and that therefore he was an illegal immigrant. The absence of his name was in fact an assertion that he was an illegal immigrant and therefore not admissible.  Facts:  Df was charged with assisting X to enter UK illegally.  PP called immigration officer to give evidence that X’s name was not in the Home Office’s immigration records of legal entrants.  Held: (Bristow J)  CA held that the officer’s evidence and the immigration records were inadmissible. The records could have been admitted if the officer who compiled and had custody of the records testified as to their effect.  “In the judgment of this court, the Home Office records relied on by the prosecution in this case are hearsay, just as were the commercial records in question in Myers v. Director of Public Prosecution, and since they cannot therefore speak for themselves in criminal proceedings, and are not within those classes of documents which, since the Criminal Evidence Act 1965, have been allowed to speak for themselves in criminal proceedings, an officer responsible for their compilation and custody should have been called to give evidence that the

27

HEARSAY method of compilation and custody is such that if Ashraf's name is not there, he must be an illegal entrant.” R v Shone (1983) 76 Cr App Rep 72 (CA)

 Facts:  Df was charged with received stolen car springs.  Stock clerk and manager testified that: (i) that stock records showed receipt of springs; and (ii) there was no indication in the records that the springs had been sold or otherwise disposed of.  Held: (Leonard J) not hearsay  The clerk and manager were entitled to explain the significance of the absence of entries on the cards signifying the absence of entries.  This was direct evidence on the basis of which the jury was entitled to come to the conclusion that the springs were stolen. The position under the Evidence Act  The scope of the hearsay exceptions in the EA extends to positive as opposed to negative assertions.  It is thus arguable that such evidence is not hearsay and is admissible under either s. 9 or s. 11 of the EA  Illustration (b) to s. 11 supports this interpretation (b) The question is whether A committed a crime. 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. Sagurmull v Manraj [1900] 4 CWN ccvii

 Issue was whether X travelled to Calcutta on a business trip. The firm’s account book did not make any mention of any expenses connected with the trip. The book normally included such expenses.  Held:  Book was admitted pursuant to ss. 94 and 115 of the Indian EA to how that the trip was not made.

4 5

Facts necessary to explain or introduce relevant facts When facts not otherwise relevant become relevant

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HEARSAY

VII.

“Loopholes” to the hearsay rule

A. Statements tendered to prove the maker’s state of mind Cases where it has worked R v Ratten [1972] AC 378 (PC) (see above)

Df charged with murdering wife by shooting her. Telephone operator was called as witness to give evidence that the wife called her to ask for the police and that she was hysterical. Held: statement was admissible as original evidence of the V’s state of mind (this was relevant to the defence of accident). Even if it were hearsay, it was admissible under the doctrine of res gestae. Problem: Even if not hearsay, it may not be relevant to the facts in issue R v Kearley (see above)

 The PP tried to argue that they were not relying on any assertion but, rather, wanted to show the state of mind of the callers  The obvious response was why? Why would you want to show the state of mind of the callers? The answer was that the prosecution wanted to show the underlying fact that Kearley was a supplier. R v Blastland [1986] AC 41 (see above)

29

HEARSAY

B. Hearsay and real evidence R v Rice [1963] 1 QB 857 (CCA)

 Facts:  R charged with conspiracy to commit fraud with several persons including M.  PP’s case turned on whether R took a plane from London to Manchester with another conspirator.  PP wanted to adduce evidence that a used ticket found in a repository of used tickets used for that flight showed R’s and M’s names.  Held: Winn J Not hearsay.  The ticket was admissible as circumstantial evidence from which the jury may draw any inference it chose, including the fact that R was on the flight:  “The relevance of that ticket in logic and its legal admissibility as a piece of real evidence both stem from the same root, viz., the balance of probability recognised by common sense and common knowledge that an air ticket which has been used on a flight and which has a name upon it has more likely than not been used by a man of that name or by one of two men whose names are upon it”  Evaluation: JP 86  The difficulty about this interpretation is that it relies on a statement (contained in the ticket) of a relevant fact (whether Rice flew to Manchester on the day in question)  The ticket would only be circumstantial and real evidence if the ticket itself, and not the assertions contained in it, were relevant  For example, if an issue was the age or condition or size or the nature of the ticket, then it would be real evidence which the court could observe and from which it could draw necessary inferences. Interface between hearsay and real evidence in the context of mechanical or technological output A video film or photograph Reg. v. Tolson (1864) 4 F. & F. 103, 104 Willes J.:

"The photograph was admissible because it is only a visible representation of the image or impression made upon the minds of the witnesses by the sight of the person or the object it represents; and, it therefore is, in reality, only another species of the evidence which persons give of identity, when they speak merely from memory."

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HEARSAY  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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HEARSAY

A sketch R v Percy Smith [1976] Crim LR 511

The case concerned attempted murder. The a sketch of the defendant had been made by a police officer in accordance with a description of him provided by a young girl who had seen him at a relevant time near the scene of the crime. An unsuccessful objection was made by counsel for the defence to the admissibility of that sketch. Not hearsay because the sketch is the assertion of the person who saw the accused.  Lawton LJ:  “the argument put forward on behalf of the appellant … was that the document could only have come into existence as a result of the conversation between [the witness] and the police officer making the sketch, and that what [the witness] had said to the police officer and what he had said to her was not admissible evidence because it was hearsay.  That was right.  But the prosecution at the trial never sought to put in evidence what was said by [the witness] to the police officer and vice versa.  It was submitted that what was said was a necessary link between [the witness] and the sketch.  In our judgment it was not. [the witness], using her memory, had directed the sketching hand of the police officer.  The result of exercising her memory in that way was to produce a sketch which was admissible in evidence.  It was her sketch made through the hand of the police officer.  We can see no reason for saying that that sketch was not admissible in evidence”  Evaluation:  There is an element of the sketch artist’s own assertions  However, the cases are clear  The only way to challenge the evidence is to argue that the artist wasn’t qualified or that the sketch was not done properly or attack the witness who provided the description A photofit R v Cook [1987] QB 417

Photofit is not hearsay. The photofit artist is merely doing what the witness could do if he possessed the requisite skill. A photofit is akin to a photograph, albeit that it is imperfect and not made

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HEARSAY contemporaneously with the witness’s perception of the relevant fact or fact in issue.  Facts: Victim of robbery and indecent assault described her assailant to a police officer who put together a photo-fit picture. At trial, Df submitted that a photo-fit picture was hearsay  Held: (Watkins LJ) not hearsay  The rule is said to apply not only to assertions made orally, but to those made in writing or by conduct.  Never, so far as we know, has it been held to apply to this comparatively modern form of evidence, namely, the sketch made by the police officer to accord with the witness's recollection of a suspect's physical characteristics and mode of dress and the even more modern photofit compiled from an identical source.  Both are manifestations of the seeing eye, translations of vision on to paper through the medium of a police officer's skill of drawing or composing which a witness does not possess.  The police officer is merely doing what the witness could do if possessing the requisite skill.  When drawing or composing he is akin to a camera without, of course, being able to match in clarity the photograph of a person or scene which a camera automatically produces  There is no doubt that a photograph taken, for example, of a suspect during the commission of an offence is admissible  We regard the production of the sketch or photofit by a police officer making a graphic representation of a witness's memory as another form of the camera at work, albeit imperfectly and not produced contemporaneously with the material incident but soon or fairly soon afterwards.  As we perceive it the photofit is not a statement in writing made in the absence of a defendant or anything resembling it in the sense that this very old rule against hearsay has ever been expressed to embrace.  It is we think sui generis, that is to say, the only one of its kind. It is a thing apart, the admissibility to evidence of which would not be in breach of the hearsay rule  Both the sketch and photo-fit are manifestations of the seeing eye  The police officer is merely doing what the witness could do if possessing the requisite skill PP v Ang Soon Huat [1991] 1 MLJ 1 (HC)

 Facts: Df charged with trafficking heroin. PP needed to prove that the quantum was more than 15 grams. PP adduced computer printouts of the results of chromatograph and spectrogram tests.

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HEARSAY  Held: (Chan Sek Keong J) Computer printouts of results of the scientific testing was admissible as real evidence.  The court made a distinction between the situation in which the computer printouts are ‘nothing more than a regurgitation of information fed in’ and are tendered without accompanying oral evidence (this would constitute hearsay) and the situation in which the computer not only records but processes and calculates the information fed into it and there is accompanying oral evidence to confirm these matters (here the printouts would constitute real evidence)  Here, not hearsay because it was not a regurgitation of information fed in  The computer processed, calculated information fed into it and the information was explained by an expert.  Evaluation:  Because of amendments to the EA, all computer printouts, regardless of whether they are real evidence or hearsay evidence, will have to comply with the s. 35 requirements

Seminar General Remarks:  There is no right answer  Many items of evidence spread across many categories  Chandrasekera: isn’t there an implied assertion by conduct also?  Doesn’t 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 doesn’t 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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



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courts have completely ignored it and applied the common law  Soon Peck Wah is overruled  Cases like Roy S Selvarajah try to reconcile common law and EA;  But still need to discuss the common law and answer whether the common law still applies in light of Lee Chez Kee (ii) Another problem is the EA v CPC  What happens when CPC is inconsistent with EA  Must leave it to Parliament to legislate and correct  For the purposes of exam: explain the situation in the EA and the sitatuion in the CPC and discuss whether they are reconciliable; if not, explain that Parliamnet should correct inconsistencies (iii) Types of hearsay  Express assertions by statement  Express assertions by conduct  Implied assertions by statement  Implied assertions by conduct  The problem with implied assertions is that they are based on inferences; inferences are based on common knowledge and assumptions; what happens when people don’t act i.a.w. common knowledge? What happens if the Judge doesn’t have in his personal knowledge the experience to deal with the situation. (iv) Real evidence  Photographs, photo-fits treated in the same manner; but is this right? Might want to critique this  S. 35 of the EA: was drafted at a time when computers were not that commonly used; so there are all these pre-conditions that you need to satisfy, which in modern day seems odd. At the moment, we still have to deal with s. 35 (v) Negative hearsay:  Arises where there are omissions in records  There is a school of thought that feels that negative hearsay shuld be treated more leniently because: (i) it is in a record; (ii) harder for someone to prove a negative than a positive  The question than arises as to what happens if your data entry clerks were mistaken → conflicting views on negative hearsay

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 35

HEARSAY evidence of the alleged crime) intends to adduce the evidence specified in paragraphs (a) to (d) below. Consider whether the evidence in these paragraphs are hearsay. [Do not consider the exceptions to the rule against hearsay or the doctrine of res gestae as these topics are to be covered in the context of this question in the 2 nd tutorial (see question 3).] (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”. X’s 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? but should still discuss the common law position. Preliminary issue: Is the fact that Don was carrying a knife relevant? Don denies having stabbed Vic → this means that the actus reus of the offence is at issue. i.e. whether Don stabbed Vic is a fact in issue. 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. Does the statement amount to hearsay? The definition of hearsay: “The assertions of persons made out of court whether orally or in documentary form or in the form of conduct tendered to prove the facts which they refer to (ie facts in issue and relevant facts) are inadmissible unless they fall within the scope of the established exceptions.” Soon Peck Wah v Woon Chye Chye [1998] 1 SLR 234 The only relevant (in the sense of logical relevance) purpose for the prosecution adducing evidence of X’s 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… Shouldn’t mention s. 62 because of Lee Chez Kee In light of Lee Chez Kee, may want to familiarise yourself with the relevancy provisions Brief answer: PW2’s testimony that he saw Y making gestures fitting Don’s description amounts to an implied assertion (by conduct) that Don was the person who stabbed Vic. Hearsay evidence can take the form of conduct observed of another person (Chandrasekera). PW2’s testimony does not amount to an express assertion that Don was the person who stabbed Vic.

(c) SMS messages sent by five of Don’s friends and received on Don’s mobile phone a day before the alleged stabbing. All the messages were substantially the same and can be represented by the following statement: “Don, please don’t hurt Vic. He will pay back what he owes you. We are really worried about you.” Don’s friends are not called as witnesses because they are not identifiable. Ms Khng SMS messages are just regurgitations The problem with R v Kearley’s minority → uncertain; where do we draw the line?

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CPC is exclusionary; EA is inclusionary; in order to reconcile the two, we have to resort to certain artificialities. Doesn’t make sense that CPC has a more generous admissibility framework. 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 (d) A computer-generated picture of Don’s face based on information supplied by Vic to the police. Analogous to a sketch (R v Percy Smith) or a photo-fit (R v Cook): the computer generated picture is a manifestation of the human eye. The computer is merely doing what Vic could do if he possessed the same skill. Ms Khng Criticise R v Cook → many differences between a photograph and a photo-fit Note s. 9: facts necessary to explain or introduce a fact in issue. If Vic is giving evidence, there is no issue. But if Vic is not available, can we admit the CGI photograph without his presence. This is where the hearsay issue comes in. But slightly different from a photo-fit because this is computer generated → less human intervention. Probably requires a technician to input certain parameters and the computer by a series of processes generates a photograph matching the criteria entered.

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HEARSAY Since this is not a “regurgitation of information” but involves a process analogous to calculation, it should not be taken as hearsay. 2. The law of evidence has been unnecessarily complicated by the doctrine of implied assertions. 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. Discuss with reference to the cases considered in the lectures. 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 Khng’s remarks Competing policies:  Probative value v danger of fabrication/unreliability The judge/jury argument in the presenter’s slides:  But this argument applies to hearsay in general:  The problem with that is that one reason why we exclude hearsay is not just about unreliability; its about fairness:  Especially in criminal cases, the Df should be allowed to confront the makers of the statement  People who know that they will never have to be responsible for their statements in court, will find it easier to exaggerate and distort  So this is not just about best evidence and weight

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HEARSAY  A judge even with his best knowledge will never know if someone is concocting or exaggerating evidence.  The judge can never tell whether the maker of the statement has reason to exaggerate  So note that the reasons for excluding hearsay are manifold Note:  Be careful not to talk about discretion → s. 5 states that relevancy is exhaustive so the court shouldn’t have the discretion to exclude evidence that doesn’t 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 doesn’t place too much weight on evidence that carries implied assertions because of the lack of crossexamination  Unnecessary sophistry in the current law → evidence that 40

HEARSAY carries an implied assertion may nevertheless be admitted if it concerns the state of mind of the maker and in circumstances where the state of mind of the maker is relevant  E.g. of R v Ratten → evidence not hearsay insofar as it constitutes evidence of a state of mind but is hearsay and hence admissible only under the doctrine of res gestae insofar as it carries an assertion as to the identity of the caller. Ms Khng’s 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 aren’t  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. 41

HEARSAY The problem is that it gives the judge too much discretion to the judge → if he wants to admit it, he can reason backwards and say that it is circumstantial evidence  There is a school of thought that implied assertions by conduct requires conduct where the maker did not intend to assert anything from his conduct → this type of evidence is the most reliable;  Intended implied assertion (US v Long → one of the principal goals of hearsay is to exclude … when a declarant does not intend to communicate anything  i.e. consider whether we should distinguish between true implied assertions and cases where there is intentional implied assertions  With respect to the point that actions speak louder than words:  E.g. of a Captain bringing his family onboard a ship → implied assertion that the ship is seaworthy: epitome of the maxim that actions speaking louder than words because there are serious consequences  But consider everyday actions such as handshakes → the consequence is not serious 

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