Hearsay essay

Q: what is hearsay?
One of the best definitions of hearsay is the one given by Sir Rupert Cross-‘an assertion
other than one made by a person while giving oral evidence in the proceedings is
inadmissible as evidence of any fact asserted.

There are two main things to consider in deciding whether a statement is caught by the
hearsay rule. Firstly, we must see whether it is an out of court assertion, which may be a
statement or gesture, is being tendered in court either through oral evidence or where the
witness is tendering in evidence a document containing statements made by a person out of
court.

Secondly, we must determine what is the purpose of tendering the out of court statement.
In Subramaniam v pp, LMD Silva said that if the statement is tendered to establish the truth
of its contents, it is hearsay. On the other hand, if it is statement is being established to
tender the fact that the statement was made, then it is not hearsay. This will be original
evidence and in order for it to be tendered in court, it must be in issue or relevant. This was
emphasized in the case of Blastland where the HOL stated that Mark’s state of mind is not
in issue or relevant. Hence, the original evidence is not admissible.

In Subramaniam, where Subramaniam was charged with the possession of ammunition. His
defence was that he had been captured by terrorists and that he had been acting under
duress. The trial judge ruled inadmissible threats alleged to have been made to
Subramaniam by the terrorists saying there were hearsay. The Privy Council said that in this
case threats could have been made to the defendant by the terrorists which, whether true
or not, might have affected his mind causing him to believe that he would suffer instant
death should he disobey their orders. Such evidence would have supported his defense of
duress.

In PP v Ng Lai Huat, the utterances of one of the 5 accused persons to the officer who
negotiated with them and who sought to give evidence of these utterances at the trial as to
the ransom which they all required were held to be hearsay because they were tendered to
prove the truth of those utterances i.e. that ransom had been demanded by all of them.

In Sparks v R, the defendant who was white was charged with indecently assaulting a girl
under four years of age. The mother’s evidence of what her daughter, the complainant, had
said about her assailant, ‘it was a colored boy was ruled inadmissible because it infringed
the hearsay rule since the defendant was relying on the girl’s statement for the truth of
what had been asserted.

The rule against hearsay applies to

i) oral statement tendered for the truth of its content –Subramaniam; PP v Ng Lai
Huat.
ii) Statements in a document tendered for the truth of its contents. In Myers v DPP,
the HOL did not allow the foreman from the manufacturers to tender evidence of
microfilms from cards filled in by workmen to prove that the cylinder block
 numbers of the cars sold by the accused matched the cylinder block number on
stolen cars on the basis that it was tendered for the truth of its contents and was
therefore hearsay and inadmissible. In Patels v Comptroller of Customs, the
court held label on the sacks saying ‘produce of Morocco’ was inadmisble to
prove the country origin.
In Sim tiew Bee, the court held the word ‘to Sim Tiew Bee, Sibu, on the gunny
sack was inadmissible to prove that Sim Tiew Bee was the consignee of the goods
without calling the makers.
iii) assertions by signs and gestures where tendered as evidence of facts asserted. In
Chandrasekara, a murder trial, evidence was admitted under the dying
declaration exception where the victim, who was unable to speak as her throat
had been slit, had made signs indicating that it was the defendant who had cut
her throat.

In Teper, Lord Norman explained the rationale for the rule against hearsay as follows.
1. hearsay is not the best evidence
2. the risk of error and transmission
3. the demeanor of the original source is lost
4. hearsay statements are normally not on oaths
5. the maker of the statement cannot be cross-examined
6. to avoid fraud, concoction or fabrication
7. to save time at the trial and to prevent a multiplicity of issues
8. to avoid surprise and prejudice at the trial
9. the defendant’s right of confrontation

s.60 of the EA 1950 provides that oral evidence must be direct. It reflects the best evidence
rule in respect of oral evidence and relates to the rule against hearsay. This section
emphasizes that evidence should be direct as it is the best evidence. Hearsay under this
section must be rejected. This was reinstated in the case of Recaliva Design v Vista Access
and Tekital v Auto Parking.
Recaliva Design follow Teper.

Q: what is implied assertion?

The proper understanding of assertion or statement is that it is generally an utterance or
conduct, which is made with the object of saying that something is true.
For example, hello John. There is no truth value in its. If a truth value cannot be assigned to
particular utterance, it follows that the utterance cannot be repeated for the purpose of the
truth of its contents because no such truth exists.
However, in Kearley, the HOL said hearsay rule also applied to implied assertion hence for
example Hello John can also be caught by the rule against hearsay. The court held we can
inferred the utterance that John was physically present at the other end of phone. An
implied assertion is not tendered for the express purpose of the statement but for some
underlying assumption on the part of maker of the statement which can be inferred by the
court.

In Kearley, the HOL stated the hearsay rule even applied to implied assertions. However, the
Criminal Justice Act in UK has overruled Kearley position and under the Act is that the
implied assertions will not be caught by the rule against hearsay. In Malaysia, we should not
follow Kearley as it is clear the decisions were wrong and had to be overturned in England
by the Criminal Justice Act.

The hearsay rule does not apply to

i) where the statement is not tendered for the truth of its contents but for the fact
that the statement was made- Subramaniam.
ii) Where the statement was being tendered not to show the truth of its contents
or the facts asserted but to show they were false- R v Mawaz Khan
iii) To tape, films or still photographs that have directly recorded an incident under
investigations as it actually took place. For example, in Dodson, film from a
security camera that had been operating during a robbery was admitted in
evidence.
iv) Documents produced by machines that automatically record some process or
event, such as print out from a computer recording telephone calls made from a
given number- R v Spiby or from a intoximeter recording the level of alcohol in
breath- Castle v Cross.