Hearsay is information gathered by one person from another person
concerning some event, condition, or thing of which the first person
had no direct experience. When submitted as evidence, such statements
are called hearsay evidence. Hearsay evidence is generally not accepted in court. The general rule is that all relevant evidence are prima facie admissible, except for hearsay and opinion.
In Subramaniam v PP, LMD Silva said:
"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. 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 mde, quite apart from the 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."
There are two main things to consider in deciding whether a statement in an examination question is caught by the hearsay rule.
First, see if an out of court assertion, which may be a statement or a gesture, is being tendered in court either through oral evidence or where the witness is tendering a document containing statements made by a person out of court.
Second, determine the purpose for which the out of court assertion in the question is being tendered or repeated in court. If the statement is tendered to establish the truth of its contents, it is hearsay. If the statement is being tendered to establish some other fact, it is not hearsay. (Subramaniam v PP)
In PP v Ng Lai Huat, the utterance of one of the five accused persons to the police officer who negotiated with them and who sought to give evidence of these utterances at the trial as to the ransom which they required were held to be hearsay because they were tendered to prove the truth of those utterances i.e. that a 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 old. The mother's evidence of what her daughter (the complainant) had said about her assailant, "it was a coloured 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.
Rationale for the hearsay rule
- hearsay is not the best evidence
- the risk of errors in transmission (misreporting and inaccuracy through repetition)
- the demeanour of the original source is lost
- hearsay statements are normally not on oath
- the maker of the statement cannot be cross-examined
- to avoid fraud, concoction or fabrication
- to save time at the trial and prevent multiplicity of issues
- to avoid surprise and prejudice
- the defendant's right of confrontation
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However, there are few exceptions on Hearsay Evidence.
ReplyDeleteSection 32(1) (a) Evidence Act 1950 : Dying Declaration
Section 32 (1)(b) Evidence Act 1950 : Statement made in the course of business.
Section 32 (1) (h) Feelings or impression
Section 33 Evidence Act : Evidence given by a witness in a judicial proceeding may be used in a subsequent judicial proceeding subject to certain conditions being fulfilled.
* Kindly take note that the prerequisites contained in these sections must be strictly complied with before the evidence can be received
Hi. Can you explain more on the exception of section 33? Thank you
DeleteThe purpose to exclude hearsay evidence is as mentioned is because there is an inherent risk of mistake and thus not reliable
DeleteNow when you have a situation such as s 33 whereby witness A has already given his testimony in Court Case 1, B may make mention of what A said in Court Case 1 in B's case. As there is no risk of mistake as to what A said in court (as everything is recorded) thus fall under the exception to hearsay
Hope this clear some things
Thank you Sing Ghee =)
ReplyDeleteHow to identified whether it is a hearsay evidence?
ReplyDeleteDear Su Hui,
ReplyDeleteI will explain hearsay evidence base on the following example.
Jeremy saw Isaac killed his girlfriend by knocking her with a car.
* This evidence is admissible because Jeremy saw the incident directly.
Jeremy heard from Tajul that Isaac killed his girlfriend by knocking her with a car.
*The evidence that gathered from Jeremy in this situation will be consider as Hearsay evidence because Jeremy did not directly get this information.
In short, hearsay evidence can be identified when is it not through direct experience. Hopefully I can clear your doubts.
would it still be a hearsay even if tajul was brought into court as a witness?
DeleteTajul would be called by the prosecution to testify as prosecution witness and would not be caught under hearsay.
DeleteHowever, now what Jeremy says would not be tendered for the truth of the matter stated but to prove for the fact that the statement was made to Jeremy by Tajul and would corroborate Tajul's testimony. As it is not tendered for the truth of the matter stated as per Subramaniam v PP - it would not be hearsay
Would a statement of motive to rob a bank, said by A to B, be considered as evidence if the circumstances is such that the bank was rob hours later after A's mention?
ReplyDeleteAnd would it be usable in proceedings?
Firstly Julian, the evidence of B could be adduced in court as hearsay only apply when a statement was made to a person as a witness in court, but the maker of the statement himself did not present in court as a witness. however, based on your circumstances, A himself would be subject to cross-examine in court so the evidence of B is not hearsay.
ReplyDeletebesides that, the statement could also adduced in court as relevant fact under section 8 of Evidence Act 1950, due to it shows the motive of A.
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ReplyDeleteHearsay Evidence is divided to three types,
ReplyDeletea) expression
b) Documentary
c) Behaviour..
can you explain more about Hearsay Evidence through Behaviour?
What if the maker of the expert evidence(documentary) is unavailable and the counsel seeks to tender it through another witness?
ReplyDeletewhat is general rules regarding the admissibility of hearsay evidence
ReplyDelete