Hearsay and Exceptions PDF

6 . Hearsay 6.1 Learning Hearsay Hearsay is generally excluded from trial 6.1.1 Why Hearsay is Perceived as a Problem - It is less reliable than first - hand experience - It is not subject to cross - examination ­ If the person who experienced it first - hand is...

6 . Hearsay 6.1 Learning Hearsay Hearsay is generally excluded from trial 6.1.1 Why Hearsay is Perceived as a Problem - It is less reliable than first - hand experience - It is not subject to cross - examination ­ If the person who experienced it first - hand isn’t in court → can’t be cross - exami ned ­ In Common Law, cross - examination is valued - Demeanour evidence is not available ­ Watching their facial expressions and body language is important ­ How we judge is how a person carries themselves ­ With hearsay – we don’t have that human way of communic ating - Distortion possible as information passed from one person to another - It is also not given under oath 6.1.2 Excluded and Included Statements Despite the rules on Hearsay, some statements are still allowed 6.2 Hearsay Definition In OEI Hengky Wiryo v. HKSAR (No 2) [2007] HKLRD 568, McHugh NPJ put it this way: “To determine whether the hearsay rule has been breached it is necessary to determine the purpose for which evidence of an out - of - court statement is tendered . An out - of - court statem ent , made in the absence of a party, is not necessarily inadmissible . As long as its contents are not relied on to prove a fact recited or asserted , it will be admissible if it tends to prove a fact in issue or a fact relevant to a fact in issue…. The hear say rule does not forbid the proof of what somebody said out of Court. What it does forbid is the proof of a fact by telling what somebody said about that fact out of Court, a very different matter . Whether the evidence in any particular instance is admiss ible or not depends upon the question what fact it tends to prove.” 6.2.1 The Heuristic Definition An out - of - court statement offered for the truth of the matter asserted Hearsay [Excluded]Admissions [Allowed]Statutory Exceptions [Allowed]Common Law Exceptions [Allowed]Assertions [Excluded]Asserstions not offered the truth [Allowed]Assertions of direct legal signficance [Allowed]Verbal Acts [Allowed] “An out - of - court” - It does not matter who makes the statement , as long as it is out - of - court . Examples: ­ A dead person (can’t be in court obviously) ­ A person otherwise unavailable (from someone not in court – out of court) ­ But also a testifying witness ­ If Witness says “I saw the event and I said ‘oh wow, look at that red care, it just sped away’.” – that will be hearsay ­ It can be repaired by counsel asking – don’t say what you said at that moment, say what you saw – you are not allowed to say what they said at the time “Statement” - Hearsay statements are not just verbal - Hearsay also includes any “statement” made by someone – in writing, or non - verbally (e.g., by gesture or conduct ) – as long as it was intended as assertion ­ Every document is certainly hearsay (where was it generated? Out of court) ­ Gestures – pointing for example – tr uth of the matter derived from gesture - Statement examples ­ Fred, “Jake said, ‘I saw a lion’.” ­ A company’s ledger indicating its daily sales for the last 10 years ­ A road repairer’s wave signalling that it is your turn to proceed ­ A report from the laboratory saying that someone’s blood alcohol level was over the legal limit - Statements are not made by people and not by animals or things ­ E.g., a letter post marker, phone company records of number dialled, a barking dog etc. “Offered for the truth of the matter asserted” - If there is a statement that is being offered – and that is equivalent o f what is being asserted - If the statement says A but we are using it to prove B – permissible - Examples: ­ If Jake saw a lion – if it is offered to state that matter asserted – Hearsay ­ However, if it is a statement by Jake to prove that he was still alive when he saw the lion – not hearsay ­ We are not offering for the truth of the matter asserted ­ We are offering to show that Jake was alive ­ Jessica got scared because what Jake saw ­ Matter asserted – reason why Jessica was scared ­ Statement – Fred saying “Jake saw a lion” ­ The impact on Jessica was that it made her afraid – it is not offered for the matter asserted. 6.2.2 The Real - Witness Approach Who are the real witnesses to what we want to know? Two parts: 1) What is it – exactly and precisely – that we want to know? 2) What are the real witnesses? Examples: Fred, “Jake said ‘I saw a lion’.” - What do we want to prove? That there is a lion ­ Real witness → Jake ­ Fred is not a real witness – therefore hearsay - Wh at do we want to prove? That Jake was alive when he made that statement ­ Real witness → Fred ­ He is the real witness as to whether Jake was alive at the time – he saw and heard Jake - What do we want to prove? Jessica got scared and grabed a gun ­ Real Witne ss → Person who saw Jessica getting scared – Fred ­ Not Hearsay 6.2.3 Clear Hearsay Cases R v Gibson (1887) Facts - D was charged with malicious wounding. - V gave evidence that after he had been hit by a stone, a woman at the scene pointed to the door of D’s house and said “the man who threw the stone went in there”. Held The woman’s statement was hearsay and should not have been admitted as the court could not assess whether the statement was really made or made in those terms, or assess the reliability of that woman as a witness. Sparks v R (1964) Facts - D, a white man, was convicted of indecent assault of a 3 year old girl - At trial, the girl did not give evidence (on the grounds of youth/competence) - Judge refused to allow D to call the girl’s mother, who claimed that the girl told her that a ‘coloured boy’ ha d done it Held - The purpose of introducing the evidence was to show the truth of the girl’s assertion - The mother’s evidence of what the girl said was therefore inadmissible hearsay. - (The conviction was quashed for other reasons) 6.3 Statements that are Not Hearsay 1. State of mind 2. Verbal acts 3. Not offered for the truth of the matter asserted 6.3.1 State o f Mind Where the issue is only the fact that a statement was made (not its truth), the statement may be relevant in considering the mental state and conduct thereafter of the witness or another. Subramaniam v Public Prosecutor (1956) The hearsay rule is not infringed where D testifies about threats made by terrorists to him, and the purpose of the testimony is not to show the truth of the threats but their impact on D’s state of mind – his duress Kissel v HKSAR [2010] – Court has a discretion to exclude evidence it thinks is too prejudicial The admissibility of hearsay evidence as to the victim’s state of mind is subject to the Court’s discretion; if it is too prejudicial (or advanced as truth) the judge can exclude it. 6.3.2 Verbal Acts - Exampl es, “I bet you ten - thousand dollars”, “I now pronounce you man and wife”, “hello” - These utterances do not describe an event. They are not assertions. They are not true or false. They are actions - In linguistics these utterances are referred to as “perform atives”; at law they are referred to as verbal acts. These utterances do not describe things; they Do things; they are behaviours. Performative Utterances - Verdictives : Acquit; convict - Exercitives : Command; sentence; pray - Commissives : Promise; contract - Behabitives : Apologise; bless; toast - Expositives : I quote; I deny 6. 4 Conduct as Hearsay “ A fact or opinion may be stated expressly or by implication. If a statement is adduced as proof of something that the declarant deliberately chose to communicate by implication rather than direct expression, then it is undoubtedly hearsay .” – Phipson on Evidence Non - Assertive Conduct Assertive Conduct - Murder suspect described as wearing jacket with fur - lined collar - Police asked D at his home if he has a jacket with a fur - lined collar - D then asks wife, “I don’t have one like that, do I dear?” - Wife faints It is NOT assertive, NOT hearsay - Conduct is am biguous - Conduct evidence ALLOWED - Poice goes to D’s home and asks his wife for the shir the was wearing when he arrived home, after the murder - Wife hands police a blood - stained shirt - Wife’s conduct asserts the shirt was the one n question It IS Assertiv e, Hearsay - Conduct is NOT ambiguous - Conduct is EXCLUDED 6.4.1 Implied Assertion Wright v Doe D Tathem (1837) Ratio “Implied assertions” that were hear say are inadmissible Facts - John Marsden died and left his estate to his steward Wright in his will - The heir apparent, Admiral Tathem, contested the will alleging Marsden was not competent to make it - Wright, supporting the will, offered into evidence several letters to Marsden. The ory being that those who knew Marsden and who had written to him approached him as though he was competent. - Case dragged on for 8 years ­ When the letters were admitted, Wright won ­ When the letters were excluded, Tathem won Held By a very slim majority, the House of Lords ruled that the letters carried “implied assertions” that were hearsay and thus inadmissible. Note Why was the case so difficult? Why did it generate so many differing opinions? - No letter said “Marsden is compe tent to make a will” → If that is, that would be hearsay - One of the letters was from Marsden’s cousin who wrote about his voyage to America; What was actually asserted in the letters at issue. - The framing of the issue ends up being dispositive ­ Do the let ters carry an implied assertion? ­ Are the letters offered to prove something other than the matter asserted (the author’s state of mind)? R v Kearl e y [1992] Facts - The same framing issues arise again in R v Kearly - If the court looks for implied assertions: hearsay; - If the court looks for proof of something other than the matters asserted (state of mind/verbal acts): NO hearsay - Police go to defendant’s home and fin d a very small amount of meth. Too small to presume defendant was a dealer. - Suspecting defendant to be a dealer, the police wait around defendant’s house. •Not Hearsay •Where the conduct is ambiguous •Conduct evidence allowedNon-Assertive Conduct•?•Wright v Doe D Tathem (1837) •R v Kearley Implied Assertion•Hearsay •Where the conduct is not ambiguous •Conduct excluded Assertive Conduct - Over the course of a few hours, the police field 10 calls asking for the defendant and if he has drugs to sell; 7 people show up at the house asking for the defendant and whether he has drugs. Issue Were the telephone calls and visits admissible? Held The three judges in the majority, citing Wright v Doe d Tatham, said the calls and visits carried an implied assertion that the defendant was a drug dealer → Inadmissible hearsay The two judges in the minority cited Ratten v the Queen (a strong verbal act case: “Get me the police” and McGregor v Stokes (a betting case; betting is apure verbal act) and concluded that the calls and visits were admissible as facts → Not hearsay – Admissible Note - Kearly was distinguished in HKSAR v Or Suen Hong [1994] At bet ting case in which betting slips held by the defendant were admitted. No implied assertion that bets had been made with the defendant, only that the defendant was holding betting slips. - Oei Hengky Wiryo v HKSAR (No. 2) called into question the legitimacy o f the Kearly decision but left it in place. 6.4.2 Logic of Implied Assertion Framing - Asking whether conduct carries an implied assertion is a question as to why the conduct is relevant - Urgency in finding relevance is strong because, if the conduct is irrelevant, then there is no evidentiary value - Then, having found the relevance, this is presented as an “assertion” – the “implied assertion” - Such an assertion is an out - of - court statement offered for the truth of the matter asserted (its relev ancy) and is therefore hearsay - To look for an implied assertion is an approach biased towards finding the conduct to be hearsay - To counteract the bias, the preference should be towards finding nonverbal conduct to be non - hearsay, unless an intent to assert is readily apparent - Only if the implied assertion is so apparent, the court would admit and the conduct becomes inadmissible hearsay 6.5 Hearsay Incidentals - No residual discretion to admit hearsay exists other than through recognized exceptions - Hearsay rules have limited application outside of criminal trials - Do not apply to: Sentencing proceedings (HKSAR v Ma Suet Chun [2001]); Forfeiture proceedings (Secretary for Justice v Lin Xin Nian [2001); Civil contempt proceedings, even when imprisonment possib le (AquaLeisure Industries v Aqua Splash Ltd (No 2) [2002]) - Beware UK precedents post 2003: The UK substantially liberalized the admission of hearsay in its Criminal Justice Act 2003. 7. Hearsay Exceptions 7.1 Common Law Exceptions 7.1.1 Res Gestae Res Gestae – Words accompany any significant relevant acts R v Bond (1906), Evidence admitted under the res gestae are those showing “acts which are so closely and inextricably mixed up with the history of the guilty act itsel f as to form part of one chain of relevant circumstances”, which “could not be excluded in the presentment of the case before the jury without the evidence being thereby rendered unintelligible.” Policy Justification of Res Gestae (1) Natural Story Telling – A desire to permit each witness to tell his or her story in a natural way. This policy justification has lost most of its strength (2) Spontaneity as Trustworthy – This policy justification now dominates – See R v Andrews 7.1.1(a ) When Res Gestae Applies R v Bedingfield (1879) Facts Woman had her throat slit with a knife and in another room - when she came out, clutching her throat saying "look what Harry has done" - is it admissible? Held it isn't a statement accompanying the act, it is after the act, so if she had said "Look what Harry is doing" - allowable Notes Criticism of R v Bedingfield → Too fine of a distinction . R v Andrews overruled Bedingfield. R v Andrews – Process as to whether Res Gestae applies Ultimate Issue – Can the possibility of concoction or distortion be disregarded? First Step – Whether there is spontaneity? - Is the event so unusual or startling or dramatic as to dominate the thoughts of the victim? Second Step – Are there any special features in the case which relates to the possibility of concoction or distortion? ⭑ R v Andrews (1987) Facts - D (and another person) entered V’s flat and attacked him with a knife - Badly wounded, the victim nevertheless made his way to a neighbour’s flat below. - Minutes later, the police arrived and asked the victim who attacked him. - The victim identified the defendant. Later, the victim died from his wounds. The prosecution sought t o introduce victim’s identification of defendant at trial. Held In admitting the identification as res gestae, the trial court judge ruled as follows: “I am satisfied that soon after receiving very serious stab wounds the deceased went downstairs for help unassisted and received some assistance. He was able to talk for a few minutes before he became unconscious. I am satisfied on the evidence, and not only the primary evidence but the inference of fact to which I am irresistibly driven, that the deceased o nly sustained the injuries a few minutes before the police arrived and subsequently, of course, the ambulance took him to hospital. Even if the period were longer than a few minutes, I am satisfied that there was no possibility in the circumstances of any concoction or fabrication of identification . I think that the injuries which the deceased sustained were of such a nature that it would drive out of his mind any possibility of him being activated by malice and I cannot overlook as far as the identification was concerned, he was right over Mr O'Neill who was a former co - defendant with the accused.” Rule On Appeal - the factors one takes into account in determining whether to admit (1) The primary question which the judge must ask himself is: can the possibility of concoction or distortion be disregarded? (2) To answer that question the judge must first consider the circumstances in which the particular statement was made, in order to satisfy himself that the event was so unusual or startling or dramatic as to dominate the thoughts of the victim, so that his utterance was an instinctive reaction to that event, thus giving no real opportunity for reasoned reflection. In such a situation the judge would be entitled to conclude that the involvement or the pressure of the event would exclude the possibility of concoction or distortion, providing that the statement was made in conditions of approximate but not exact contemporaneity. (3) In order for the statement to be sufficiently 'sponta neous' it must be so closely associated with the event which has excited the statement that it can be fairly stated that the mind of the declarant was still dominated by the event. Thus the judge must be satisfied that the event which provided the trigger mechanism for the statement was still operative. The fact that the statement was made in answer to a question is but one factor to consider under this heading. (4) Quite apart from the time factor, there may be special features in the case, which relate to the possibility of concoction or distortion. In the instant appeal the defence relied on evidence to support the contention that the deceased had a motive of his own to fabricate or concoct, namely a malice … The judge must be satisfied that the circumsta nces were such that, having regard to the special feature of malice, there was no possibility of any concoction or distortion to the advantage of the maker or the disadvantage of the accused. (5) As to the possibility of error in the facts narrated in the statement, if only the ordinary fallibility of human recollection is relied on, this goes to the weight to be attached to and not to the admissibility of the statement and is therefore a matter for the jury. However, here again there may be special feature s that may give rise to the possibility of error. In the instant case there was evidence that the deceased had drunk to excess … Another example would be where the identification was made in circumstances of particular difficulty or where the declarant suf fered from defective eyesight. In such circumstances the trial judge must consider whether he can exclude the possibility of error. 7.1.1(b) Four Res Gestae Categories Note: Hong Kong does not officially have these four res gestae categories – make sure that you refer to the categories secondary to R v Andrews (1) Excited Utterances Allows witnesses to testify to what a declarant said when the declarant was under the stress of excitement and the statement relates to the event or condition that caused the excitement ­ Stress can go on for an extended period of time ­ The statement need not describe the event, it need only relate to the event Often used for emergency calls to police Morgan v DPP (2016) Facts a 999 call was made by the complainant after a delay of about one hour. When the police arrived soon after, the complainant’s demeanour and injuries and damage at the scene were recorded on an officer’s bodycam. Held The court affirmed that ‘the primary question in a res gestae case, identified by Lord Ackner in R v Andrews, is whether the possibility of concoction can be disregarded …’ Accordingly, the district judge had been entitled to reach the conclusion that whe n the complainant made the 999 call and also when the police arrived, her mind was still dominated by events and the possibility of concoction could be ruled out. Spontaneous elements that are alleged to make the statements reliable: When speakers are st ressed or excited or otherwise cognitively burdened, it is more difficult for them to lie (2) Present Sense Impression Statements that describe or explain an event while (or immediately after) the event occurred. R v Nye (1977) Ratio The core question for Lawton LJ was whether there was no “opportunity for concoction”, nor “a chance of an error being made” Facts - A case of ‘road rage’ assault following a collision between two cars. Loan, the passenger from one of the cars, assaulted Lucas, the driver of the other, by punching him in the face. Shaken, Lucas sat in his car waiting for the effect of the assault to wear off. The police arrived shortly afterwards and Lucas made a statement in the police station only a few yards away in which he identified Loan, as opposed to the driver of the other car, as his assailant. Held The court was satisfied that there had been no opportunity for concoction and no chance of error and held that Lucas’ statement had been properly admitted under the res gestae principle as a spontaneous identification. (3) Present Bodily Condition Statement of the declarant’s present bodily con dition and symptoms, including pain and other feelings Spontaneous elements that are alleged to make the statements reliable: ­ Emphasis is on spontaneous ­ Almost certainly not always effective – e.g., “Mom, I feel sick. Can I not go to school today.” ­ But probably many such statements are spontaneous enough to justify exception (4) Present Mental State A statement of the declarant’s then - existing state of mind (such as motive, intent, or plan … ) This exception allows for assertive statements about state of mind. Note – don’t confuse with non - hearsay uses of statement ­ Example: Fred, “Jake said, ‘I saw a lion.’” → Used to prove why Jessica got scared and grabbed a gun → Not hearsay, not assertive of Jessica’s state of mind ­ Example: Jessica says “I am scared” → She is asserting her state of mind → Allowed Weighing the possibility of concoction or distortion (from high reliability to low reliability) - R v Andrews and its progeny give some guidance on how to actually weigh the possibility of concoction or distortion - Additional help can be found by looking again at the four categories of res gestae 7.1.2 Statements Made by Persons Now Deceased 7.1.2(a) Dying Declarations A dying declaration is admi ssible only if at the time it was made, the declarant was under a settled and hopeless expectation of death. Historically it was “presumed that no person who is immediately going into the presence of his Maker, will [sic] do so with a lie on his lips” – R v Osman (1881) (1) Must be made under a settled and hopeless expectation of death Evidence that the declarant had a settled hopeless expectation may come from a statement from the deceased themselves but it may also come from elsewhere ­ E.g., by the apparent fatal quality of a wound, by statements made to the declarant by a doctor, or by others that their condition is hopeless. Requirement that the settled expectation of death be concurrent with the making of the statement! ­ It is not eno ugh that declarant made the statement THEN develops a settled expectation of death ­ R v W oodcock (1789) , “ The principle on which this species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world has gone; when every motive of falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn and so awful is considered by law as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice. ” (2) Expectation must be imminent (but not necessarily immediate) (3) Only applies in murder and manslaughter cases Jennings v United States Government (1982) – The House of Lords held that the offence of ‘causing death by reckless driving’ was a species of manslaughter under English law (4) Only admissible to prove the cause of the declarant’s death The defendant in the present trial must be charged with causing the death of the declarant Westberry v State (1932) (US Case) Facts An intruder shot a man and his wife at the same time, D was put on trial for the murder of the husband only. Held The dying declaration of the wife identifying the defendant as the assailant was excluded (inadmissible) under this doctrine Excited UtterancePresent Sense Impression Present Bodily Condition Present Mental State 7.1.2(b) Declarations against Interest A statement made by a deceased person against his or her proprietary or pecuniary interests. Its tr ustworthiness comes from the assumption that people do not lightly make statements against their interest Four conditions: 1. The decease must have personal knowledge of the facts stated 2. Interest impacted must be proprietary or pecuniary 3. Concerns a present a nd not future interest 4. Declarant must know the statement is against his or her interest R v Rogers (1995) Facts - Co - defendant "I am being chased for money" - made in connection with drug case - Defence was that drugs were owned by Co - D who would soon die - not by D - Deceased's statement was the value of the drugs that he hasn't paid Held Not admissible - Doesn't acknowledge proprietary or pecuniary interest, just that he is being chased for $ - If he had said something like he was the true owner of the drugs - might be admissible Textbook Notes - If an individual makes a declaration against h is pecuniary or proprietary interest and dies after making the declaration, the declaration is admissible in evidence at a trial held after the death of the maker of the declaration, provided that it is relevant to a fact at issue in the trial. - The declara tion is admissible as evidence of the truth of its contents. - The rule does not apply to admissions as to criminal liability. - An individual charged with a criminal offence cannot produce as part of his defence a confession to that crime made by a deceased p erson. - There is much evidence which could be potentially admitted in this way in a criminal trial. - However, the most common example might be in traffic accident cases, an acknowledgment of legal liability. - The limitation on this rule means that a confession to a crime made by a deceased person cannot be used as evidence in a criminal trial. 7.1.2(c) Declarations Made Pursuant to Duty If a person in the regular course of her duties makes a contemporaneous record (which she has little interest in mak ing falsely) of some business matter which was her duty to transact, and she subsequently dies, the record is admissible The likely trustworthiness of the record is found in the routine of keeping it and the need for accuracy Conditions: 1. The statement was made under a duty to report and the report concerned an aspect of the deceased person’s duty 2. The report discusses matters within the deceased’s personal knowledge 3. The report must be contemporaneous or almost contemporaneous with the act of occurrence for which the report was made 7.1.3 Co - Conspirator Statements Where two or more persons conspire together to commit any offence, everything said or done or written by any one of them in the execution or furtherance of their common purpose is: - deemed to be said , done, or written by every one of them, and - deemed to be a relevant fact as against each of them The rationale for the exception is not trustworthiness but rather the agency relationship between the conspirators Two conditions for admission: 1) Is there inde pendent and reasonable evidence of the conspiracy, if so then 2) Was the statement made in the furtherance of the common purpose ⭑ HKSAR v Booth (1998) (1) The judge must consider whether the other evidence amounts to reasonable or prima facie evidence that there was a conspiracy or joint enterprise and that the defendant was a party to it; (2) if there is no such prima facie evidence, the statement is inadmissible and, obviously, the case must be withdrawn from the jury; (3) if the judge is satisfied that there is such prima facie evidence, the statement is admissible and should be left to the jury with a direction that they should convict if, in the l ight of all the evidence, they are sure that the defendant was a party to a conspiracy or joint enterprise; (4) but, if the statement could be regarded by the jury as the primary evidence implicating the defendant, the judge should point out to the jury t hat it was made in defendant’s absence, that the defendant had no opportunity to cross - examine the maker and that they should not convict defendant on the basis of that evidence alone. Summary: (1) The judge must determine if there is reasonable or pri ma facie evidence of a conspiracy or joint enterprise in addition to the statement, and if the defendant was involved in it. (2) If there is no such evidence, the statement cannot be used as evidence and the case must be dismissed. (3) If there is prima facie evidence, the statement can be used as evidence and the jury can convict if they are sure the defendant was involved in the conspiracy or joint enterprise. (4) If the statement is the primary evidence against the defendant, the judge must inform the jury that it was made in the defendant's absence and without the opportunity to cross - examine the maker, and that they should not convict based solely on that evidence. Use by Defence: HKSAR v Au Yuen Mei (No 2) [2004] Facts - Husband and wife c harged with trafficking in a dangerous drug. Tried together. - At time of arrest, husband stated to police that he had forced wife to carry the drugs. - At trial, wife attempts to introduce this statement on cross - examination of the police. - Prosecution objects to the statement as hearsay. Held Objection overruled. While the statement is hearsay, it is still admissible under the common law exception for admissions and confessions 7.1.4 Evidence in Former Proceedings Evidence given in previous proceedings and relevant to a fact in issue in the present proceedings may be admissible subject to four conditions: 1. The earlier evidence / statement must have been duly sworn 2. The witness must have been available for cross - examination in the earlier proceedings (even if the opportunity for cross - examina tion was not taken) 3. Issues must be substantially the same in both proceedings 4. A witness whose evidence is now being tendered must be incapable of being called in the present proceedings. Incapable of being called can mean: dead, insane, too ill, or preve nted from attending by opposing party R v Thomas (1982) Facts Prosecution witness gave evidence in first trial. A re - trial was subsequently ordered, by which time the witness was unfit to give evidence. Held A transcript of the witness’s evidence was held admissible at the re - trial. 7.1.5 Public Documents Exceptio n Section 18: a copy of document of public nature is an admissible hearsay evidence in criminal proceedings: Evidence Ordinance 18 Whenever any book or other document is of such a public nature as to be admissible in evidence on its mere production from the proper custody, and no enactment exists which renders its contents provable by means of a copy, any copy thereof or extract therefrom shall be admissible in evidence in the court, provided it is proved to be an examined copy or extract or provided it purports to be signed and certified as a true copy or extract by the officer to whose custody the original is entrusted, and which officer is hereby required to furnish such certified copy or extract to any person applying at a reasonable ti me for the same, on payment of a reasonable sum for the same, not exceeding 50 cents for every folio of 72 words . Sturla v Freccia (1880), a public document is defined as “ a document that is made for the purpose of the public making use of it – especiall y where there is a judicial or quasi - judicial duty to inquire. Its very object must be that the public, all persons concerned in it, may have access to it.” Myers v DPP [1965]: Public documents can be admitted into evidence provided four conditions are met: 1. The document must be brought into existence and preserved for the purpose of being kept public as a register for future reference 2. The document must have been opened to the public inspection, although ”the public” does not necessarily me an the whole world 3. The information in the document originated from a person with a duty to provide accurate information 4. The authenticity of the document must be shown Personal knowledge or inquiry into the accuracy of the facts by the official making the r ecord is no longer strictly required - R v Halpin (1975) , documents at issue were prepared for and filed with the Companies Registry - The key is the record was prepared and filed under a duty to do so. R. v Alan Peter Gordon McGuire [1985] Facts - Arson case - A Senior Scientific Officer is a government official charged with investigating fires to see what can be learned. The Officer’s reports are public information to help in understanding fire behaviour, better fire suppression techniques, etc. - The Office r responded to the fire in question immediately after it was extinguished. - The Officer reported on the state of the building, the damage, the charring and so on. - The Officer was not available at the time of the trial and the prosecution sought to introduce the Officer’s report. - The defence objected to its introduction as hearsay evidence. Held Although hearsay, the report comes in under the public documents exception. 7.2 Statutory Hearsay Exception – S22 EO Section 22 Main Conditions: - Documentary statement admissible if oral equivalent would be admissible - Document is or forms part of a ‘record’ compiled by a person ‘acting under a duty’, where the information is supplied by a person who had personal knowledge of the information - The pers on who supplied the information is unavailable, e.g. dead, outside Hong Kong, cannot be identified, etc (s.22(1)(c)) - Statements made in connection with criminal proceedings are not admissible (s.22(2)) ­ But note: s. 22(2) exclusion is not absolute. A prior transcript in a criminal proceeding is still admissible. HKSAR v Lee Chi Hung [2000] HKLRD (Yrbk) 176 HKSAR v Lee Chi Hung [2000] Ratio s. 22(2) exclusion is not absolute Facts In a retrial, the defence wished to call Madam Chan to repeat under oath testimony she gave at the first trial regarding police conduct during the defendant’s arrest. However, the defence was unable to find Madam Chan and so applied under s. 22 (1) of the Evidence Ordinance (Cap. 8 ) to admit a transcript of Madam Chan's e vidence from the first trial. Section 22(1) conditions met Issue whether s.22(2) prevented the admission of a transcript of evidence under s.22. Section 22(2) provides, "A statement made in connection with any criminal proceedings or with any investigatio n relating or leading to any criminal proceedings shall not be admissible under this section.” Held Criminal proceeding transcript admitted. Section 22(1) conditions met and little to no risk that defendant in the course of preparing for the current proce edings fashioned the prior evidence. Evidence Ordinance 22 (1) Subject to this section and section 22B, a statement contained in a document shall be admitted in any criminal proceedings as prima facie evidence of any fact stated therein if — (a) direct oral evidence of that fact would be admissible in those proceedings; and (b) the document is or forms part of a record compiled by a person acting under a duty from information supplied by a person (whether acting under a duty or not) who had, or ma y reasonably be supposed to have had, personal knowledge of the matters dealt with in that information; and (c) the person who supplied the information — (i) is dead or by reason of his bodily or mental condition unfit to attend as a witness; (ii) is outsid e Hong Kong and it is not reasonably practicable to secure his attendance; (iii) cannot be identified and all reasonable steps have been taken to identify him; (iv) his identity being known, cannot be found and all reasonable steps have been taken to find him; (v) cannot reasonably be expected (having regard to the time which has elapsed since he supplied or acquired the information and to all the circumstances) to have any recollection of the matters dealt with in that information; or (vi) having regard to all the circumstances of the case, cannot be called as a witness without his being so called being likely to cause undue delay or expense. (2) A statement made in connexion with any criminal proceedings or with any investigation relating or leadi ng to any criminal proceedings shall not be admissible under this section. (3) Subsection (1) applies whether the information was supplied directly or indirectly but, if it was supplied indirectly, only if each person through whom it was supplied was actin g under a duty; and that subsection applies also where the person who compiled the record also supplied the information. (4) Where in any criminal proceedings a statement based on information supplied by any person is given in evidence by virtue of this se ction — (a) any evidence which, if that person had been called as a witness, would have been admissible as relevant to his credibility as a witness shall be admissible for that purpose in those proceedings; and (b) evidence tending to prove that that person has, whether before or after supplying the information, made a statement (whether oral or otherwise) which is inconsistent with that information shall be admissible for the purpose of showing that he has contradicted himself: Provided that nothing in thi s subsection shall enable evidence to be given of any matter of which, if the person in question had been called as a witness and had denied that matter in cross - examination, evidence could not have been adduced by the cross - examining party. (5) A statemen t which is admissible by virtue of this section shall not be capable of corroborating evidence given by the person who supplied the information on which the statement is based. (6) In deciding for the purposes of subsection (1)(c)(i) whether a person is un fit to attend as a witness the court may act on a certificate purporting to be signed by a medical practitioner registered or deemed to be registered under the Medical Registration Ordinance (Cap. 161). (7) Any reference in this section to a person acting under a duty includes a reference to a person acting in the course of any occupation in which he is engaged or employed or for the purposes of any paid or unpaid office held by him. (8) This section does not apply to any document to which section 22A appli es. - Section 22( 1 ) : A statement in a document can be used as evidence in criminal proceedings if the person who supplied the information is unavailable or cannot be identified, and if the document is part of a record compiled by someone acting under a duty from the supplied information. - Section 22( 2 ) : Statements made in criminal proceedings or related investigations are not admissible. - Section 22( 3 ) : The statement is admissible if the information was supplied indirectly but each person in the chain was acting under a duty. - Section 22( 4 ) : Evidence can be presented to challenge the credibility of the person who supplied the information or to show that they contradicted themselves. - Section 22( 5 ) : The statement cannot be used to corroborate the evidence of the person who supp lied the information. - Section 22( 6 ) : A medical practitioner's certificate can be used to determine if someone is unfit to attend as a witness. - Section 22( 7 ) : The section includes anyone acting in an occupation or office. - Section 22(8) : The section does not apply to documents covered by section 22A. 7.3 Critique of Hearsay Exception Accuracy and or Truthfulness Test for Evaluating/Challenging Testimony Oath Demeanour Impeachment Cross - Examination Sincerity X X X X Perception X Ambiguity X Memory X Great emphasis on spontaneity but not accuracy - Evidence has shown that we are greatly influenced by nonverbal communications - There is no ability to cross - examine those issues - Ambiguity can't be challenged or how good their memory is - Everything is placed on sincerity and truthfulness 7.4 Hearsay in Civil Cases Historically, the hearsay rule s applied as much in civil as in criminal cases - E.g., Adelaide Chemical & Fertilizer Co Ltd v. Carlyle (1940) CLR 514; O’Hara v. Central SMT Co Ltd 1941 SC 363 In the 1960s, the law was reformed so as to permit hearsay to be introduced in evidence in civil cases, subject to certain conditions, e.g. notice to the other side: - See Evidence Amendment Ordinance of 1969 (based on UK Civil Evidence Act 1968) - Afterwards, hearsay was routinely relied on in civil cases, even in breach of the legislative rules if the Judge accepted it was relevant Following a 1996 report of the HK Law Reform Commission, the law was amended again and is now contained in the Evidence Ordinance, part IV In summary, hearsay (of whatever degree) is admissible (if relevant evidence) in all c ivil proceedings subject to a judicial discretion to exclude it. The fact that the evidence is hearsay is normally only relevant to its weight Section 47 of the Evidence Ordinance contains the general rule: - All hearsay admissible unless a party objects and the Judge considers that its exclusion is not prejudicial to the interests of justice - Strong preference - but doesn't mean and attempt is not possible