Hearsay
1 . C H E A T S H E E T
• Does the evidence go towards showing the existence of any fact in dispute or relevant fact? o Starting point is that the issue at trial must be identified
o If the evidence is irrelevant to the issue at trial, then it is strictly speaking inadmissible à no need to even consider the hearsay rule
o Conversely, if its relevant (see s 5 to 11), its presumptively admissible
• Was the statement made out of court? If so, is the maker of the statement called as a witness? o If the statement wasn’t made out of court or if the maker of the statement is called as a
witness à hearsay rule does not apply • What is the purpose of tendering the statement
o Statement is not hearsay if:
§ The making of the statement itself is the fact in issue (Choo Pit Hong); § The statement is indicative of a fact in issue (Woodhouse);
§ The statement is of legal significance by virtue of the rules of law, such that the statement is tendered to show the constitution of legal acts, irrespective of the truth or contents of the statement (Keimfarben);
§ Statement can be admitted as direct and primary evidence of the state of mind of the maker or recipient of the statement to show the state of mind or of body or bodily feeling when such existence is in issue or relevant (PP v Subramaniam,
Ratten)
o Statement is hearsay if it is used to prove the TRUTH of the facts of the statement. If it is hearsay is it:
§ An express assertion by statement (R v Gibson); § An express assertion by conduct (Chandrasekera); § An implied assertion (Teper v R); or
§ A negative assertion (R v Patel);
§ An implied assertion by conduct? à This is a dodge one because s 32A of the EA only covers verbal statements since it only includes “protest, greeting, and verbal utterance”, which evinces clear statutory intent to exclude conduct
• If it is hearsay, does it fall under the exceptions to the hearsay rule? o Does anything from s 17 – 40 apply?
o Does res gestae apply?
o Can we argue that the statement is circumstantial evidence? (Ratten, Kearley) o Can we argue that the statement is real evidence?
§ COUNTER: these ways of evading the HSR should recede in importance now that the amended EA has a more lenient scheme for HSE
2 . R A T I O N A L E
• Fundamental rule of evidence that the evidence that’s adduced to prove a fact must be reliable o Locus classicus is testamentary evidence - witness testifies as to what he himself directly
perceives, rather than what other persons have perceived and recounted to him
§ Per Lord Normand in R v Teper, HSE “is not delivered on oath… cannot be tested by cross-examination, and the light which his demeanour would throw on his testimony is lost”
o As such, the rule against hearsay avoids the introduction of unreliable out-of-court assertions and ensures that only the ‘best evidence’ is put before the court
§ Why? Because the truthfulness and accuracy of out of court statements cannot be tested by xx
§ Additionally, the light which the speaker’s demeanour would throw on his testimony is also lost
• Effect of the hearsay rule - hearsay evidence is only admitted pursuant to one of the variety of statutory exceptions which require specific conditions relating to:-
o The nature of the statement - because of a particular situation, the statement has an element of reliability;
o The reason for the absence of the maker - therefore this is the best available evidence; § There are ancillary requirements regarding proof (the form in which the statement is
presented), or reliability (there are opportunities for the other party to challenge the veracity of the statement/the maker).
• Rationale for Hearsay Rule
o Axiomatic that a court should have access to the best available sources of evidence. Via the forensic tools available in a common law trial for assessing the credibility of a witness – the oath, the demeanour of the witness, xx of the witness, and external evidence relevant to the witness’ credibility – the court can estimate how much reliance to place on a witness’ testimony.
o However, the court and the witness cannot verify the truth of the facts in another person’s out of court statement
§ Witness not legally obliged to account for someone else's testimony under oath → lacks a vital safeguard
§ Deprives the opposing party of the right to confront or challenge a witness who gives evidence against them during xx. This in turn compromises the truth-seeking process, because xx is an important means of challenging the probative value of a testimony, and has an additional process value of reinforcing the legitimacy of the adjudication in the eyes of the parties and the public.
• Furthermore, per the Ned Stark argument, a face-to-face confrontation with one’s accusers is part of what society owes its citizens as rational creatures with the capacity to give and receive justice, before it can legitimately convict them of a criminal offence and impose just punishment
o Furthermore, two main ways it could go wrong: -
§ No way to ascertain whether the statement made is a fabrication, a mistake, an exaggeration since the speaker is not testifying, the court doesn’t get the chance to
§ Error in transmission from the witness to the speaker.
o Therefore compromises the court’s ability to assess the value of the evidence
A . Basis of Hearsay Rule In The EA
• Past consensus was that the common law exclusionary rule either applies independently or through s 62
o S 62 requires that oral evidence be direct → witness can only testify what he has perceived himself
o However, s 62 clearly doesn’t encapsulate the entirety of the hearsay rule and it is a facet of the HSR at best.
§ It doesn’t distinguish between assertions that are tendered as evidence of the facts referred to (hearsay), and assertions which are relevant by virtue of having been made (not hearsay);
§ S 62 is also in the proof section and not in the admissibility section;
§ Finally, s 62 only concerns oral evidence, and doesn’t affect assertions made in documents or made via conduct
• This was criticised by Rajah JA in Lee Chez Kee, who stressed that to argue that the exclusionary HSR existed “within or independently” of the EA “[implies] the existence of something… beyond the intention of [Stephen]” (at [66])
o Particularly, importing HSR into SG via s 62 “[confuses] a mode of proof with the type of proof” (at [73])
o However, Rajah JA himself fails to provide an alternative solution for reconciling EA with the exclusionary hearsay rule as understood in common law, and the 2012 amendments also fail to define either the term “hearsay” or the phrase “statements of relevant fact” in s 32, which is generally considered an exception to the hearsay rule.
• However, no one’s really going to argue that there therefore isn’t a HSR in SG à Prof Chin Tet Yung in his 2014 article suggests that hearsay issues should be analysed in two steps – (1) Is the evidence hearsay evidence at common law, and (2) If so, does it fall under one of the exceptions under the EA
v
Case Law
Lee Chez Kee v PP [2008] SGCA 20
Facts
• A and 2 accomplices robbed V at his house. At V’s house, he punched and stabbed V. o A claimed that he thought V was still alive when he left the house
o Crucially, post-mortem examination revealed that the cause of V’s death was strangulation by electric cord
• Accomplices were both unavailable to testify at A’s trial, and P sought to rely on statements made by one of the accomplices at the time of his arrest
/held/
• HSE is defined at common law as referring to “statements made out of court adduced to prove the facts contained therein” (at [64])
• However, it is not accurate to define the HSR as an exclusionary rule in the EA given that our EA was intended to be inclusionary (at [66]).
EA “[implies] the existence of something… beyond the intention of [Stephen]” (at [66])
• The TYL/HHL argument is that the EA may not explicitly define hearsay, but it contains an implicit acknowledgement of the HSR, because HSE is perceived as being a statement of relevant facts, and is as such an irrelevant fact, as opposed to a statement, which is itself, declared by the EA as being a relevant fact. This is evinced by an absence of any general provisions making statements of relevant facts themselves relevant facts.
• Consequently, where exceptions to hearsay are intended to be relevant, the HSE is admissible specifically as a relevant fact; The EA therefore gives effect to the common law exceptions to the hearsay rule.
B. Definition of Hearsay
• Per PP v Subramaniam: “Evidence of a statement made to a witness by a person who is not himself called as a witness is hearsay and is inadmissible when the OBJECT of the evidence is to establish the TRUTH of what is contained in the statement”
o Not hearsay when the evidence is proposed to establish not the truth of the statement, but the fact that it was made
• Per Lee Chez Kee: The assertions of a person 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 are inadmissible, unless they fall within the scope of the established exceptions
• There is no definition of hearsay in the EA, which only determines when a statement made out of court is relevant or irrelevant
v
Statements as Facts in Issue – making the statement is an element of the charge
• Out of court statements that are simultaneously facts in issue can be tendered as evidence to show their occurrence, but not as evidence of the facts they refer to
o E.g. criminal or tortious actions such as defamation, criminal libel, extortion, sedition, conspiracy or breach of restraint of trade (?), where the words were uttered themselves may constitute the criminal or tortious act
§ I.e. I will admit this evidence for proof that you said bad shit about LKY, and not proof that LKY fucked Margaret Thatcher (which goes to the contents of the statement)
§ Per PP v Subramaniam – evidence of threats was adduced to prove that threats were made, but not that the threats were true
Choo Pit Hong Peter v PP [1995] 1 SLR(R) 834 (SGHC Yong CJ) – Statement constitutes Fact In Issue; Not Hearsay
Facts
• A was a remisier charged with intentionally giving false evidence to officers from the Commercial Affairs Department while being bound by s 193 of the Penal Code to state the truth
o A allegedly told them that he had met and verified the particulars of 29 of his alleged clients when he had not
o At trial, A alleged that the statements he had given the CAD officers were made as a result of threats & inducements
/held/
• A’s statements to the CAD did not infringe the hearsay rule as they constituted the crime which he had been charged
• Regardless of whether the statements were confessions, the statements are not evidence to prove the two charges of giving false evidence
• Any challenge to the admissibility of the statements was misconceived – even if they were made as a result of ITPs, making the statement constituted the fact in issue (admissible under s 5)
v
Statement indicative of a fact in issue – making the statement is a relevant fact
• Statements may be tendered if their making, rather than the facts that they contain, is indicative of the facts in issue – i.e. Irrespective of whether its true, the fact that it was made is a relevant fact
Woodhouse v Hall (1980) 72 Cr App Rep 39 (CA) – Statement Indicative of Facts in Issue; Not Hearsay
Facts
• An officer went undercover to a brothel which was disguised as a massage parlour • Tendered evidence that while he was on the premises, several ladies made offers of
sexual services, which the trial judge held was inadmissible as HSE /held/
• Donaldson LJ held that the evidence was wrongly excluded as hearsay
o The mere fact that evidence of a witness includes evidence as to words spoken by another party who has not been called as a witness is in itself no objection to admissibility, as words spoken are just facts, as much as any other action by a human being.
o Question of hearsay only arises when the words spoken are relied on
testimonially, in this case, we only rely on the fact that they were spoken
o In this case, the relevant issue is whether the ladies made these offers, so the fact that the words were spoken was relevant to this fact in issue
• Evaluation
o If you contrast this case to Peter Choo, the evidence isn’t the very making of
the statement, they are only relevant because they impliedly assert that the police can obtain sexual services from women on the premises
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Legally Operative Words
• The existence of a statement may have legal significance, such that the purpose of adducing such statements would be to show the constitution of the legal acts, irrespective of any underlying subjective intention
o E.g. An email concluding a contract or a trust is admissible, because on an objective viewpoint, we assess whether a offer/acceptance exists because its an objective reasonable man test. It doesn’t really matter whether it’s true because that’s not what we’re relying on
Keimfarben GmbH & Co KG v Soo Nam Yuen – Legally Operative Words; Not Hearsay
Facts
o To prove the value of the paints, Df adduced evidence of a letter from a 3P coy offering to buy the paint and fixing the maximum unit prices that they were agreeable to
/held/
• This evidence is inadmissible hearsay – Df was relying on the letter to establish the truth of its contents, the market value of the paints
• However, the maker of the offer was not present in court to confirm that on this date, he genuinely was willing and able to purchase paints at that price
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Statements that reveal state of mind or physical state
• It is not hearsay when the statement is relied on as direct and primary evidence of the state of mind of the maker or the recipient of the statement, and not the truth of the statement, where the existence of a state of mind, body, or bodily feeling is directly in issue or relevant at trial.
• Such statements can be admitted under s 14:
o 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.
PP v Subramaniam [1956] 1 MLJ 220 (PC on appeal from Malaya) – Statement Reveal State of Mind; not hearsay
Facts
• A was found with three pouches of live rounds of ammunition, and claimed that he had been forced by terrorists to operate with them, and would have killed him if he didn’t comply
• Issue was whether the A’s evidence of threats from the alleged terrorists and his conversations with them is admissible
/held/
• Evidence is admissible
o Evidence of a statement made to a witness by a person who is not himself called as a witness is not hearsay if it is adduced to establish the fact that the statement was made (which A did perceive), as opposed to the truth of the statement
o PC determined that the evidence should be admitted because the purpose of tendering the statements was not to prove factual content (that they would have killed A), but rather to show A’s state of mind (that he believed that they would have killed him)
o A’s statement is therefore relevant to the defence of duress, as duress depends on how A reacted to the threat, and not on whether the threat was true or whether it would be carried out
R v Ratten [1972] AC 378 (PC) – Statement Reveal State of Mind; not hearsay
Facts
discharged accidentally while he was cleaning it
• To rebut that defence, P called evidence from a telephone operator testified that she had received a telephone call 3 minutes before the shooting from A’s house, and a female voice answered, was hysterical and sobbing, and said ‘get me the police’ • Was the operator’s evidence hearsay
/held/
• Per Lord Wilberforce, the evidence was not hearsay and was admissible as evidence of a relevant fact à V’s state of mind
o The mere fact that W’s evidence includes evidence of words spoken by another who is not called is not an 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 (and not the contents) is a relevant fact, and W can give evidence that they were spoken
o Operator’s evidence that the voice was hysterical and sobbing, and that the caller desired for the police to be called was relevant as showing that V was in a state of emotion or fear à relevant to the defence of accident
• Crucially, on A’s argument that the evidence was tendered as evidence of an assertion by V that she was being attacked by A, with the effect that it was hearsay, their Lordships thought it was right to deal with As submission on the assumption that there is a hearsay element to the evidence, and went on to find that even if the evidence was hearsay, it would be admissible under the doctrine res gestae
o Suggests that its difficult to tell when evidence of a state of mind may contain
an implied assertion
R v Blastland [1986] AC 41 (HL) – Statement Reveal State of Mind; not hearsay provided relevant
Facts
• Case of murder and buggery of a boy - A admitted to the charge of buggery, but sought to tender statements from a passerby M who made statements indicating knowledge that the boy had been murdered even before anyone discovered the body → SUSPICIOUS
/held/
• HoL held that M’s state of mind was not directly in issue on a prosecution of A
o While statements made to a witness by a 3P are no excluded by the HSR if they are adduced solely to prove the state of mind of either the maker of statement or the person who the statement was made to, the principle only applies when the state if mind in question is either itself directly in issue, or directly and immediately relevant to an issue arising at trial
o The issue at trial is whether A had buggered and murdered the boy - M knowing that the boy was murdered is neither in issue or relevant to the issue
§ What was relevant wasn’t what M knew, but how M knew it, which is a matter of pure speculation which A’s statements has no probative value regarding
• Lord Griffiths in Kearley said that it is settled law that A cannot prove in evidence a
confession to the same crime made by a 3P who isn’t a witness à hearsay
murdered, this is admissible as proving M’s knowledge, and knowledge is a state of mind
o But it’s a strange state of affairs – if M confesses, we cannot adduce the
evidence, but if he merely hints that he committed the murder, we can adduce it under this exception
• Can take Blastland to stand for two things:
o [1] The mental or physical state must itself be directly in issue at trial – M’s mental state was not in issue – how he had the knowledge was relevant;
o [2] The statement must be directly relevant in considering the state of mind or physical state – A’s evidence was not probative as to how M knew the boy was dead
3 . A S S E R T IO NS T H A T C O N S T I T U T E H E A RS A Y
A. Intended Assertions by Statement or Conduct
• If a statement is made by a maker with an intention to convey a fact, which is precisely the fact that the court is asked to believe, it would constitute a “statement of relevant facts” under s 32 – asserts the truth of what was said
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Oral assertions
• R v Gibson – P‘s testimony that an unidentified woman pointed at A’s house and said ‘that paerson who threw the stone went in there’ was held to be admissible, as it was adduced to prove the truth of what the woman said
o Dennis: the court is asked to assume that the statement was true despite not being in the position to assess the unidentified woman’s reliability as a reporter of the events
• R v Sparks – A, a white man, was convicted of indecent assault of a young girl. TJ refused to allow the Defence to call the girl’s mother to testify that about an hour an a half after the incident, her daughter told her a coloured boy had assaulted her.
o On appeal, TJ’s decision not to admit the evidence was upheld – the purpose of producing the statement was to prove the facts stated – that a coloured boy, and not A had committed the act
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Assertions by Conduct
o Chandrasekera – W’s testimony as to V’s nod of assent to the question of whether it was A who cut her throat was held to constitute ‘statements, written or verbal, of relevant facts’ under s 32 of the Ceylon Evidence Ordinance
v
Implied Assertions
• Implied assertions are statements or conduct that are not intended by the speaker to assert the fact that the evidence is tendered to prove, but nonetheless implied the maker’s belief in the existence of the fact the evidence is tendered to prove
o Essentially, the court treats the implied statement/conduct as equivalent to an express assertion of the fact to be proved
• Should implied assertions fall within the hearsay rule? • NAY
o Implied assertions are generally accepted to be more reliable than express assertions because they are frequently unintended, such that the maker has no usually has no intention to deceive in respect of the facts implied by his statement or conduct. Hence, the risks of manufactured or fabricated evidence are significantly lessened.
§ There is therefore no compelling systemic reason for applying the HSR to such evidence
§ Additionally, considering the abolition of the jury trial in Singapore, there is no danger that a jury may place undue emphasis on such an assertion. By taking into account all relevant actors, the court is in a more favourable position to accord the appropriate weight to such evidence
o In fact, implied assertions arguably should not be treated as hearsay, but as evidence upon which the court may draw the appropriate inferences based on a careful examination of the circumstances, such as whether the inferences drawn are supported or contradicted by other evidence.
§ This provides a much more flexible process for determining the truth of the facts then the hearsay rule, and arguably enables the adjudication process to become more accurate
§ This is the view proffered by Minister of Law K Shanmugam during the Second
Reading of the Evidence (Amendment) Bill: What we are doing now is… to give the
courts the discretion to sieve through the evidence to see which part should be allowed if the judge believes that to be in the interests of justice in the particular case. We should not approach the cases and the evidence as a series of technical hurdles for the prosecution to jump. We must also remember that there is an interest of society in allowing relevant evidence, and that the judge is best placed to decide on what is relevant
• YAY
o Implied assertions may be more unreliable than express assertions, because they are based on perceptions that cannot actually be verified unless the maker of the statement or conduct is in court (Majority in Kearley)
§ The maker of the statement may have mistaken the identity or misunderstood the situation, the witness may have misheard or misunderstood the maker, or the court may have drawn the wrong inference altogether
• E.g. she may just call her fuckboi “daddy”
• Implied assertions may just introduce additional elements of ambiguity or imprecision, further increasing the danger of unreliable evidence at court • What is the Singapore position?
o There is a distinction between assertions implied in statements and assertions implied in conduct – only assertions implied in statements are inadmissible hearsay
§ In s 32A, only verbal statements fall within s 32(1), which governs the exception to the HSR. By purposely excluding conduct and including on protests, greetings and verbal utterances, it is suggested by Chinty that the Legislature clearly intended for
implied assertions by conduct not to be caught by the hearsay rule in the first place.
§ Considering Rajah JA’s judicial direction in Lee Chez Kee, and the structure of the EA, such evidence is arguably admissible under s 8(2), which admits evidence of the conduct of the party or his agent, which is relevant to a fact in issue or a relevant fact.
• Therefore, evidence of A’s conduct is relevant if the conduct influences or is influenced by any fact in issue or relevant fact
• Chinty says that such a position is untenable – the statement “hello X” is excluded, but the conduct of waving to X is not
• Implied Assertions by Statements
Wright v doe d Tatham (1837) 112 ER 488 – Third party statements made out of court which imply
an opinion or statement on the matter at issue is inadmissible hearsay Facts
• Issue was whether a testator was mentally competent to make a will
• Person who claimed the will’s validity sought to prove the testator’s mental competency at the time of making the will by adducing certain letters written by 3Ps to the testator, for the purpose of showing that the writers (who were all dead) must have assumed that he was sane as seen from the style of their language
/held/
• Letters are inadmissible for the purpose of proving that the testator was mentally competent because they were tendered to prove the writers’ implied assertions concerning the testator’s sanity
o The question is whether the contents of the letters are evidence of the fact that the party seeks to prove
o The fact sought to be proven was the testator’s mental competence, which was proven based on the truth of the contents of the letters, which the writers are not on oath to testify to
o Proof of a particular fact or opinion implied by a 3P is inadmissible in all cases where a statement of that fact or opinion not of oath would be of itself inadmissible
• Examples of other implied assertions:
o If the family of the testator took precautions in his absence as though he were a lunatic;
o If he was elected to some high and responsible offence; o If a physician permitted the will to be executed by the testator;
o On a question of seaworthiness, if the captain, after examining every part of the vessel, embarked on it with his family
Supported by Teper v R [1952] (PC from British Guiana) Facts
• A was charged with setting fire to his shop maliciously and with an intent to defraud. • P wanted to adduce evidence from a police constable for the purposes of
place is burning and you going away from the fire”, and saw a black car being driven away from the direction of the fire by a man resembling A
/held/
• Evidence was inadmissible – the rule against the admission of hearsay evidence is fundamental, and since the woman was not a witness truthfulness and accuracy of the woman’s words could not be tested by cross examination, and the light which demeanor threw on a testimony was also lost
• Not the best evidence if it is not delivered under oath
• Dennis: This is very weak evidence, you’re asking the court to rely on the judgment of an unidentified woman in an excited crowd at night who had caught the glimpse of a man who may have been A
Walton v R [1989] HCA 9 – The statement “hello daddy” by a child over the phone 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 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
• A was charged with the murder of his wife
o [1] Three witnesses testified that the wife told them that she was going to meet A
o [2] Another witness testified that prior to the murder, the wife spoke to someone on the phone and arranged a meet the caller at the Town Centre and told her son “M, daddy’s on the phone” à express assertion
o [3] M spoke on the phone sating “Hello, daddy” /held/
• [1] Court held that this was admissible as original evidence of V’s state of mind – trial judge took care to advise the jury that this evidence was only admissible as evidence that V intended to meet Df, and not for the further proposition that she actually met Df • [2] Ditto, because the testimony was otherwise merely hearsay assertions concerning
the identity of the caller • [3] The interesting part
o The majority held that the words uttered by the boy were mere hearsay, and strictly speaking inadmissible.
§ The value of what the boy said lay in the truth of the implied assertion that the person he was speaking to on the phone was in fact his “daddy”
o However, Mason CJ was of the opinion that the objection made to the admissibility of the testimony that the boy said “hello daddy” is based on the assumption that the statement contains an implied assertion as to the identity of the caller, and this assertion amounts to an inadmissible hearsay
§ Implied assertion – an assertion inferred from a statement or from conduct, generally not deliberately intended by the author
both implied and express assertions, where an assertion is not made directly by words or actions but is derived by implication from those words or actions, there will be depending of relevant circumstances of the case, often be special considerations relevant to the determination of admissibility
o Hearsay rule should not be applied inflexibly
§ Where the dangers which the rule seeks to prevent are not present or are negligible in the circumstances of the case, there is no basis for a strict application of the rule
§ Equally, where the trial judge is of the opinion that the dangers are outweighed by other aspects of the case lending reliability & probative value to the impugned evidence, the judge should not exclude the evidence due to a rigid & technical application of the HSR – while it must be borne in mind that there are often considerable dangers that justify the existence of the rule, especially in the field of implied assertions, there will be occasions where the circumstances will combine to render the evidence sufficiently reliable for it to be considered and evaluated, notwithstanding that strict application of the HSR renders it inadmissible
• Rule App:
o Factors favouring admission - the extreme unlikelihood of concoction on the part of the child
§ The unlikelihood of concoction would often be a factor of sufficient weight to justify admission of the evidence for purposes of evaluation o Factors that do not favour admission – lack of opportunity to xx the child o Therefore with implied assertions, HSR is less rigorous à for TJ to decide
whether or not a particular implied assertion is of a kind to which the rationale underlying the HSR would be relevant
§ If yes à judge may determine that it would be dangerous to admit the HSE, and ordinary HSR + exceptions apply
• Would include almost all express assertions, because they lend themselves readily to a suspicion of concoction
§ But if assertion is made by implication, on the balancing of competing considerations, the court can use a less strict approach in “very rare cases”
• EA is archaic as a code – does it allow for such a discretion, even if none of the
R v Ratten [1972] AC 378 (PC) – Statement revealed state of mind; not hearsay
Facts
• A was convicted for the murder of his wife, but his defence was that the gen had discharged accidentally while he was cleaning it
• To rebut that defence, P called evidence from a telephone operator testified that she had received a telephone call 3 minutes before the shooting from A’s house, and a female voice answered, was hysterical and sobbing, and said ‘get me the police’ • Was the operator’s evidence hearsay
/held/
• Did wife’s request involve an implied assertion that she was about to be attacked by her husband or was the statement admissible as original evidence to show her state of mind (i.e. not to assert that he was about to attack her, but to show that there was a sobbing & hysterical woman)?
R v Kearley [1992] 2 AC 228 (HL) - P sought to adduce evidence of certain telephone calls made to
A’s house. The callers requested to speak to A, and asked to be supplied with drugs
• Majority – evidence was not admissible to show the callers’ state of mind or beliefs, which is irrelevant. Evidence is also not admissible to show that A was a drug supplier since they were all impliedly asserting that he was a drug dealer (hearsay)
• Minority – the calls and visits were circumstantial evidence showing that A established a a market for the supply of drugs
Facts
• Small quantity of drugs found in A’s house – insufficient to charge him with trafficking • The Police remained on premises for several hours for the purposes of securing more
evidence:
o Answered numerous telephone calls from callers asking for “Chippie” (A’s nickname) to supply “the usual”;
o Visitors also came to the house asking for Chippie to sell them drugs
o These callers and visitors were not called to testify, but the officers gave evidence of their conversations with the callers and visitors to show that A was a supplier of drugs, and therefore guilty of traffickings
/held/
• Issue: Did the statements carry an implied assertion that K was a supplier? • Majority
• Lord Bridge: first question is whether the fact that the request for drugs was made is in itself relevant to the issue of whether A was a supplier
o The fact that words were spoken may be relevant if they reveal the state of mind of either the speaker or the person to whom the words were spoken, if the state of mind is in issue or relevant to a matter in issue
§ On facts à whether people think he’s a supplier is not relevant to whether he’s a supplier
§ Sole possible relevance of the words spoken is because they impliedly assert that A is a supplier. If the speakers had expressly said on the phone that Chippie supplies his drugs, this would clearly be hearsay § Question is whether the words impliedly asserting a relevant fact can
be admissible à cited Wright v Doe d Tatham, Blastland, it’s a clear ‘no’, evidence of words spoken by a person not called as a witness which 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
o Next question is whether, if evidence that the officer heard one person request drugs from A is inadmissible as HSE, is the evidence admissible if P tenders evidence relating to the plurality of such requests made at the same place and on the same day?
§ The proposition is without authority – while the probative value of a plurality of requests is high, it is clear that the probative force of the HSE in particular circumstances has never afforded a ground for disregarding the HSR à strict application
§ While Bridge appreciated the arguments in favour of limiting the operation of the HSR for implied assertions, he was of the opinion that
v
Implied Assertion by Conduct – should application of the HSR extend to include
implied assertions by conduct?
• UK Position
• Implied assertions by conduct are inadmissible – like cases of implied assertion by statement, the assertion cannot be challenged in court
• However, there are no cases that have actually considered implied assertions by conduct, we only have the examples given by Parke B in Doe d Tatham
any change should come from Parliament, and not from the courts • “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 à but this is irrelevant and therefore inadmissible
o Argeed that this is an implied assertion – the object of tendering the evidence would be to establish the truth of what is contained in the statement by way of necessary implication, which is precisely what the rule prohibits
o Agreed that any relaxation of the HSR’s application must be achieved via legislation
• Lord Oliver: Each request for drugs is probative of the state of mind of the caller o But this is not a fact in issue à irrelevant/inadmissible
o Evidence only probative of fact in issue (Df’s intention) with regards to:
§ The fact that the callers asked for “the usual” – by necessary implication, this is a statement that A has supplied drugs to these callers in the past; - hearsay
§ Calls/visits import the belief or opinion that A was willing and able to supply them with drugs – if, at trial P wanted to adduce evidence from a witness that he believed the drugs would be supplied (c/f evidence that the drugs were supplied) its inadmissible because it’s a mere statement of opinion that’s unsupported
• A fortiori, same inadmissible belief cannot be inferred from a reported statement
o Agreed that the multiplicity of calls did not make the evidence admissible – this would go to weight & reliability, and not admissibility
• Minority: Lord Brown-Wilkinson
• Evidence should be admissible on the basis that there was such a large number of callers and visitors that it gave rise to a clear inference that A set up a drug market accessible to the public → no longer hearsay evidence, it was circumstantial evidence at this point
• As pointed out by HHL, the problem is that ‘circumstantial evidence’ is really a
conclusion rather than an argument – where should be draw the line of when the number of callers can establish a “market’? If there isn’t so many, is it still safe to draw the inference?
o Significantly, Kearley isn’t even the law in the UK
o Defined as evidence “with reference to the matter in issue in each case (and are) 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” o Examples:
§ 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;
• Rupert Cross argued that a distinction should be drawn between implied assertions in statements and by conduct – implied assertions by conduct are arguably more reliable that those made by statement, as this follows a conventional understanding that “deeds speak louder than words”
o Would a Captain take his family on a ship if he wasn’t sure that it was seaworthy?
o Although Pinsler says this depends on the circumstances of the case – could be that the Captain was searching for stowaways rather than checking up on the seaworthiness. The reliability of an implied assertion is therefore not always guaranteed considering the intention and the perception of the maker cannot be verified
• SG Position
• [1] The EA doesn’t distinguish between express and implied assertions in statements. The general consensus is that despite the absence of an expressly defined rule against hearsay in the EA, the common law exclusionary rule should apply independently or through s 62 of the EA
• [2] However, since s 17 – 40 which set out the exceptions to the HSR make no reference to implied assertions, it is arguable that there was no need to have an explicit EA provision admitting implied assertions because implied assertions by statement are not intended to be hearsay at all.
o Sensible position – an implied assertion is normally unintended, so the dangers of deception and concoction are lower;
§ Furthermore, since Singapore has abolished the jury trial system, it is arguable that judges are well-equipped to draw their own inferences on the basis of the circumstances in which the assertion was made
§ In any case, the court reserves the statutory discretion to exclude relevant HSE where it is just to do so. Hence, the danger of unjustly prejudicial evidence not being excluded is less pronounced.
• [3] However – the newly amended s 32A, which sets out an exception to the HSR, arguably does cover implied assertions by oral statement
o A statement not intended to convey the fact that the court is asked to believe (not an express assertion) and which does not directly state the fact but suggest it by necessary implication (an implied assertion) should fall within s 32 by virtue of s 32A, which equates any “protest, greeting, or other verbal utterance” implying “any fact”, with a statement of such a fact
o By the same logic, there is no need to define implied assertions of a verbal statement as being admissible under the exception if it were not already assumed that such evidence constituted HSE under the HSR implicitly acknowledged by the EA
o However, the position seems to be different for implied assertions by conduct (not a “protest, greeting, or other verbal utterance”) which is not covered by s 32A – Chinty
argues that the Legislature quite clearly intended that implied assertions by conduct are not caught by the HSR in the first place
§ Also makes sense – risk of concoction even lower since the author probably did not intend to convey the fact that the statement is relied upon to prove since no representation of the fact was intended at all
§ From a policy point of view as well – if HSR is extended to implied assertions by conduct, it would be extraordinarily wide since arguably any evidence that describes what other people are doing would be caught under the hearsay rule
v
Negative Hearsay
• Negative assertions are situations in which the absence of anything stated may amount to an assertion (Patel)
o This arises in situations where there are omissions in the records, and there is a school of thought that feels that negative hearsay should be treated more leniently because:
§ Its in a record;
§ Its harder for someone to prove a negative than a positive
o On the other hand the argument (as put forth by Roberts & Zuckerman) is that negative assertions should be inadmissible because an inference from the absence of an entry presupposes that the record is complete, correct, and reliable – that the record is not lying when it is silent. Therefore when the author of the record is not called as witness, the inference must run through an assumption, wholly unsubstantiated in evidence, that accurate and complete entries have been made with each entry in the record
• Arguably, the SG position is that negative hearsay is inadmissible at court
o The newly amended s 32, which sets out an exception to the HSR, arguably covers negative assertions, as the adducing evidence of an absence of any information about a fact in circumstances where, if the fact were true, some information or record would ordinarily be present, is tantamount to an express statement that the fact is untrue or did not occur, and must be treated alike. A negative assertion therefore should qualify as a “statement of relevant fact” under s 32
§ This view is also consistent with the proposition that the application of the hearsay rule is dependent on the purpose for which the evidence is sought to be tendered o While the common law cases of Patel and Shone accept that negative hearsay is admissible
if “an officer responsible for… compilation and custody [of the records were] called to give evidence of the method of compilation” (at 96)
§ However, in Singapore, negative hearsay falling under s 32 should only be admissible if it satisfies a limb of s 32, even if a witness called is familiar with compilation method.
§ Therefore, even if there’s a witness willing to testify à the evidence is hearsay and is prima facie inadmissible
R v Patel [1981] 1 All ER 94 (CA)
Facts
• A was charged with assisting the illegal entry of Ashraf into the UK
• P called an immigration officer to give evidence that Ashraf’s name was not in the Home Office’s immigration records of legal entrants
R v Shone (1983) 76 Cr App Rep 72 (CA)
Facts
• A was charged with received stolen car springs • The stock clerk & manager testified that:
o The stock records reflected receipt of the springs;
o There was no indication in the records that the springs were sold or otherwise disposed of
/held/
• Leonard J: This evidence was not hearsay, and admissible
o The clerk & the manager were entitled to explain the significance of the absence of entries on the card
o This was direct evidence on the basis of which the jury was wntitled to conclude that the springs were stolen
• However, both cases merely focus on the guarantee of the reliability of the record,
and do not actually address the issue of whether a negative assertion is hearsay
David Chua v DBS Bank [2015] 5 SLR 231 – SG interpreting Shone
Facts
• Pf opened a fixed deposit account with Df bank and received a fixed deposit receipt • 2 months later – opened another fixed deposit account and received another receipt
o Put both these receipts in a safe deposit box also maintained by Df
o In 2012 – retrieved the receipts and asked Df to confirm the amount due to him under each receipt, but Df was unable to find any trace in one of the account on the bank’s records
o Bank’s argument was that the account was closed in or before 1985 – it had no direct evidence of, so Df relied on the lack of any trace of the account on its records, and on Pf’s own conduct over the years as circumstantial evidence that the account had been closed.
/held/
• Evidence was admitted pursuant to s 171 of the EA – mode of proof of entries for bankers’ books
o However, the probative strength of the negative hearsay is determined by whether the party relying on the negative hearsay can show that “its systems and procedures for keeping those records sufficiently rigorous & robust
Probative value of negative hearsay generally higher in industries such as banking,
/held/
• Bristow J: CoA held that the officer’s evidence & immigration records were inadmissible, unless the officer who compiled and had custody of the records testified as to their effect
• The records “cannot therefore speak for themselves in criminal proceedings”, and an officer responsible for their compilation and custody should have been called to give evidence that the method of compilation & custody is such that if Ashraf’s name is not there, he must be an illegal entrant”
owing to the rigour & robustness of their record keeping systems
B. Other Ways of Circumventing the Hearsay Rule
v
Circumstantial Evidence
• Lord Brown-Wilkinson in Kearley
o The fact that many callers and visitors believed that K was a drug supplier is not hearsay because there was such a large number of callers and visitors that it gave rise to a clear inference that A set up a drug market accessible to the public → no longer hearsay evidence, it was circumstantial evidence at this point
• Ratten
o The fact that V made a phone call requesting for the police is not hearsay because it is used to show that the wife was in a state of fear, which is relevant to rebut the defence that shooting was accidental
R v Ratten [1972] AC 378 (PC) – Statement revealed state of mind; not hearsay
Facts
• A was convicted for the murder of his wife, but his defence was that the gen had discharged accidentally while he was cleaning it
• To rebut that defence, P called evidence from a telephone operator testified that she had received a telephone call 3 minutes before the shooting from A’s house, and a female voice answered, was hysterical and sobbing, and said ‘get me the police’ • Was the operator’s evidence hearsay
/held/
• PC held that:
o Evidence of the operator was circumstantial evidence from which the inference of relevant facts can be drawn. The evidence adduced to show V’s mental state is relevant as showing that V was in a mental state of fear rebuts A’s defence that the shooting was an accident;
o Even if the evidence was hearsay, it was admissible as res gestae
• Court’s finding that the operator’s statement was mere circumstantial evidence and
therefore was not hearsay can be criticised
o Reasoning was that the court is not interested in any assertion made by the
woman as to why she was frightened, but only interested in knowing she was afraid
o However:
§ Can an inference that she was frightened really be drawn if we don’t
look at her words at all?
§ Inference that she was scared of husband could not be drawn from the
call alone – no evidence establishing husband’s identity at all
o In fact, court arguably hesitant in concluding this isn’t HSE à also looked at
v
Real Evidence
• Real evidence concerns tangible objects produced before the court for direct perception by the trier of fact
o While HSE comes in the form of assertions tended to prove facts which they refer to, real evidence is ex hypothesi not hearsay because the judge draws the inference directly
o Issue: does the evidence assert the fact it is tended to prove (HSE) or can the trier of fact draw the inference directly?
R v Rice [1963] 1 QB 857 (CCA
Facts
• A was charged with the conspiracy to commit fraud with several persons, including M
• P’s case turned on whether A took a plane from London to Manchester with another conspirator – P wanted to adduce evidence that a used ticket found in a repository of tickets used for that flight showed A’s and M’s names
/held/
• Winn J: Not hearsay
o The ticket was admissible as circumstantial evidence from which the jury may draw from it, including the fact that A was on the flight o “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”
• Problem with this case is that it relies on a statement contained in the ticket
(the name, date and the destination) of relevant facts (whether A flew to Manchester on the day in question), and the ticket would only be real evidence if the ticket itself, and not the assertions contained in it, were
R v Lydon (1987) 87 Cr App R 221 (CoA)
Facts
• A, one Sean Michael Lydon, was convicted of robbery – raised the defence of alibi o About one mile from the scene of the robbery, there was a gun and two
pieces of rolled paper on which someone had written ‘Sean rules’ and ‘Sean rules 85’
o Ink of similar appearance & composition to that on the paper was found on the gun barrel
/held/
• CoA held that evidence relating to the paper was properly admitted as circumstantial evidence
o References were not hearsay because they involved no assertion as to the truth of the contents of the paper – not tended to show that Sean ‘ruled’ anything
tickets, it would be real evidence, because the court could observe the ticket and draw these inferences without relying on the contents of the ticket
o Appears to be an implied assertion
• However, Dennis argues that since the airline’s practice of collecting used
tickets in a file was established, it would be legitimate to conclude that the name of the ticket was most likely to be the name of someone who used it. The background generalization that underpins this conclusion is that things bearing marks of identification that are found in certain places are likely to have been in the physical control of a person with that identity who took them there
o There is a difference between using a document for a hearsay
purpose, and using a document as a thing for the purpose of identifying a particular person at a particular place and time
• Pinsler: Rice specifically is a tough case because the inferences which can be
drawn from the circumstances coincide with the details on the ticket itself o Essentially, the court’s argument is that the ticket isn’t being relied
upon for its substantive assertion, but as a document simply bearing a particular name which in the circumstances, entitles the trier of fact to draw the necessary inferences
o As per Winn LJ: 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 on it has more likely than not been used by the person of that name
• In SG, this is under s 32(1)(b) of the EA concerning statements in the course of
trade, business, profession or other occupation
PP v Ang Soon Huat [1991] 1 MLJ 1 (HC)
Facts
• A was charged with trafficking heroin.
• P needed to prove that the quantum was more than 15 grams, and adduced computer printouts of the results of chromatograph and spectrogram tests /held/
• Computer printouts of results of scientific testing was admissible as real evidence
• The court drew a distinction between the situation in which the computer printouts are “nothing more than a regurgitation of information fed in” and tendered without any accompanying oral evidence à would constitute hearsay
o C/f situation where the computer not only records but also processes & calculates info fed into it, and there is accompanying oral evidence to confirm these matters à printouts would constitute real evidence
v
Photofits & Police Sketches
• Whether photofits or police sketches constitute hearsay evidence is unclear in Singapore. The English common law does not treat photofits or police sketches as hearsay evidence (R v Percy
Smith, R v Cook), and likens them to photographs (R v Cook)
• However, the better view is that such evidence constitutes hearsay because it is an assertion by the police artist of a relevant fact – A’s identity – which was perceived by the witness, and not the police artist
o Pinsler agrees, and argued that a photograph, unlike a sketch or a photofit, does not involve human assertion. A photograph is real evidence in a true sense because the court is invited to observe it, and then draw the necessary inferences, and the reliability of the camera can be established by evidence
o However, given the lack of local jurisdiction on this point, assuming that the sketch and photofit does not contravene the hearsay rule, such evidence may be admissible under s 9 as being relevant to show identity
R v Percy Smith [1976] Crim LR 511 – police sketch is not hearsay
Facts
• A sketch of A had been made by a police officer in accordance with the description of him that was provided by a young girl, who had seen him near the scene of the crime
• D objected to the sketch on the basis of hearsay /held/
• Police sketch was not HSE à it was the assertion of the witness, who used her memory to direct the sketching of the hand of the officer
• No need to rely on any conversation between witness & officer to link her to the sketch – its effectively a statement made by her, the person who perceived A
R v Cook [1987] QB 417– photofit is not hearsay
Facts
• V of robbery and indecent assault described her attacker to a police officer, who pieced together a photofit picture from her description
• At trial, D submitted that a photofit is not a photograph, and is no more than an assertion by the officer of a relevant fact – the identity of the robber – which he did not perceive, and should be inadmissible as evidence of hearsay
/held/
• Likened the photofit to a photograph – both are manifestations of the seeing eye, translated onto paper through the medium of the officer’s drawing skill. The officer is merely doing what the witness could do if she possessed the requisite skill
o When he is drawing, he is akin to a camera, albeit without the clarity of a photograph which a camera automatically produces
o However, since photographs are automatically not subject to hearsay, photofits are similarly not subject to the HSR
4 . A P PR O A C H E S T O T H E H E A R S A Y R U L E I N T H E E A
• The human world, it’s a mess – but, the Chinty approach should be used:• [1] Does the statement constitute hearsay under the common law exclusionary rule? o What are the facts that the statement is tendered to prove?
o Does it have relevance as non-hearsay evidence?
• [2] Is the statement admissible via any exceptions under the statute Para
• As a preliminary issue, there is some contention regarding the basis for the hearsay rule in Singapore. As per Rajah JA in Lee Chez Kee at [75], for the common law hearsay rule to exist “within or independently” of the EA would be inconsistent with the EA, which renders admissible evidence that, in common law would be treated as hearsay, so long as it is ‘legally relevant’ under s 32 or any other provision. Strictly speaking, common law rules inconsistent with the provisions of the EA should be repealed. This casts doubt over Soon Peck Wah, which imported the common law hearsay rule on the basis of s 62.
• However, it is submitted that this is not a significant issue considering Rajah JA in Lee Chez Kee also conceded that “both the common law & the EA ways of identifying hearsay will always nearly provide the same result” (at [?]), and that “no injustice has been caused by the different approaches” (at [?]). Furthermore, Lee Chez Kee also failed to provide any solutions to reconcile the EA with the common law exclusionary rule.
• Additionally, given the number of local decisions adopting the common law exclusionary rule (PP v
Subramaniam, Soon Peck Wah, Saga Foodstuff), it is submitted that courts should still take the common
law rule into consideration and enter into analysis with regards to whether the statement adduced is hearsay, despite Lee Chez Kee being principally correct that a fact should be prima facie admissible once it satisfies s 6 – 16.
• On application of a hybrid approach that combines both common law and statute, this analysis will consider (1) whether the evidence in question is hearsay evidence per the common law hearsay rule, and (2) if so, whether th evidence should nevertheless be admissible under s 32 of the EA
A. Preliminary Issues
v
MULTIPLE HEARSAY
• On the facts of the case, the evidence of _______ is a case of multiple hearsay, as the fact was perceived by ___, and communicated from ___ to ____.
• While the wording of s 32(1)(_) appears to only cover first-hand hearsay, s 32(1)(b) provides that multiple hearsay is permitted with regards to statements made in the course of trade, business, profession or other occupation.
o The exception includes “a statement made in a document that is, or forms part of, a record compiled by a person acting in the ordinary course of trade, business, profession or other occupation based on information supplied by other persons”, which indicates that the compiler of the record could be different from the supplier of the information, and that the information can be supplied by “other persons”
• However, the 2012 amendments did not include a general provision as to whether multiple hearsay would be acceptable in relation to the other hearsay exceptions.
o In Hearsay Reforms: Simplicity in Statute, Pragmatism in Practice?, Associate Professor Chin Tet Yung suggests that the fact that there is no special provision for multiple hearsay could suggest that it may be regarded as a matter of weight rather than admissibility
§ It is submitted that such a reading of the EA would be logically sound considering judges are arguably well-equipped to draw their own inferences on the basis of the circumstances in which the assertion was made and conveyed to the final supplier of the evidence.
§ In any case, the court reserves the statutory discretion to exclude relevant HSE under s 32(3) where it is just to do so. Hence, the danger of unjustly prejudicial evidence not being excluded is less pronounced.
v
Logically relevant
• Under s 32(1), the statements must contain logically relevant facts to be admissible
B. S 32(1)(a) – Dying Declarations
Section 32(1)(a) provides that when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question; such statements are relevant whether the person who made them was or was not at the time when they were made under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.
• S 32(1)(a) is much wider than its common law equivalent, which was only applicable for murder charges, and had to be made with a settled, hopeless expectation of death before the statement could be admissible (Bedingfield)
• Per common law, the dying declaration must be sufficiently related to W’s death, and therefore a mere expression of fear & suspicion are not within the scope of the section (Pakala Narayana Swami)
o The shorter the time span between the statement and the facts contained in the statement, the closer the connection between the statement and the circumstances of the transaction (Yeo
Hock Cheng)
o Yeo Hock Cheng was a case where V told her father 9 days before her murder that A had threatened to kill her if she told her father that they had slept together. Due to the lapse of 9 days and the fact that in the intervening period, the relationship between her and A had apparently improved because he had promised to marry her, the statement was held to be too remote to be admitted
o However – a statement that V made to her sister on the day of the murder that she was going to meet A and that he told her to dress like a man was admissible under this provision
• Generally, the court would require proof of the exact words uttered by V, especially if there is a written record of his statement (Toh Lai Heng – police officer recoding a dying declaration in his own words – inadmissible)
o However, if the witness had no opportunity to record the statement in writing but is able to recall substantially what was said, he may be permitted to relate those words (Ong Her Hock) • The usefulness of s 32(1)(a) is much limited with the enactment of s 32(1)(j), and this substantial overlap
between the provisions was conceded by Minister for Law K Shanmugam in the Second Reading of the Evidence (Amendment) Bill. However, s 32(1)(a) was still retained because there is a substantial body of
C. S 32(1)(b) – Ordinary Course of Trade, Business, Profession, or
other Occupation
• The rationale of this provision is that business records are admissible as evidence because they are
prima facie reliable. This is because such records are likely to be accurate since they are compiled
by persons who are “disinterested” (Thomas LJ in Horncastle), and compiled with regularity.
Section 32(1)(b) provides that when the statement was made by a person in the ordinary course of trade, business, profession or other occupation and in particular when it consists of –
(i) any entry or memorandum in books kept in the ordinary course of a trade, business, profession or other occupation or in the discharge of professional duty;
(ii) an acknowledgement (whether written or signed) for the receipt of money, goods, securities or property of any kind;
(iii) any information in market quotations, tabulations, lists, directories or other compilations generally used generally used and relied upon by the public or by persons in particular occupations; or
(iv) a document constituting, or forming part of, the records (whether past or present) of a trade, business, profession or other occupation that are recorded, owned or kept by any person, body or organisation carrying out the trade, business, profession or other occupation, and includes a statement made in a document that is, or forms part of, a record compiled by a person acting in the ordinary course of a trade, business, profession, or other occupation based on information supplied by other persons;
• S 32(1)(b) should apply whether the statement is written or oral or otherwise – per Press Automaton, a case under the old s 32(b), a surveyor’s verbal inspection report was admitted as it was made in the ordinary course of business
v
Evaluation of the new s 32(b)
• YAY
• The scope of the exception has expanded significantly –
o Title of the old s 32(1)(b) was amended from ‘made in the course of business’ to encompass statements ‘made in the course of trade, business, profession, or other occupation’
o While the exception was previously restricted to just s 32(b)(i) & (ii), s 32(b)(iii) & (iv) have since been added
o Chinty argues that increasing the scope of the exception to capture ‘the gamut of commercial & professional activities is justified given the diversity of organisations in modern society’
• Provides for multiple hearsay for business records o See above
o This removes the limitations under the old law set out in Vaynar Suppiah & Sons, which held that the old s 32(b) only applied to reports made in the course of business which were prepared first-hand by a person with knowledge of the truth of the contents of the report o However, the absence of an express requirement under s 32(b) that the compiler & the
persons who supplied the information included in the business record must have personal knowledge of the information means that multiple hearsay to an unlimited degree may be admitted – s 32(3)
