report on hearsay in criminal proceedings

8/10/2019 REPORT ON HEARSAY IN CRIMINAL PROCEEDINGS

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LAWREFORMCOMMISSION

REPORTONHEARSAYINCRIMINALPROCEEDINGS

EXECUTIVESUMMARY

Terms of reference

1. In May 2001, the Chief Justice and the Secretary for Justicedirected the Law Reform Commission:

"To review the law in Hong Kong governing hearsay evidence incriminal proceedings, and to consider and make such

recommendations for reforms as may be necessary."

2. A su!committee was a""ointed under the chairmanshi" of the#on Mr Justice Stoc$ to consider the su%ect. A consu&tation "a"er on'Hearsay in Criminal Proceedings' settin( out the su!committee)s "ro"osa&sfor reform of the &aw was "u&ished on *0 +oemer 200-.

Wh! "s #!he r$%e &"ns! hers'#(

*. A sim"&e e"&anation of the term 'hearsay' wou&d e that "when

A tells a court what has told him, that evidence is called hearsay"!1 /he ru&ea(ainst hearsay renders hearsay eidence inadmissi&e in crimina&"roceedin(s, un&ess it fa&&s within one of the ece"tions to the ru&e. /he asisfor ec&udin( hearsay eidence is the assum"tion that indirect eidence mi(hte untrustworthy and unre&ia&e, "articu&ar&y insofar as it is not su%ect tocross!eamination.

. /he ru&e ec&udes from the tria& statements made outside thecourtroom where the "ur"ose of adducin( the statement is to "roe the truthof an assertion it contains. /hus, a statement y a "o&ice witness that: /heictim to&d me that the car which struc$ him was (reen, wou&d e

inadmissi&e to "roe that the car was in fact (reen.

Ch)!er * + ,r"ef h"s!or' of !he hers' r$%e

-. /he need to ec&ude hearsay eidence was first reco(nised in3n(&and in the thirteenth century. /he ru&e continued to dee&o" oer theyears with the (rowin( reco(nition of the need to ensure (reater re&iai&ity oftestimony from witnesses. 4y the e(innin( of the nineteenth century, thehearsay ru&e had ecome we&& esta&ished, and the em"hasis shifted to

1 R May, Criminal vidence5Sweet 6 Mawe&&, *rdedition, 177-8, at 197.

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definition of its ran(e and the creation of ece"tions to the ru&e. 2 In thissecond "hase of dee&o"ment of the hearsay ru&e, two a&ternatie a""roachescom"eted with each other: one was that a&& hearsay shou&d e ec&uded,su%ect to inc&usionary ece"tions whi&e the other was that re&eant eidenceshou&d e admitted, su%ect to ec&usionary ece"tions. * /he former iew

"reai&ed and &ed to the esta&ishment of the "resent hearsay ru&e and thecreation of the arious common &aw ece"tions to the ru&e.

;. In 3n(&and, the many criticisms of the hearsay ru&e in crimina&"roceedin(s fina&&y &ed to the enactment of the Crimina& Justice Act 200*

which reformed the hearsay ru&e and made hearsay eidence more free&yadmissi&e in crimina& "roceedin(s.

9. Reforms in #on( art I? of the 3idence @rdinance 5Ca" =8 dea&s with the

admissii&ity of hearsay eidence in cii& "roceedin(s. It was enacted y the 3idence5Amendment8 @rdinance 1777 5@rd. +o. 2 of 17778, which was "assed y the Le(is&atieCounci& on 1* January 1777.

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"vidence of a statement made to a witness by a person who isnot himself called as a witness may or may not be hearsay! %t ishearsay and inadmissible when the ob&ect is to establish thetruth of what is contained in the statement! %t is not hearsay andis admissible when it is proposed to establish by the evidence,

not the truth of the statement, but the fact that it was made! Thefact that a statement was made, 'uite apart from its truth, isfre'uently relevant in considering the mental state and conductthereafter of the witness or of some other person in whosepresence the statement was made!"(

10. enera&&y, most hearsay ino&es statements that contain ane"ress assertion of facts y the ori(ina& statement!ma$er. Im"&ied assertionsof fact, howeer, a&so fa&& within the sco"e of the hearsay ru&e and are thusinadmissi&e een if the eidence is co(ent and re&ia&e y eerydaystandards. /he #ouse of LordsB decision in $ v Kearley9i&&ustrates this "oint.

In that case the "o&ice arrested the defendant at his home after findin( a sma&&uantity of dru(s and sto&en "ro"erty. Dhi&e the "o&ice were at the house, anumer of te&e"hone ca&&s were receied in which the ca&&ers as$ed to s"ea$to the defendant and to e su""&ied with dru(s. A numer of "ersons wantin(to uy dru(s from the defendant a&so ca&&ed at the house whi&e the "o&ice werethere.


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Common %0 e1ce)!"ons !o !he hers' r$%e

12. A numer of common &aw ece"tions to the hearsay ru&e weredee&o"ed oer time to miti(ate the sometimes harsh effects of a stricta""&ication of the ru&e. Some of the ma%or ece"tions are set out e&ow.

(i) Admissions and confessions of an accused

1*. 3idence of a confession statement made y the accused to a"erson in authority can e admitted in eidence where the "rosecution has"roed eyond reasona&e dout that the statement was o&untari&y made./he confession can on&y e used a(ainst the accused who made theconfession and not a(ainst any co!accused.

(ii) Co-conspirator's rule

1. Another ece"tion is to the (enera& ru&e that the confessionstatement of an accused cannot e used a(ainst his co!accused in re&ation toco!cons"irators. Dhere any "arty to a cons"iracy or %oint!enter"rise hasmade an ora& or documentary out!of!court statement in furtherance of thecons"iracy or %oint!enter"rise which im"&icates a co!accused, the statement isadmissi&e a(ainst oth its ma$er and the "arties to the %oint!enter"rise orcons"iracy.

(iii) Statements of persons now deceased

1-. +ying declarations /he conduct or statement 5e it ora&or in writin(8 of a ictim who was under a sett&ed, ho"e&ess e"ectation ofdeath at the time when the statement was made or conduct "erformed isadmissi&e as eidence of the cause of the ictim)s death in the tria& of a"erson char(ed with murder or mans&au(hter.

1;. +eclarations in the course of duty Dhere an ora& or written statement was made y a "erson who was under a duty to do soecause of his occu"ation, trade, usiness or "rofession, the statement isadmissi&e for its truth when the "erson suseuent&y dies.

19. +eclarations against proprietary interest A statementmade y a "erson of a fact which he $new to e a(ainst his "ecuniary or"ro"rietary interest wou&d, u"on the death of the "erson, e admissi&e incrimina& "roceedin(s as eidence of that fact.

(iv) Res gestae

1=. /he doctrine of res gestae was e"&ained in $ v ond:

'vidence is necessarily admissible as to acts which are soclosely and inetricably mied up with the history of the guilty

act itself as to form part of one chain of relevant circumstances,and so could not be ecluded in the presentment of the case


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before the &ury without the evidence being thereby renderedunintelligible.'10

17. Gn&i$e dyin( dec&arations, the doctrine of res gestae is notconfined to statements made y a "erson who suseuent&y dies and is

therefore una&e to testify at tria&. 3idence fa&&in( within the doctrine of resgestae wou&d not e disa&&owed mere&y ecause the dec&arant is sti&& anaai&a&e witness at the time of tria&.

(v) Statements made in public documents

20. A statement made in a "u&ic document can e admitted as anece"tion to the hearsay ru&e if it was made y a "u&ic officer11who wasunder a duty to ma$e inuiry or who had "ersona& $now&ed(e of the mattersstated, recorded or re"orted in the document. /he document must e $e"t ina "&ace to which the "u&ic is "ermitted access.

(vi) Statements made in previous proceedings

21. In crimina& "roceedin(s, where a witness is una&e to testifyecause of death, critica& i&&ness, insanity, or ecause he is ein( $e"t out ofthe way y the o""osite "arty, his eidence in "reious "roceedin(s may eadmitted "roided certain conditions are met.

(vii) Opinion evidence

22. An o"inion e"ressed y a witness in court may e hearsay innature, ut the indiscriminate ec&usion of o"inion eidence wou&d eim"ractica&e. Hor instance, a witness mi(ht say that he was a&e to see thedetai& of an incident c&ear&y as the day was ri(ht and the weather was fine./he words 'ri(ht' and 'fine' are e"ressions of o"inion. Strict adherence tothe hearsay ru&e wou&d a&so "rohiit an e"ert from e"ressin( an o"inion onmatters which he was to&d or tau(ht y someone e&se, or that he has acuiredfrom some other source, such as throu(h readin( other source materia&s orthe wor$s of others. /he common &aw therefore a&&ows o"inion eidence to eadmitted as an ece"tion to the hearsay ru&e where the eidence is re&ia&eand co(ent.

S!!$!or' e1ce)!"ons !o !he hers' r$%e

2*. A"art from the "rinci"a& common &aw ece"tions to the hearsayru&e out&ined aoe, there are oer 100 statutory "roisions creatin(ece"tions to the a""&ication of the hearsay ru&e to crimina& "roceedin(s in#on(


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(i) Depositions*/

2. Sections 90 and 9* of the @rdinance "roide a scheme for admittin( de"ositions of "ersons who are una&e to e witnesses at the timeof tria&. /hey re"resent an etension of the common &aw ece"tions for

deceased "ersons.

2-. Gnder section 90 of the @rdinance, the de"osition of a "ersonwhom the "rosecution is una&e to "roduce at tria& as a witness sha&& ereceied in eidence, "roided one or more of the fo&&owin( conditions issatisfied:

i. he is dead

ii. he is asent from #on( rocedure @rdinance 5Ca" 2218.

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(iii) Computer records

27. Gnder section 22A518 of the @rdinance, a com"uter (enerateddocument wi&& e admitted asprima facieeidence of its contents if direct ora&eidence of those contents wou&d e admissi&e and certain conditions are

satisfied.-.

*0. Com"uter eidence may a&so e admitted under section 22A5*8if, amon( other reuirements, direct ora& eidence of the "articu&ar facts wou&de admissi&e in the "roceedin(s.

(iv) Baning records

*1. Section 20 of the @rdinance "roides for the admission ineidence of a co"y of any entry or matter recorded in a an$erBs record, so&on( as the conditions &aid down in susections 205185a8 and 58 are com"&ied

with. /his section a&so a""&ies to any document or record used in the ordinaryusiness of an oerseas an$ desi(nated y the Hinancia& Secretary undersection 174518 of the @rdinance. @nce admitted, these documents wi&& eprima facieeidence of the matters they record.

(v) !ublic documents

*2. Section 1= of the @rdinance ena&es co"ies, as o""osed toori(ina&s, of "u&ic documents to e tendered in eidence, su%ect to certainsafe(uards as to the authenticity of the co"ied documents. A statutoryhearsay ece"tion for admittin( "rints of "u&ic documents contained inmicrofi&m or microfiche format is found in section *7 of the @rdinance.

1

/he conditions set out in section 22A528 are:

"/a0 that the computer was used to store, process or retrieve information for the purposes ofany activities carried on by any body or individual1

/b0 that the information contained in the statement reproduces or is derived from informationsupplied to the computer in the course of those activities1 and

/c0 that while the computer was so used in the course of those activities *

/i0 appropriate measures were in force for preventing unauthori2ed interference with thecomputer1 and

/ii0 the computer was operating properly or, if not, that any respect in which it was notoperating properly or was out of operation was not such as to affect the production ofthe document or the accuracy of its contents!"

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(vi) Official documents

**. Section 17 of the @rdinance "roides for the admission ineidence of certain s"ecified documents which are receia&e in eidence incourt1-or efore the Le(is&atie Counci& or any of its committees.

Ch)!er 2 + Cr3"n% )r"nc")%es n3 !he shor!com"n&s of !he)resen! %0

*. Cha"ter eamines the arious shortcomin(s of the hearsayru&e and its ece"tions and notes that there has een wides"read and&on(standin( criticism of the ru&e in other %urisdictions, from %ud(es, academicwriters and &aw reform odies. /he eistin( hearsay ru&e, with its ha"haard&ydee&o"ed ece"tions, has many anoma&ous conseuences, resu&tin( in

"roatie, re&ia&e eidence ein( ec&uded from consideration y the triuna&with rea& "otentia& for in%ustice to the "u&ic interest, inc&udin( the interest ofthe accused.

*-. /he decision in #parks v $1;"roides an eam"&e of how %usticecan e saota(ed y the strict a""&ication of the hearsay ru&e. In this case,the three!year o&d ictim (ir&, who was too youn( to testify, to&d her mothershort&y after the incident that the "erson who mo&ested her was a 'co&ouredoy'. /he statement was inadmissi&e een thou(h the statement wou&d haeecu&"ated the defendant, S"ar$s, a white American Air Horce staff ser(eant.$ v lastland19is another eam"&e. /he accused was a&&e(ed to hae $i&&ed a

youn( oy. /here were, howeer, a numer of "ersons who were "re"ared totestify that short&y after the $i&&in( another "erson $nown as 'M' had to&d themthat a youn( oy had een murdered. /he circumstances were such that MBs$now&ed(e of the $i&&in( raised an inference that he had himse&f committed themurder. /he tria& %ud(e ru&ed that as the "ur"ose of ca&&in( the witnesses wasto "roe y inference that it was M who had committed the crime, theeidence had to e re%ected as it was hearsay and inadmissi&e.

*;. In considerin( whether the eistin( hearsay &aw shou&d echan(ed, and if so to what etent, the re"ort has identified a numer ofcardina& "rinci"&es which it considers shou&d e ref&ected in any ru&e of

eidence. /hese cardina& "rinci"&es are as fo&&ows:

i. 3identiary ru&es shou&d, within the &imits of %ustice and fairnessto a&& "arties, faci&itate and not hinder the determination ofre&eant issues.

1- Gnder section 2 of the 3idence @rdinance 5Ca" =8, the word 'court' inc&udes theChief Justice and any other %ud(es, a&so eery ma(istrate, %ustice, officer of any court,commissioner, aritrator, or other "erson hain(, y &aw or y consent of "arties, authority tohear, receie, and eamine eidence with res"ect to or concernin( any action, suit, or other"roceedin( cii& or crimina&, or with res"ect to any matter sumitted to aritration or ordered to

e inuired into or inesti(ated under any commission.1; E17;F AC 7;.19 E17=;F AC 1.

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ii. Coniction of the innocent is a&ways to e aoided. A&& accusedhae a fundamenta& ri(ht to ma$e fu&& answer and defence to acrimina& char(e.

iii. 3identiary ru&es shou&d e c&ear, sim"&e, accessi&e, and easi&yunderstood.

i. 3identiary ru&es shou&d e &o(ica&, consistent, and ased on"rinci"&ed reasons.

. uestions of admissii&ity shou&d e determina&e with a fairde(ree of certainty "rior to tria& so that the &e(a& adiser may"ro"er&y adise the c&ient on the &i$e&y tria& outcome.

i. 3idence &aw shou&d $ee" u" with the times and try to ref&ect theincreasin( (&oa& moi&ity of "ersons and modern adancementsin e&ectronic communications.

*9. /he re"ort conc&udes that, measured a(ainst these "rinci"&es,the "resent hearsay ru&e and its ece"tions ehiits si(nificant shortcomin(s.

*=. Many of the ece"tions to the hearsay ru&e hae een criticisedfor their restrictie nature and the narrowness of their sco"e. /he asurditiescaused y the strict a""&ication of the hearsay ru&e has &ed Di(more 1= todescrie the ru&e as a "barbarous doctrine" and Lord riffiths to remar$ inKearleythat:

' 3 most layman if told that the criminal law of evidence forbadethem even to consider such evidence as we are debating in this

appeal would reply 4Then the law is an ass4! '-5

*7. /he hearsay ru&e has een wide&y criticised for the fact that it iscom"&e and difficu&t to understand. /he &aw is not easi&y accessi&e. Itcannot e determined from a sin(&e source ut must instead e sou(ht in ahost of se"arate &e(is&atie "roisions and court ru&in(s.

0. /he ru&e a(ainst hearsay is freuent&y criticised for ein(i&&o(ica&, inconsistent, and without any "rinci"&ed asis. 3am"&es inc&ude thefo&&owin( are:

5i8 Refreshin( memory

A witness is a&&owed to refresh his memory from an ear&ier noteor statement. /he court wi&& admit the witness)s refreshedeidence, ut if the witness is not refreshed, there is noece"tion to the hearsay ru&e to a&&ow the ori(ina& writtenstatement to e admitted instead.

1= Di(more, vidence, ?o& -, at "ara 199, uoted in Andrew 4ruce and erard McCoy,Criminal vidence in Hong Kong 54utterworths, Issue 9, 17778, at E-*F of Kiision ?I.

17 E1772F AC 22=, at 2*; ! 2*9.

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5ii8 Kec&arations a(ainst interest

In #on(


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drawn from the non*eistence of a document or

entry, it is direct evidence!"21

+e(atie inferences from the asence of a record are

"ermissi&e, whereas "ositie inferences from the record are

not.

5i8 >roof of state of mind

3idence can e admitted to "roe state of mind or a e&ief,rather than the fact, or the su((ested fact, to which the e&ief isdirected. 4ut if it is rationa& and "roatie to draw the inferenceof fact from the state of mind 5not on&y that was in fear ut thathe had (ood reason to fear8 it is i&&o(ica& to a""&y a ru&e which"reents the trier of fact from doin( so. It is then a&id toconsider whether it is rea&istic to e"ect that a %ury wi&& do

anythin( e&se ut draw the inference of fact.

5ii8 Recent com"&aint

/here seems &itt&e &o(ic in restrictin( the admissii&ity ofeidence of recent com"&aint on&y to cases of seua& assau&t.@nce a(ain, it is then a&id to consider whether, in any eent anddes"ite a&& directions to the contrary, it is rea&istic to e"ect that a%ury wi&& do anythin( other than treat a recent com"&aint aseidence of the truth of the com"&aint.

5iii8 Im"&ied assertions

Dhere there is no intention to assert a fact when a comment ismade, the im"&ied assertion mi(ht we&& e re(arded as se&fauthenticatin(.22

5i8 >reious inconsistent statements

A "reious inconsistent statement is not eidence of the truth ofits contents, een thou(h on the facts of a "articu&ar casecommon sense mi(ht dictate that the "reious statement wasoious&y true or more re&ia&e than the suseuent ora&eidence.

58 >reious consistent statements

/here is much to e said for the iew that to re(ard "reiousconsistent statements as (oin( on&y to the issue of credii&ity isi&&o(ica&.

21 3n(&ish Law Commission,A Consultation Paper7 vidence in Criminal Proceedings7

Hearsay and $elated Topics 5177-8, Consu&tation >a"er +o 1*=, at "ara 2.*1.22 3n(&ish Law Commission, $eport7 vidence in Criminal Proceedings7 Hearsay and

$elated Topics 517798, Law Com +o 2-, at "ara .2*.

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1. /he com"&eity and i&&o(ica&ities of the ru&e and its ece"tionsresu&t in considera&e uncertainty, not &east in some instances in determinin(the ery uestion of whether or not the out!of!court assertion is ein( used fora hearsay "ur"ose. In recent a""e&&ate decisions, #on(


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re&iai&ity' hae een satisfied. 3idence wi&& e admitted under the traditiona&hearsay ece"tions on&y if it, too, satisfies the tests of necessity and re&iai&ity.

=. /he 3n(&ish Law Commission recommended that the (enera&ru&e a(ainst hearsay shou&d e retained, su%ect to s"ecific ece"tions, with a

&imited inc&usionary discretion to admit hearsay eidence not fa&&in( within anyother ece"tion.2 /his recommendation was si(nificant as it mar$ed3n(&andBs de"arture from its traditiona& iew that hearsay eidence not fa&&in(within any of the stated ece"tions must e ec&uded from the courtBsconsideration, re(ard&ess of how re&eant or how re&ia&e the eidence mi(hte, and re(ard&ess of how unfair that mi(ht e to the "arty see$in( to re&y onthe eidence. /he cumu&atie effect of critica& reiews of the hearsay &aw in3n(&and &ed to the enactment of the Crimina& Justice Act 200*, which "roidesan oera&& and com"rehensie reform of the &aw.

7. In 1777 the +ew ea&and Law Commission recommended that

hearsay eidence shou&d e admitted if it was re&ia&e, and if it was necessaryto do so. #earsay eidence wou&d accordin(&y ecome (enera&&y admissi&e,su%ect to the criteria of necessity and re&iai&ity. /hose recommendationswere then enacted in the 3idence Act 200; which came into force on 1Au(ust 2009.

-0. /he Scottish Law Commission confirmed that the traditiona&"reference for direct ora& eidence oer hearsay shou&d e "resered, utsaid that hearsay eidence shou&d e admitted if there were tru&yinsurmounta&e difficu&ties in otainin( the eidence from the statement!ma$er"ersona&&y on oath or affirmation in the "resence of the %ury and su%ect tocross!eamination.2- Many of the Scottish Law CommissionBsrecommendations were suseuent&y incor"orated in the Crimina& Justice5Scot&and8 Act 177-.2;

-1. /he South African Law Commission recommended that hearsayeidence shou&d e admissi&e if the "arty a(ainst whom that eidence was toe adduced a(reed to its admission, or if the "erson u"on whose credii&itythe "roatie a&ue of that eidence de"ended himse&f testified at the"roceedin(s.29 Hurthermore, the South African Law Commissionrecommended that the court shou&d e (ien a discretion to a&&ow hearsay

eidence in certain circumstances.2=

/hese recommendations weresuseuent&y incor"orated into the Law of 3idence Amendment Act 17==,moin( the &aw away from the traditiona& hearsay ru&e.

2 3n(&ish Law Commission Re"ort +o 2- 5cited aoe8, at "aras ;.-* and =.1*;.2- Scottish Law Commission, vidence7 $eport on Hearsay vidence in Criminal

Proceedings 5177-8, Scot Law Com +o 17, at "ara .=.2; /he Crimina& Justice 5Scot&and8 Act 177- was re"ea&ed and sustantia&&y re!enacted

y the Crimina& >rocedure 5Scot&and8 Act 177-.29 South African Law Commission, $eport on the review of the law of evidence 517=;8,

>ro%ect ;, reference numer: IS4+ 0 ;21 11*= , at =.2= South African Law Commission Re"ort, >ro%ect ; 5cited aoe8, at =.

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Ch)!er 6 + The nee3 for reform

-2. /he consu&tation "a"er conc&uded that the "resent hearsay &awshou&d e reformed, ut that unrestricted re&aation of the hearsay ru&eswithout the introduction of adeuate safe(uards mi(ht not e in the interests

of either an accused "erson or of the "u&ic at &ar(e. /he consu&tation "a"er"ro"osed that whi&e irre&eant and unre&ia&e hearsay eidence shou&d eec&uded, re&eant and re&ia&e hearsay eidence shou&d e admitted, whereneed eists for such eidence, at the same time "roidin( a com"rehensi&eand "rinci"&ed a""roach to that admissii&ity.

-*. A&thou(h iews differed on the nature and etent of reformreuired, the ma%ority of those who res"onded to the consu&tation "a"era(reed that there was a need for reform of the &aw of crimina& hearsay in #on(


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5e8 distortion of the triuna&Bs fact findin( "rocess and

5f8 the admissii&ity of mu&ti"&e hearsay.

-9. /he re"ort accordin(&y recommends that any reform of theeistin( &aw of hearsay in #on(


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Re"ected options and proposals

#$e polar e%tremes& no c$ange and free admissibilit

-7. /he consu&tation "a"er recommended that the "o&ar etreme

o"tions of no chan(e or free admissii&ity, or o"tions %ust short of theseetreme "ositions, e re%ected, on the (rounds that the first o"tioninadeuate&y addressed the shortcomin(s in the &aw whi&e the other hadinsufficient safe(uards. Dith one ece"tion, a&& of the comments receiedwere in faour of the ori(ina& recommendation, which is maintained.7Recommen3!"on /8

Best available evidence

;0. /he consu&tation "a"er recommended that the est aai&a&eeidence o"tion e re%ected, as it was im"ractica& for the "arties to com"&y

with, difficu&t for the court to enforce without ecomin( inuisitoria&, containedinsufficient safe(uards, and mi(ht contriute to inefficient use of court time./hose who res"onded to the consu&tation "a"er (enera&&y su""orted thisrecommendation, which is maintained. 7Recommen3!"on 28

Discretion to admit onl defence $earsa

;1. /he consu&tation "a"er recommended that this o"tion ere%ected, as any reforms in the &aw of hearsay shou&d a""&y in the samemanner to oth the "rosecution and defence. /he re"ort maintains thisrecommendation, ut a&so recommends a hi(her standard of "roof when it isthe "rosecution which intends to use the new "ro"osa& for admittin( hearsayeidence. 7Recommen3!"on 48

Broad discretion to admit (t$e Sout$ African model)

;2. /he consu&tation "a"er recommended that the South Africanmode&, which admitted hearsay on an entire&y discretionary asis 'in theinterests of %ustice', e re%ected ecause of concerns with the o"en!endedness of the discretion. /hose who res"onded to the consu&tation "a"er(enera&&y su""ort this "ro"osa&, which the re"ort maintains.

7Recommen3!"on 68

#$e t$ree main options

;*. As mentioned aoe, the consu&tation "a"er iso&ated for furtherconsideration three main o"tions for reform. /hese o"tions, and thereasonin( ehind the "referred o"tion, are as fo&&ows:

1;


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Option * (+t$e ,nglis$ model+)& wide specific e%ceptions wit$ anarrow discretion to admit

;. /he consu&tation "a"er re%ected the 3n(&ish mode& for two mainreasons: its cate(ories of automatic admissii&ity "roided insufficient

assurances of re&iai&ity and the terms of the residua& discretion to admithearsay were too o"en!ended and insufficient&y defined. /hose whores"onded to the consu&tation "a"er (enera&&y su""orted this "ro"osa&, whichis maintained in the re"ort. 7Recommen3!"on 98

Option (+t$e .nited States model+)& codification

;-. /he consu&tation "a"er re%ected the Gnited States mode& ecauseit did not consider that it wou&d e "ossi&e adeuate&y to cater for a&& %ustifia&esituations. /he re"ort maintains this "ro"osa&. 7Recommen3!"on :8

Option / (+t$e 0ew 1ealand model+)& discretion based on necessitand reliabilit

;;. @f a&& the o"tions and mode&s considered y the su!committee,the +ew ea&and Law Commission mode& attracted the most su""ort frommemers. /he stren(th of this mode& is its inc&usionary discretion ased onthe "rinci"&es of necessity and re&iai&ity. /his discretion introduces f&eii&ityinto the &aw, ut with sufficient arriers to fi&ter out undesira&e hearsayeidence. Dith its defined terms and conditions, it "roides a fair de(ree of(uidance to %ud(es in eercisin( the discretion. /he +ew ea&and >ar&iamentenacted these "ro"osa&s in the 3idence Act 200;, which came into force on1 Au(ust 2009.

;9. /he consu&tation "a"er recommended the ado"tion of amodified ersion of the +ew ea&and mode&. As a (enera& ru&e, the re"ortrecommends that, sae for those statutory "roisions and common &aw ru&esres"ectie&y mentioned in "ro"osa&s and - of the Core Scheme, theadmission of hearsay eidence shou&d e ased on a sin(&e statutorydiscretionary "ower to admit hearsay eidence if it is oth necessary andre&ia&e. 5Recommen3!"on ;A8

;=. /he re"ort recommends three modifications to the +ew ea&andmode&. Hirst&y, on&y those common &aw ece"tions "roided in "ro"osa& - ofthe Core Scheme are to e "resered. 7Recommen3!"on ;,8 A numer ofthose res"ondin( to the consu&tation "a"er faoured the retention of more ofthe eistin( common &aw ece"tions than ori(ina&&y "ro"osed and the re"orthas amended this "ro"osa& accordin(&y, oserin( that this wi&& "roide(reater certainty and "redictai&ity to "ractitioners, sae court time and aoidan aru"t chan(e in the &aw.

;7. Second&y, as an u&timate safe(uard a(ainst "ossi&emiscarria(es, in a case where "rosecution hearsay has een admitted, the

%ud(e shou&d hae a discretionary "ower to direct a erdict of acuitta& where

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u"on an oeriew of the "rosecution eidence once adduced, it wou&d eunsafe to conict the accused. 7Recommen3!"on ;C8

90. /hird&y, the +ew ea&and mode& "ro"oses that the %ud(e, inassessin( the re&iai&ity criterion, on&y considers 'circumstances re&atin( to the

statement'. /he re"ort recommends that the amit of &isted factors to econsidered under this criterion e widened to inc&ude the "resence ofsu""ortin( eidence. 7Recommen3!"on ;D8

Ch)!er ; + The )ro)ose3 mo3e% of reform + !he Core Scheme

91. /he "ro"osed mode& of reform in the consu&tation "a"er wasmade u" of a Core Scheme and a series of "ro"osa&s on s"ecia& to"ics. /heCore Scheme is a "ac$a(e of "ro"osa&s aimed at addressin( the most"ressin( shortcomin(s of the "resent &aw. It is a "roduct of the est ideas and"ractices from the "re!eminent common &aw %urisdictions that hae a""&ied thehearsay ru&e in crimina& "roceedin(s. It has een tested a(ainst thesafe(uards considered in Cha"ter 9, and is desi(ned s"ecifica&&y to addressthe shortcomin(s in the eistin( &aw.

92. /he Core Scheme is "resented as a "ac$a(e "ro"osa& ratherthan a series of indiidua& "ro"osa&s. It is intended to e read and understoodho&istica&&y.

9*. Certain words or "hrases used in the Core Scheme were the

su%ect of "articu&ar discussion y the su!committee and are intended to eado"ted in any &e(is&ation. /hese words or "hrases are shown in o&d ita&icsin the fo&&owin( reised ersion of the Core Scheme now "ut forward in there"ort.

1=


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The Core Scheme

1. #earsay means a statement that:

5a8 was made y a "erson 5the dec&arant8 other than a witness58 is offered in eidence at the "roceedin(s to "roe the truth of its

content and5c8 is a written, non!written or ora& communication which was

intended to e an assertion of the matter communicated.

2. #earsay eidence may not e admitted in crimina& "roceedin(s ece"tunder the terms of these "ro"osa&s.

*. Gn&ess otherwise sti"u&ated, a&& "reious common &aw ru&es re&atin( tothe admission of hearsay eidence 5inc&udin( the ru&e ec&udin(

statements containin( im"&ied assertions8 are ao&ished.

. +othin( contained in these "ro"osa&s sha&& affect the continuedo"eration of eistin( statutory "roisions that render hearsay eidenceadmissi&e.

-. /he common &aw ru&es that re&ate to admissii&ity of the fo&&owin(eidence are not affected y these "ro"osa&s:

5a8 admissions, confessions, and statements a(ainst interest madey an accused

58 acts and dec&arations made durin( the course and in furtheranceof a %oint or common enter"rise or cons"iracy

5c8 e"ert o"inion eidence

5d8 eidence admissi&e u"on a""&ication for ai&5e8 eidence admissi&e in sentencin( "roceedin(s, ece"t when

the "rosecution is re&yin( on hearsay eidence to "roe ana((raatin( factor

5f8 "u&ic information5(8 re"utation as to character5h8 re"utation or fami&y tradition

5i8 res gestae and5%8 admissions y a(ents.

;. 5a8 #earsay eidence sha&& e admitted w$ere eac$ part inrelation to w$om t$e evidence is to be adduced agrees toits admission for t$e purposes of t$ose proceedings.

58 An a(reement under this "ro"osa& may with the &eae of thecourt e withdrawn in the "roceedin(s for the "ur"oses of whichit is made.

9. #earsay eidence not admitted under "ro"osa&s , - or ; is admissi&e

on&y where:

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5a8 t$e declarant is identified to t$e court's satisfaction58 ora& eidence (ien in the "roceedin(s y the dec&arant wou&d

e admissi&e of that matter5c8 t$e conditions of

(i) necessit and

(ii) t$res$old reliabilit sti"u&ated in "ro"osa&s = to 12 e&ow are satisfied and

5d8 t$e court is satisfied t$at t$e probative value of t$eevidence is greater t$an an pre"udicial effect it ma $aveon an part to t$e proceedings.

=. /he condition of necessity wi&& e satisfied on&y:

5a8 where the dec&arant is dead58 w$ere t$e declarant is unfit to be a witness2 eit$er in person

or in an ot$er competent manner2 at t$e proceedingsbecause of $is age or p$sical or mental condition

5c8 where the dec&arant is outside #on(


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observation of t$e declarant3and

(e) w$et$er t$e statement is supported b ot$er admissibleevidence4

1*. Ru&es of court are to e made that a "arty (ie notice of his intention toadduce hearsay eidence under "ro"osa& 9 that eidence is to etreated as admissi&e if notice has een "ro"er&y sered, and nocounter notice has een sered that the fai&ure to (ie notice meansthat the eidence wi&& not e admitted sae with the courtBs &eae thatwhere &eae is (ien, the triuna& of fact may draw inferences, ifa""ro"riate, from the fai&ure to (ie notice and that the fai&ure to (ienotice may attract costs.

1. Dhere in any "roceedin(s hearsay eidence is admitted y irtue ofthese "ro"osa&s:

5a8 any eidence which, if the dec&arant had (ien eidence inconnection with the su%ect matter of the statement, wou&d haeeen admissi&e as re&eant to his credii&ity as a witness sha&&e admissi&e for that "ur"ose in those "roceedin(s and

58 eidence tendin( to "roe that the dec&arant had made astatement inconsistent with the admitted statement sha&& eadmissi&e for the "ur"ose of showin( that the dec&arant hascontradicted himse&f.

1-. (a) At t$e conclusion of t$e case for t$e prosecution2 or at an

time t$ereafter2 in an proceedings in w$ic$ $earsaevidence is admitted under proposal 5 of t$e Core Sc$eme2t$e court s$all direct t$e ac6uittal of an accused againstw$om suc$ evidence $as been admitted under t$e terms oft$ese proposals w$ere t$e "udge considers t$at2 taingaccount of t$e factors listed at proposal *7(b)2 andnotwit$standing t$e fact t$at t$ere is a prima facie caseagainst t$e accused2 it would be unsafe to convict t$eaccused -6 n3 -98 and

the "roatie a&ue of the eidence must e (reater than any"re%udicia& effect it may hae on any "arty efore it can eadmitted under the discretionary "ower 7Recommen3!"on -:8.

=*. /he re"ort recommends that this discretionary "ower to admit

shou&d e the main ehic&e y which hearsay eidence is to e admitted incrimina& "roceedin(s. 7Recommen3!"on --8 As to the uestion of whatstandard of "roof shou&d a""&y to hearsay ece"tions, the ori(ina& "ro"osa& inthe consu&tation "a"er was that this shou&d e on the a&ance of "roai&itiesand the same standard shou&d a""&y to oth "rosecution and defence. /here"ort has reised the recommendation in the &i(ht of the res"onses to theconsu&tation "a"er. /he "arty a""&yin( to admit hearsay eidence under thediscretionary "ower in "ro"osa& 9 wou&d ear the urden of "roin( thecondition of necessity to the reuired standard of "roof, which wi&& e eyondreasona&e dout if the "arty a""&yin( is the "rosecution, and a&ance of"roai&ities if the "arty a""&yin( is the defence. 7Recommen3!"on /=8

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=. /he necessity criterion wou&d on&y e satisfied where thedec&arant is (enuine&y una&e to "roide testimony of the hearsay eidenceand not mere&y unwi&&in( to do so. /he condition wou&d therefore on&y esatisfied if the dec&arant

5a8 is dead

58 is "hysica&&y or menta&&y unfit to e a witness

5c8 is outside #on(


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reuirin( the tria& %ud(e, at the conc&usion of the "rosecution)s case or at anytime thereafter, to direct a erdict of acuitta& of an accused a(ainst whomhearsay eidence has een admitted under the discretionary "ower in"ro"osa& 9, notwithstandin( the fact that there is a prima facie case a(ainstthe accused, where the %ud(e considers it wou&d e unsafe to conict the

accused. In reachin( his decision to eercise this "ower, the %ud(e must haere(ard to the nature of the "roceedin(s, the nature of the hearsay eidence,the "roatie a&ue of the hearsay eidence, the im"ortance of such eidenceto the case a(ainst the accused and any "re%udice to an accused which mayeentuate from the admission of the hearsay eidence. 7"ro"osa& 1- andRecommen3!"on /-8

Ch)!er *= + S)ec"% !o)"cs

Baning2 business and computer records

ankers9 records

=7. As re(ards an$in( records, the re"ort recommends that theece"tion to the hearsay ru&e in res"ect of an$ersB records e retained utthat its im"&ementation shou&d form "art of the (enera& ece"tion in re(ard tothe "roduction of records as a""ears in Recommendations *, *- and *;.7Recommen3!"on //8

usiness and computer records

70. As re(ards usiness and com"uter records, the re"ortrecommends that the ece"tions in res"ect of usiness records and com"uterrecords e retained, with the "rimary aim ein( to sim"&ify the "roduction of a&&records, with eistin( &e(is&ation re&atin( to non!com"uterised records ein(re"&aced y a sin(&e section that a""&ies to a&& documents irres"ectie of theiraryin( nature. 7Recommen3!"on /28

71. In re&ation to com"uterised records, the re"ort recommends that:518 se"arate re(imes shou&d a""&y to data stored or (enerated in the course ofusiness and that stored or (enerated for non!usiness "ur"oses and 528

s"ecific consideration shou&d e (ien to, inter alia, the im"&ications arisin(from the stora(e of data outside of #on(


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forma&ities or "rocedures for adducin( such eidence in the tria&"rocess. 7Recommen3!"on /98

!rior statements of witnesses

Prior inconsistent statements

7*. As re(ards "rior inconsistent statements, there were diidediews e"ressed in re&ation to the recommendation in the consu&tation "a"er./hese iews hae een considered carefu&&y ut the re"ort maintains theori(ina& recommendation that "rior inconsistent statements of witnessesshou&d continue 5as at "resent8 to e inadmissi&e for the truth of their content.#oweer, this shou&d e reconsidered if and when &aw enforcement a(enciesado"t a (enera& "ractice of recordin( witness statements y re&ia&e audio!isua& means. 7Recommen3!"on /:8

Prior consistent statements

7. In res"ect of "rior consistent statements, the re"ortrecommends that:

where "rior consistent statements are admitted under eistin(common &aw ece"tions 5e( "rior identification, recentcom"&aint, reuttin( recent farication8, they shou&d a&so eadmitted for their sustantie truth 7Recommen3!"on /;A8

the "rior identification ece"tion shou&d e etended 5in addition to"ersons8 to o%ects and "&aces (enera&&y 7Recommen3!"on/;C8riorstatements used y witnesses to refresh their memory shou&d not e admitted

for their sustantie truth. 7Recommen3!"on /;,8 In addition, there weresome su((estions in res"onse to the consu&tation "a"er that the recentcom"&aint ece"tion, which current&y on&y a""&ies in re&ation to seua&offences, shou&d e etended to a&& ictim offences. /he re"ort conc&udes thatthe uestion of a "ossi&e (enera& etension of the recent com"&aintece"tion reuires a se"arate study. 7Recommen3!"on /;D8

7-. In &iera&isin( the admissii&ity &aws (oernin( "rior statements,many &aw reformers hae e"ressed concern that if %uries are "roided with"rior written statements they may attach (reater wei(ht in their de&ierations tosuch statements than to the ora& eidence "resented y the witness in court.Indeed, in com"&e and &en(thy cases, it is &i$e&y that %ury memers may for(etthe witnessBs ora& eidence and re&y ec&usie&y on the written "rior statement

2;


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as that witnessBs eidence. Hor these reasons, the re"ort recommends theinc&usion of an e"ress "roision that the "hysica& record of an admitted "riorstatement shou&d e remoed from the %uryBs "ossession durin( theirde&ierations, un&ess the %ud(e finds that the %ury wou&d e sustantia&&yassisted y receiin( and reiewin( the "hysica& record. 7Recommen3!"on

2=8

!re-trial procedures

7;. /here was concern that, with the ado"tion of the Core Scheme,dis"utes concernin( the admission of hearsay mi(ht de&ay and "ro&on( tria&"roceedin(s. In #on(


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"roides sufficient safe(uards to "reent miscarria(es of %ustice and unsafeconictions in the ast ma%ority of cases. /o hae safe(uards which cou&d"reent miscarria(es in a&& cases wou&d e, if not im"ossi&e to achiee, anunrea&istica&&y hi(h standard to attem"t to achiee. Dith this o%ectie in mind,the re"ort has tried to inc&ude sufficient safe(uards in the Core Scheme to

"reent miscarria(es of %ustice and unsafe conictions. Gnder the CoreScheme, safe(uards eist oth when the eidence is admitted and after thec&ose of the "rosecutionBs case. /he safe(uards which a""&y at the time ofadmission of the eidence are intended to ensure that on&y hearsay eidencewith reasona&e assurances as to its re&iai&ity 5and no ia&e means of ein(admitted as direct ora& testimony8 wi&& e admitted. In a""&yin( the thresho&dre&iai&ity test, %ud(es must consider the de(ree to which, if at a&&, a &ist offactors is &i$e&y in the "articu&ar instance to affect re&iai&ity. At the c&ose of the"rosecution)s case, there is the u&timate safe(uard of the %ud(eBs "ower todirect a erdict of acuitta& hain( considered the "rosecutionBs case as awho&e. In eercisin( this discretionary "ower, the %ud(e wi&& no dout hae in

mind the ris$ of a wron(fu& coniction. Seera& im"ortant cases decided afterthe "u&ication of the consu&tation "a"er hae fortified the su!committee)siews in the consu&tation "a"er on the issue of human ri(hts com"&iance.

report on hearsay in criminal proceedings

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