hearsay essay

Página 1

Hearsay Essay

discuss hearsay and its exception

Meaning of hearsay

• define by Sir Rupert Cross - " Assertion other than one made by person while giving oral evidence in proceedings is inadmissible"

when a statement is caught by hearsay rule? relevancy?

• if an out of court assertion, being tendered in court either oral evidence or witness is tendering a doc containing statement made by a person out court

• then determine purpose of such out of court assertion tendered our repeated in court

• Subramanm - said if statement tendered to establish truth of its content, it is hearsay

• if statement tendered to establish fact like, to show the fact that statement was made, not hearsay, is original evidence

• of course for such statement to be original evidence it must be in issue or relevant

• especially emphasized in R v Blastland where court, refused admit statement made by Mark on Blastland state of mind cause it is not in issue and irrelevant

It has to be Direct

• s60 EA provide oral evidence must be direct

• s60 reflect best evidence rule in regard of oral evidence and relate to rule against hearsay

• case eg, tekikal sdn bhd v Auto Parking sdn bhd , Poh Siew Cheng v American International Assurance Co. Ltd.

case of hearsay where oral statements tendered for the truth of its content

• subramaniam v PP - defendant claimed acting under duress as he captured by terrorists ,trial judge rule hearsay, privy council believe him as he would suffer instant death if disobey

• PP v Ng Lai Huat - utterance from accused to police officer, held hearsay as tendered to prove the truth of those utterances

• Sparks v R - the young girl, complainant who complaint to her mum that she was assaulted by a colored boy, hearsay, same reason as Ng Lai Huat

• Robert Boon Teck Chuah - police received order from superior to arrest was not hearsay and admissible

• however in Alcontara Ambross Anthony v PP - it is hearsay what the informants had told amounted to hearsay

statement in documents tendered for truth of its content,

• Myers v DPP - microfilms from cards filled in by worker that show cylinder block number matched accused car was hearsay and inadmissible

• Patel v Comptroller of customs, D was charged false declaration when the coriander seed was infact came from Morrocco not India, court held label on seed sack "product of morroco" not admissible

• Sim Tiew Bee , court held gunny sack label "to Sim Tiew Bee, Sibu" inadmissible to prove that she is the consignee of goods WITHOUT calling the maker

assertions by signs and gestures where tendered as evidence of facts asserted

Reason of all these

• in Teper, Lord Normand explained that hearsay is not the best evidence, and not deliver on oath

• truthfulness of such words repeated by another witness cannot be tested and cross-examine

so what is assertion/statement?

• generally utterances or conduct, which object is saying that something is true

• however when assertions are neither true or false, it is implied assertions

eg of implied assertions: greetings, an instructions, question, an exclamation

• if truth value cannot be assigned on particular utterances, then it cannot be repeated for purpose of the truth of its contents

• however in Kearly - said hearsay applies to implied assertions too, as prosecution may rely on it for underlying assumption on the part of the maker, eg when there is a greeting assertion, it can be assume that person was physically there or on the phone

• in Teper, the assertion was inadmissible as it was tendered for underlying assumption to support the D defence of alii

• in Wright v Doe D Tatham - letters to John Marsden inadmissible as it was to prove underlying assumption that John was sane

Noted that

• in England the criminal justice act overruled Kearley

•implied assertions will not caught by rule against hearsay

• in Malaysia shouldn't follow Kearley and Wright v Doe

• as Kearley and Wright v Doe has been overturned, the decisions were wrong

hearsay rule that doesn't apply

• subramaniam - statement not tendered for truth of its content, but for fact that statement was made

• R v Mawaz Khan - statement tendered not to show truth of its content or fact asserted to show that they are false

• R v Dodson - tapes/films from security camera that capture the scene of robbery

• R v Spiby - computer generated documents

• Castle v Cross - breathalizer recording of blood alcohol level