Let say, supposed a fact in issue in criminal proceedings is whether a man, H, shot his wife, W. X was an eye-witnessed to the shooting and later said to Y, "H shot W." Y repeated X's statement to Z and this two repeated statements would be considered as a hearsay.
If X is called a witness to the proceedings, he, may give direct testimony of the shooting as he has the personal or first-hand knowledge about the shooting. For the same reasons, neither Y nor Z, if they were called as a witness, would not be able to recount the shooting unless it comes within the one of the exceptions to the rule of hearsay.
In other word, hearsay is information gathered by one person from another person concerning some event, condition, or thing of which the first person had no direct experience nor can it be adequately substantiated. As a legal term, hearsay can also have the narrower meaning of the use of such information as evidence to prove the truth of the matter asserted.
Hearsay evidence under the common law consists of statements made by a person who has not been called as a witness in the instant proceedings or who has been called as a witness but made a statement other than whilst giving evidence with a vies to show the court that the contents of the statements are true.
In Teper v R (1952), Lord Norman observed:
"The rule against the insertion of hearsay evidence is fundamental. It is not the best evidence and it is not delivered on oath. The truthfulness and accuracy of the person whose words are spoken by another witness cannot be tested by cross-examination, and the light which his demeanour would throw on his testimony is lost."
- Res Gestae
- Dying declaration
- Previous depositions of witness who cannot be called as witness
- Entries in books of accounts kept in ordinary course of business
- Section 60, Section 91 and section 92 of the Evidence Act 1950.
The rule does not apply where the purpose of adducing the evidence is to show not the truth of what was said but certain statements were made.
In Subramaniam v PP (1956), it was an appeal from the Supreme Court of the Federation of Malaya to the Privy Council. The facts were that the defendant was charged with the unlawful possession of firearms. His defence was that he was acting under duress. he wished to repeat the threats that had been made to him of what would happen if he refused to carry the weapon. The trial judge ruled that this evidence could not be given as it contravened the hearsay rule. Mr De Silva in the Privy Council observed :
"Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be a hearsay. It is a hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not a hearsay and s admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made."
There are two main things to consider in deciding whether a statement in a proceedings is caught by the hearsay rule.
- Whether it is an out f court assertion, which may be a statement or a gesture which is tendered in court either as oral evidence or documentary evidence containing statement made by a person out of court.
- Determining the purpose of the statement being tendered in the court. If the statement is tendered to establish the truth of its contents, it is a then considered as a hearsay. If the statement is to establish some other fact, then it is not a hearsay.
In PP v Ng Lai Huat & Ors (1990), the utterance of one of the five accused persons to the police officer who negotiated with them and who sought to give evidence of these utterances at the trial as to the ransom which they required were held to be hearsay because they were tendered to prove the truth of those utterances i.e. a ransom had been demanded by all of them.
The rationale behind inadmissibility of hearsay evidence
- It is not the best evidence as it is merely second hand evidence or inferior evidence
- It is desirable in the interest of justice to get the person, whose statement is relied upon, into court for his examination in the regular way in order that any possible source of inaccuracy an untrustworthiness can be checked by the process of cross-examination
- It is not given an oath
- It cannot be tested by cross-examination
- The probative value may be very slightly
- It's admission may open the door to fraud and concoction
- Its admission will allow weaker evidence to replace the stronger evidence
- There is always a danger of exaggeration, misrepresentation and suppression of truth.
However, the exception to hearsay evidence can be looked upon in the Section 59 and Section 60 of the Evidence Act 1950 even though these sections did not define hearsay evidence specifically.
Prepared by:
Syarifah Dewi Siti Fatimah Bt Syed Ahmad Fahmi Wafa
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