Hearsay Evidence

by Mr Roshan Varma Santokhee

Senior State Counsel

Objectives of today’s lecture Appreciate the rationale behind the

exclusionary rule of hearsay

Understand the basis of the statutory andcommon law exceptions to the rule

Apply the law to factual scenarios

Hearsay-Definition An out-of-court statement that is being adduced in

court as evidence of a matter stated in the statement

A document which is produced in court for thepurpose of establishing the truth of its contents whenthe maker thereof is not a party to the proceedings(Runnoo D v The State [2015 SCJ 70])

E.g When A tells a court what b has told him, thatevidence is called hearsay.

Tendered to prove the truth of its contents The prior statement must be tendered as evidence of the truth of its

contents.

If tendered for any other relevant purpose

Not hearsay

Admissible as original/circumstantial evidence

Evidence must be relevant

To prove a fact in issue

Tendered to prove the truth of its contents (cont…)Example:(i) In case of defamation, did A say to X that Y was a

thief, that Y stole something from his employer.

(ii) Evidence by A of what B said or wrote out of courtis inadmissible as evidence to prove the truth ofwhat b said or wrote. This example is a rule of lawand the judge has no discretion to admit hearsayevidence.

Rationale behind the rule Section 10(2)(e) of our Constitution provides that :

“(2) Every person who is charged with a criminal offence – 3 (e)shall be afforded facilities to examine, in person or by his legalrepresentative, the witnesses called by the prosecution before anycourt ….”

Hence, evidence which is not given on oath and not the subject matterof cross-examination is likely to be unreliable.

The State v Dzitse R M K [2013 SCJ 402]:“the maker would not be available to be cross-examined by the otherparty. It is hardly contested that the cross-examination of witnessesis at the very heart of an adversarial system like ours on theunderstanding that an accused should be allowed to face personsadducing evidence adverse to him and to test their evidence as wellas their credibility by putting questions to them.”

Rationale behind the rule (cont…) Teper v R [1952] AC 480,486:

“The rule against the admission of hearsay evidence is fundamental. Itis not the best evidence and it is not delivered on oath. The truthfulnessand accuracy of the witness whose words are spoken by anotherperson cannot be tested by cross-examination, and the light which hisdemeanour would throw upon his testimony is lost.”

The rule applies equally to:

(i) Oral statements

(ii) Statements

(iii) Assertions by conduct

What is a statement? Any representation of fact or opinion, made by a

person by whatever means

Includes a representation made in sketch, photofit orother pictorial format

A matter stated is one to which this chapter applies if(and only if) the purpose, or one of the purposes, of theperson making the statement appears to the court tohave caused another person to act or machine tooperate on the basis that the matter is as stated

Examples of hearsay Budlawon [1987 MR 50]

Bhinda v State [1993 SCJ 83]

Cassim v R [1988 MR 49]

E.g of police officer 1

E.g of A and B, A having pleaded guilty

E.g of robbery case

E.g of conduct case

Non-Hearsay Statements

Evidence to show certain facts other than the truthof contents

“Original” evidence is evidence of a statementadduced not to prove that the statement is true butto prove that it was made

State v Parvatkar [1997 SCJ 89]

Ratten v R [1972 AC 378]

Hearsay Exceptions Hearsay is only admissible if:

a) Statutory exceptionsb) Common law exceptionsc) Parties agreed) In the interest of Justice

Statutory Exceptions to Hearsay Section 181 Courts Act:

“In all proceedings before any court ….. a certificateunder the hand – [a] of any officer [b] ……………..shall be sufficient evidence of the fact therein statedwithout proof of the handwriting of such officerunless the court …. decides that the attendance of theofficer is necessary.”

Statutory Exceptions(cont…) 7 elements to be considered under section 181 Courts

Act:

[1]. Who is the person to whom the law applies?

[2]. The nature of the document under consideration

[3]. The manner in which the document has been issued

[4]. Whether there is a need to call the maker

[5]. What does the certificate establish?

[6]. Who decides that the officer has to attend court?

[7]. On what ground can the maker be required to attend court?

Statutory Exceptions (cont…) Aumeer v R 1975:

“It was held that S. 181 includes a police medical officer and asper the statement, he was an assistant police medical officer.Thus, his statement was inadmissible.”

DPP v Rudolphe 1973:

“Certificates which are made evidence by S. 181 of the CourtsAct need not contain any express formula to be admissible, ifthe evidence makes it clear that they in fact come from one ofthe officers authorised to issue such certificates.”

Statutory Exceptions (cont…) Section 45 of the Bank of Mauritius Act 2004:

“In any proceedings in which the genuineness of a currencynote or coin purporting to have been issued by the bank is inquestion, a certificate under the hand of a Deputy Governor tothe effect that such currency note or coin is spurious orgenuine shall be received in all courts as conclusive evidenceof the spuriousness or genuineness, as the case may be, of suchpurported currency note or coin. (2) The deputy governorshall not be examined or cross-examined with respect to anysuch certificate.”

Common Law Exceptions The State v Dzitse R M K [2013 SCJ 402]:

At common law, exceptions to the hearsay rule havealways existed and the categories under which they fallare now well established. These include, for instance,dying declarations and statements forming part of the resgestae. In each of the established exceptions, there arecompelling reasons why the prosecution is allowed toadduce evidence in order to establish the truth thereofwithout the maker being called and subjected to cross-examination.

Dying declarations

The State v Dzitse R M K [2013 SCJ 402]:“Dying declarations are admitted because the personmaking it is said to be in a settled expectation of deathwhere all hope of this world with attending motivesfor lying is gone”

State v Charles Jean Desire Huberto [2012 SCJ 407]:“The basic principle is that when a person is about to die, everymotive to lie is silenced and the mind acts under the mostpowerful consideration to tell the truth, that is to say impendingdeath. Dying declarations are therefore admitted as an exceptionto the hearsay rule with the resulting effect that an accused partyis precluded from cross-examining his accuser.”

Dying Declarations (cont…)Two reasons are usually given for admitting thisevidence as an exception to the hearsay rule:(i) There is, in these circumstances, a sanction similar

to an oath, namely the knowledge on the part ofthe dying man of his impending death. Thus, it isthought unlikely that a man, knowing that he isabout to die, would make a false accusation;

(ii) It is in the interests of justice that such evidenceshould be given so “that a person implicated in akilling should be obliged to meet in Court thedying declaration of the victim.

Dying Declarations (cont…)o In order to be admissible the statement must be

made by a competent witness and relate to the causeof the declarant’s death.

o A statement made by a person who expects to die isadmissible where his death is the subject of thecharge and the circumstances of the death thesubject of the dying declaration e.g murder,manslaughter and wounds and blows as well.

o ‘Settled hopeless expectation of death’ i.e if anyvestige of hope remains, the statement isinadmissible (not necessarily immediately butwithin a short time)

Dying Declarations (cont…)o The declaration MUST be complete or at least

substantially so; a half-finished statement willtherefore be excluded.

o E.g Waugh v R [1950 AC 203]

o Analogy between Section 23 of Criminal Justice Act1988 and Section 47 of the DIC (CriminalJurisdiction) Act

o Records by deceased persons in course of duties ReDzitse

Res Gestae

The statement must be bound up with the actor event in order to form part of the res gestae;the principle is that certain hearsay statementsare admissible in evidence because they arepart of the res gestae or story. No possibility offabrication or concoction

The statement accompanying and explainingan act must be relevant to an issue in the case

Res Gestae

Spontaneous exclamations made by a victim ofan offence or by a bystander

The statement must be spontaneous orcontemporaneous to the event/ state of mind oremotion in order to be admissible. Thestatement of a person in which he relates hiscontemporaneous bodily feelings areadmissible to prove the feelings, but not theircause.

Res Gestae (cont…) Rajaratnam v The State [2001 SCJ 234]

Andrews [1987] AC 281

E.g of Identification parade case

E.g of Bystander case

Res Gestae (cont…) Nicolas (1846) 2 Car & Kir 246

Gloster (1888) 16 Cox CC 471

Black (1922) 16 Cr App R 118

Admission and Confession

Police v Bholah Kaylasing [2014 PL3 21]

Ramdass K. v The State [2009 SCJ 324]

Recent complaint in sexual offence cases

At common law recent complaint evidence is admissibleonly in cases of alleged sexual offences and the complaint isadmitted only to show consistency and to rebut consent.

R v O [2006] 2 Cr App. R

Multiple Hearsay

o Maher v DPP [2006] EWHC 1271

Summary As shown above, the Law now preserves rule

against hearsay but extends exceptions

Allows exceptions for written and oral hearsaye.g Section 47 of the District and IntermediateCourts (Criminal Jurisdiction) Act 1888

Thank you