 |
Hong Kong Law Reform Commission |
Chapter
1
Brief
history of the hearsay rule
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1.1 The
rule against hearsay is a rule of admissibility historically applied by common
law courts to all civil and criminal proceedings. The rule excludes from the trial evidence of
statements made outside the courtroom where it is proposed to use them at trial
to prove the facts narrated or asserted in them. Thus, the statement from a police
witness, "The victim told me at the scene that the car that struck him was
green", would be inadmissible to prove that the assailant's car was in
fact green.
1.2 The
hearsay rule is an exception to the general rule that all relevant evidence is
admissible. As a common law rule
that has existed for hundreds of years, it is integral to an adversarial system
that places a premium on proof by live testimony from witnesses. While significant reforms of the rule
were made in the context of civil proceedings in 1999, the law of hearsay has
remained relatively constant in
1.3 The
rule against hearsay developed over many years. According to "Kenny's Outlines of Criminal Law", the need to exclude hearsay
evidence was first recognised in
"No
aspect of the hearsay rule seems free from doubt and controversy, least of all
its history. Legal historians are
divided between those who ascribe the development of the rule predominantly to
distrust of the capacity of the jury to evaluate it, and those who ascribe it
predominantly to the unfairness of depriving a party of the opportunity to
cross-examine the witness."[2]
1.4 Though
the possible dangers of hearsay evidence were first recognised in
1.5 In
1664, Lord Jeffreys CJ ruled that what a witness
heard from a woman (who was not herself competent to give evidence) could not
be given in evidence:
"If
she were here herself, if she did say it, and would not swear to it, we could
not hear her; how then can her saying be evidence before us?"[6]
1.6 By
the beginning of the nineteenth century, the hearsay rule had become well
established, and the emphasis shifted to definition of its range and the
creation of exceptions to the rule.[7] In this second phase of development of
the hearsay rule, two alternative approaches competed with each other: one was
that all hearsay should be excluded, subject to inclusionary
exceptions; while the other was that relevant evidence should be admitted,
subject to exclusionary exceptions.[8] The former view prevailed and led to the
establishment of the present hearsay rule and the creation of the various
common law exceptions to the rule.
1.7 The
English courts have been reluctant to create new exceptions to the rule,
preferring the task to be done by the legislature. Lord Reid in the House of Lords case of Myers v DPP explained why it was
necessary to leave reform for legislative intervention:
"But
there are limits to what we can or should do. If we are to extend the law it must be
by the development and application of fundamental principles. We cannot introduce arbitrary conditions
or limitations: that must be left to legislation. And if we do in effect change the law,
we ought in my opinion only to do that in cases where our decision will produce
finality or certainty. If we
disregard technicalities in this case and seek to apply principle and common
sense, there are a number of other parts of the existing law of hearsay susceptible
of similar treatment, and we shall probably have a series of appeals in cases
where the existing technical limitations produced an unjust result. If we are to give a wide interpretation
to our judicial functions questions of policy cannot be wholly excluded, and it
seems to me to be against public policy to produce uncertainty. The only satisfactory solution is by
legislation following on a wide survey of the whole field, and I think that
such a survey is overdue. A policy
of make do and mend is no longer adequate."[9]
1.8 Notwithstanding
the strong dissenting opinions of Lords Pearce and Donovan in Myers, both of whom strongly favoured
gradual judicial development of the rule,
1.9 While
the Court of Final Appeal has yet to decide the propriety of judicial reforms,
the following obiter dictum in Wong Wai-man v
HKSAR indicates that the view
is taken that the proper path for reform is legislative:
"It is true that it was only by a majority
of
1.10 To
date, the hearsay rule in respect of criminal proceedings has seen no
comprehensive legislative review in