 |
Hong Kong Law Reform Commission |
Chapter
4
Cardinal
principles and the
shortcomings
of the present law
__________________________________________
4.1 The
Hearsay Sub-committee’s task of considering and making recommendations for
reform of the hearsay rule involved, as an initial exercise, consideration of
the rule itself in its implementation, as well as the application of the
exceptions to it and, thus, whether its implementation resulted in any
shortcomings. Recommendations for
reform would only be necessary were shortcomings in the rule established.
Widespread criticism of
the common law position
4.2 The experience of other
jurisdictions with similar regimes is that the existing hearsay rule with its
haphazardly developed exceptions has many anomalous consequences, resulting in
probative, reliable evidence being excluded from consideration by the tribunal
with the real potential for injustice to the public interest, including the
interest of the accused. Criticisms
are widespread and longstanding, emanating from judges, academic writers and
law reform bodies:
1. Cross & Tapper[1]:
“The
hearsay rule has often been regarded as one of the most complex and most
confusing of the exclusionary rules of evidence. Lord Reid said that it was ‘difficult to
make any general statement about the law of hearsay which is entirely accurate.’ Both its definition, and the ambit of
exceptions to it were unclear. It
led to the exclusion of much reliable evidence, and, on that account,
exceptions were created ad hoc, often without full consideration of their
implications."
2. The
Auld Report[2]:
“ 95 The rule against hearsay in criminal
proceedings, like many other past and present rules of inadmissibility in that
jurisdiction, has its origin in the late 18th and early 19th centuries when the
cards at trial were so stacked against defendants that judges felt the need to
even the odds. .... In civil matters, it has been abolished completely. .... On one view, it tends to exclude weak
evidence and to ensure that a defendant may question his accusers, thus
preserving the oral character of the English trial. On the other, it is capable of being too
restrictive so as to work injustice either way, and, in its artificiality,
interferes with the smooth running of the trial process.
96 It is common ground that the present law
is unsatisfactory and needs reform.
It is complicated, unprincipled and arbitrary in the application of a
number of the many exceptions. It
can exclude cogent and let in weak evidence. It wastes court time in requiring it to
receive oral evidence when written evidence would do. And it confuses witnesses and prevents
them from giving their accounts in their own way.
103 …
The need and form of reform of the rule against hearsay should be approached
from the fundamental standpoints that rules of evidence should facilitate
rather than obstruct the search for truth and should simplify rather than
complicate the trial process.
Inherent in a search for truth is fairness to the defendant and his
protection from wrongful conviction - but it should not be forgotten that the
present rule can operate unfairly against a defendant as well as the
prosecution."
3. R v
Kearley[3] per Lord Griffiths:
“In my
view the criminal law of evidence should be developed along common sense lines
readily comprehensible to the men and women who comprise the jury, and bear the
responsibility for the major decisions in criminal cases. I believe that most laymen if told that
the criminal law of evidence forbade them even to consider such evidence as we
are debating in this appeal would reply ‘Then the law is an ass’" … The hearsay rule was created by our
judicial predecessors and if we find that it no longer serves to do justice in
certain conditions then the judges of today should accept the responsibility of
reviewing and adapting the rules of evidence to serve present society."
- Lamer CJ in R v Smith[4]
:
“… the
approach that excludes hearsay evidence, even when highly probative, out of the
fear the trier of fact will not understand how to deal with such evidence, is
no longer appropriate. In my
opinion, hearsay evidence of statements made by persons who are not available
to give evidence at trial ought generally to be admissible, where the
circumstances under which the statements were made satisfied the criteria of
necessity and reliability set out in Khan and subject to the residual
discretion of the trial judge to exclude the evidence when its probative value
is slight and undue prejudice might result to the accused."
- Professor Zuckerman[5]:
“The
hearsay rule fulfils neither of these conditions [conformity with the common
sense, and secondly, uncertainty in application] ...
The rule is at odds with common sense and as a result our judges have
had to resort to numerous ploys to arrest the more extreme excesses of its
operation. These efforts have made
the rule more flexible and have rightly made admissibility more dependent on
probative force than on conformity to the legal definition, but this only
helps, in turn, to call into question the benefits to be gained from the
continued existence of the rule."
- Bruce & McCoy[6]:
“The
rule has attracted a good measure of criticism. Probably, the strongest criticism of the
law is that the rule operates so as to exclude evidence where a witness who can
speak directly about relevant events is unavailable, but that witness has
either made a record or has told another person of those events (the latter
being available to testify) in circumstances where one would, in ordinary life,
regard the recording or relating of the event to be reliable. The rule has been described by Lord Reid
as 'absurdly technical'. Diplock LJ
once confessed the rule has ' little to do with common sense'. Another serious criticism is that the
rule applies with equal force to both prosecution and the defence and on the
basis that it is presently applied may exclude evidence upon which the accused
may rely to establish his innocence."
- Preface to the New Zealand Law Commission report[7]:
“… in
its present form the law of evidence is a patchwork of disparate elements that
have never been co-ordinated and whose effect is frequently disputed by
experts. Problems resulting from
ancient rules of the judge-made common law, themselves often neither precise nor
readily accessible, have been met by ad hoc statutory reforms which have in
turn presented difficulties of construction and of scope."
8. The English Law Commission
summarised the criticisms directed at the rule as follows:
"There
is no unifying principle behind the rule and this gives rise to anomalies and
confusion. Court time is wasted
because of the lack of clarity and complicated nature of the rule. Cogent evidence may be kept from the
court, however much it may exonerate or incriminate the accused, because the
fact-finders are not trusted to treat untested evidence with the caution it
deserves, but if hearsay is admitted there is nothing to prevent them from
committing on it alone. Witnesses
may be put off by interruptions in the course of their oral evidence. Whether evidence will be let in or not
is unpredictable because of the reliance on judicial discretion."[8]
9. The
Scottish Law Commission identified
"…
two principal disadvantages. First
it may result in injustice by depriving the court of information which would be
of value in ascertaining the truth…[T]he rule offends against the general
principle that all relevant evidence should be admissible. Secondly, the technicality of the rule
offends against the general principle that the law should be as clear and simple
as possible.
We note
that the evidence which is excluded by the rule not only is relevant, but also
may well be reliable. It seems to
us impossible to assert as a general proposition that hearsay evidence is
necessarily less reliable than direct evidence.[9]"
10. The
"The
[rule against hearsay] excludes much evidence that is helpful to the truth
determining process; it fails to identify that hearsay which should be excluded
to protect the fundamental rights of a criminal defendant; it creates
unnecessary costs, as parties must arrange for the testimony of witnesses in
situations where secondary evidence would suffice; it confuses judges, lawyers,
and students; and it creates contempt for evidentiary law, because it fails to
reflect values for which most people have respect, and so often it is ignored
in practice … [H]earsay law, where it exists, should be radically transformed
and liberalised."
4.3 Despite
all these comments and this history, the suggestion was made at an early stage
of our deliberations that there was in
4.4 The
suggestion that the hearsay rule provides no difficulties in Hong Kong is to
suggest that the longstanding difficulties of the hearsay rule recognised throughout
the common law world are, for some undefined reason, managed here with an ease
that the rest of the world finds difficult to achieve, and that the
illogicalities to which we will later refer in detail in this report are of no significance
in Hong Kong. No reason is put
forward for this ability supposedly unique to
4.5 The
problem with hearsay is not only a problem of understanding the basic rules and
their application. The rule and its
exceptions are well recognised as unusually complex. The difficulties which have resulted in
reform across the common law world have not been driven solely, or even mainly,
by questions of comprehension.
There are more fundamental problems to which this paper refers in
detail; and which apply to trials at all levels. The further suggestion that there is no
need for reform because no one can pinpoint an example of a miscarriage of
justice in
4.6 Concerns were also expressed that the object of this reform exercise may be to secure the conviction of more people; or to strengthen the hand of prosecutors. We are in no doubt that this was not what triggered the reference by the Commission. Our terms of reference are to ascertain whether the law was in need of reform and, if so, what reform should be effected in the interests both of defendants, and of the proper prosecution of cases, where such reform is demanded and is justifiable and is hedged about by proper safeguards. It should be borne in mind that one of the key motivations for reform in all the common law jurisdictions which have examined the problem is the protection of the innocent. Comfort might also be drawn from the fact that the jurisdictions which have been engaged in these exercises have impeccable credentials when it comes to ensuring the protection of the innocent.
Principles of reform and
the identification of shortcomings
4.7 We have identified a number of
cardinal principles which should apply to all evidence rules, including the
hearsay rule. These cardinal
principles are as follows:
1. Evidentiary
rules should, within the limits of justice and fairness to all parties,
facilitate and not hinder the determination of relevant issues.
2. Conviction
of the innocent is always to be avoided.
All accused have a fundamental right to make full answer and defence to
a criminal charge.
3. Evidentiary
rules should be clear, simple, accessible, and easily understood.
4. Evidentiary
rules should be logical, consistent, and based on principled reasons.
5. Questions
of admissibility should be determinable with a fair degree of certainty prior
to trial so that the legal adviser may properly advise the client on the likely
trial outcome.
6. Evidence
law should reflect increasing global mobility and modern advancements in
electronic communications.
Shortcomings
4.8 We
have tested the existing law against each of these cardinal principles. Members concluded that under each of
these principles, the present rule exhibited shortcomings, some of greater
consequence than others.
4.9 We
have been conscious throughout our deliberations of the necessity to keep in
mind the advantages of, and the original rationale for, the hearsay rule: the great importance of the right to
challenge the accuracy of evidence, for the exercise of which the ability to
confront and cross examine a witness is a key consideration. So, too, confrontation is said to be
salutary to the witness and also gives to the proceedings, and to an accused, a
sense of justice being seen to be done.
Amongst other dangers of admitting hearsay is the risk that a trier of
fact might place too much weight on hearsay; the risk of misunderstanding by
the witness hearing the declaration; the risk of fabrication by the witness;
the risk of faulty memory of the witness; the risk of misperception by the
witness.
(1) Evidentiary rules should, within the limits of justice
and fairness to all parties, facilitate and not hinder the determination of relevant
issues
4.10 The
present hearsay rules do not assist, and in some instances they hinder, the
determination of relevant issues. A
primary criticism of the present law in criminal proceedings is that the
exceptions to the exclusionary rule are too restrictive and narrow in
scope. As a result, evidence which
is otherwise cogent and reliable is excluded from consideration.
4.11 While
the exceptions go some way to mitigate the harsh consequences of the hearsay
rule, they provide only a partial solution. The effect of the rule is to exclude
evidence because of its characteristics, without regard to whether or not it is
reliable. A legal framework which
emphasises reliability, rather than the nature of the evidence would seem more
in tune with the aim of determining fairly the guilt or innocence of the
accused.
4.12 One
area in which the hearsay rule arguably excludes cogent evidence is in respect
of implied assertions. In R v
Kearley[11], the House of Lords ruled that
evidence of telephone calls to the accused from persons inquiring as to the
supply of drugs was inadmissible, as evidence of the calls would amount to an
implied assertion that the accused was a supplier of drugs. The House ruled that an implied
assertion was hearsay (and thus inadmissible) in the same way as evidence from
an express assertion. The Hong Kong
Court of Appeal reached the same conclusion in R v Ng Kin‑yee[12] in respect of telephone calls
making inquiries about bookmaking.
4.13 The
justification for excluding implied assertions from the court's consideration
is that there exists no logical distinction between an "implied
assertion" and one that is express.
An inference of guilt from an implied assertion would be as dangerous as
one drawn from an express assertion made by a person who is not in court to
testify. However, this overlooks
the fundamental distinction that implied assertions concern the conduct of
persons who do not intend to make the assertion in question. For example, in Kearley, none of the callers intended to convey the message that
the defendant was a supplier of drugs.
Indeed, it was the unintended and genuine nature of their conduct that
gave this evidence considerable probative force. Unfortunately, the rule excluding
implied assertions is heavily formalistic and unable to give effect to the
substance of the evidence.
4.14 Despite
common roots, the rule has been interpreted differently in
"The
making of such inquiries and offers by a number of people tends to prove the
carrying on of a business. If such
inquiries or offers are directed to a particular premises, they tend to prove
the carrying on of the business at those premises. If they are directed to a particular
person they tend to prove the carrying on of the business by that person."
4.15 The
English Law Commission's 1997 Report had this to say:
"Where
there is an implied assertion, a fact not explicitly asserted is inferred from
words or conduct which may or may not themselves be an assertion: for example, they may take the form of a
question, or a greeting. In
ordinary life it is common for a fact to be inferred from the fact that a
person is behaving as if it were true.
If this reasoning is not permitted, it follows that much relevant
evidence is excluded.[14]"
4.16 Triers
of fact are routinely required to assess the weight to be placed upon different
portions of the evidence tendered during a trial: there seems to be no reason,
in logic, why they could not be entrusted with performing such an exercise with
evidence of this nature. That said,
the Sub-committee acknowledges that sight should never be lost of the risk in
admitting relevant but untested hearsay evidence.
4.17 The
decision in R v Harry[15] provides another example of how justice can be
sabotaged by the strict application of the hearsay rule. The defence wished to cross-examine a
prosecution witness about certain telephone calls which were made to the flat
in which the accused and his co-accused lived and in which a large quantity of
cocaine was found. The reason for
cross-examining the witness was to show that the co-accused was in fact the
drug dealer as the great majority of the calls were for the co-accused and
that those calls were about the prospective sales of cocaine. It was held that the defence should not
be permitted to cross-examine the witness as the purpose of the
cross-examination was to prove in a hearsay way that the co-accused, and not
the accused, was in fact the drug dealer.
4.18 Similarly
in R v Yick Hin-tong[16], the Benefit Investment Company was
held to have been the publisher of certain books on the basis that the
company's name was printed on those books. On appeal, it was held that the
magistrate had erred in relying on what was printed on the books. In allowing the appeal, O'Connor J
expressed his frustration with the law and said:
"The
evidence that the books carried in print the information that Benefit
Investment Co was the printer, being an assertion made otherwise than by a
witness in court, and not being within an exception to the hearsay rule, was
not admissible as to the truth of the matter asserted, that Benefit Investment
Co was the printer. That conclusion is not in accord with everyday experience,
nor has it anything in common with common sense. Nevertheless, it is the law,
and on that ground, the appeals on charges A, C, D and E will be allowed."[17]
4.19 A
commonplace demonstration of the absurdity of the present hearsay rule is that
a person cannot give evidence of his own age, because he does not know when he
was born; someone else must have told him.
As Kaufman JA in R v La Chapelle[18] noted:
"If it is hearsay for a person to
testify as to his own date of birth, the same reasoning would exclude him from
testifying as to the identity of his own parents.".
(2) Conviction
of the innocent is always to be avoided.
All accused have a fundamental right to make full answer and defence to
a criminal charge
4.20 Perhaps
the weightiest criticism of the hearsay rule is its inability to yield for
evidence that might exculpate an innocent person wrongly accused of a serious
offence. The case of
4.21 R v Blastland is
another classic example.[20] The accused was alleged to have killed a young
boy. There were, however, a number
of persons who were prepared to testify that shortly after the killing of the
young boy another person known as "M" had told them that a young boy
had been murdered. The
circumstances were such that M's knowledge of the killing raised an inference
that he had himself committed the murder. The trial judge ruled that as the purpose
of calling the witnesses was to prove by inference that it was M who had
committed the crime, the evidence had to be rejected as it was hearsay and
inadmissible.
4.22 The
English Law Commission referred to the decision in Blastland in their 1997 Report and remarked:
"...
if the evidence
shows that there is a possibility that someone else committed the crime alone,
and the jury cannot dismiss that possibility, then they cannot be sure of the
accused's guilt, and therefore should not convict. The fact that someone else has confessed
to the offence is logically relevant to the issue of whether the defendant
committed it: this is so whether the other person is a co-defendant who gives
evidence, a co-defendant who exercises the right not to give evidence, a
co-defendant who is tried separately, or a person who is never caught or never
prosecuted. Moreover, it will
normally be impossible for a defendant to adduce the oral evidence of the
person who has confessed, because that person could rely on the privilege
against self incrimination. "[21]
4.23 Wigmore[22] described this aspect of the
hearsay rule as a "barbarous
doctrine". In
4.24 Whilst
recognizing the increased possibility of fabrication in circumstances such as
those in Blastland, depriving an
accused of the right to adduce evidence of third-party confessions arguably may
constitute an erosion of his fundamental right to make full answer and defence
to a criminal charge.
4.25 Another example, though less well known than the previous two, is the startling case of R v Schwarz, considered by the South Australian Supreme Court.[24] The appellant was charged with murder. The immediate cause of the deceased’s death was tetanus but the prosecution alleged that the accused had caused death by wounding him in the foot with a garden fork, thereby introducing tetanus germs into his body. The deceased died 11 days after he received the wounds. The doctor who attended the deceased the day after the incident was called as a witness by the Crown. He was asked by counsel for the accused “Did deceased tell you anything on that occasion as to how the wounds were caused?”[25] The prosecution objected to this question on the basis that it would generate a statement by the deceased which was hearsay. The South Australian Full Court examined the law in some depth and concluded that: (1) the statement could not be part of the res gestae as it was not made during or immediately after the commission of the offence, but the next day: (2) the statement was not made in the presence of the accused: (3) the statement could not be a dying declaration because after the deceased had been stabbed in the foot he certainly had no belief that he would some ten days later die from infection: (4) there was no possibility that the statement was made by the deceased in the course of duty and in the ordinary course of business: and (5) it was argued that the statement was made by the deceased person and was wholly or in part against his pecuniary or proprietary interests. The judgment turns on that issue.
4.26 The South Australian Full Court ruled that the statement was wholly inadmissible. An additional part of the evidence also ruled inadmissible was what the doctor said to the following effect:
“He (the deceased) told me that he came out of this place and hit Schwarz twice with a stick over the head, that Schwarz ran away, that he took up the fork as he was running and threw it behind him towards the deceased, but he was sure Schwarz did not intend to injure him and he hoped Schwarz would not get into any trouble with the Police over it as it was not his fault”.
4.27 This
extraordinarily important and valuable evidence given by the deceased was ruled
to be inadmissible on the murder trial as it did not fit any recognised
category of admissibility as an exception to the hearsay rule. That decision was affirmed by the
4.28 In
4.29 There are many other cases in which cogent defence evidence has been excluded by the hearsay rule. Some of these include:
Ø R v Harry:[28] telephone calls from drug buyers asking for the co-accused could not be adduced by the accused, who was charged together with the co-accused with drug trafficking offences.
Ø R v Thomson:[29] defendant, who was charged with procuring an illegal abortion, was not allowed to adduce evidence that the pregnant woman (now deceased) had stated that she had performed the operation by herself.
Ø The Queen v Chow Ching-fuk:[30] accused and his brother were charged with joint possession of morphine for the purposes of trafficking; brother’s statement exculpating accused made when caught red-handed with the drugs could not be admitted in the accused’s defence.
Ø The Queen v Yiu Man-chung:[31] accused and co-accused were passenger and driver, respectively, in a car stopped by the police; one knife was found under the driver’s seat, another under the passenger’s seat; co-accused’s statement claiming that both knives were his own inadmissible at trial, at which co-accused failed to appear.
(3) Evidentiary
rules should be clear, simple, accessible, and easily understood
4.30 Cross
& Tapper begins the chapter on hearsay as follows:
"The
hearsay rule has often been regarded as one of the most complex and most
confusing of the exclusionary rules of evidence. Lord Reid said that it was ‘difficult to
make any general statement about the law of hearsay which is entirely accurate.’ "[32]
4.31 The
cumulative effect of the absurdities caused by the illogicality of the hearsay
rule caused Lord Griffiths to remark in Kearley:
" … most layman if told that the criminal law of evidence forbade them
even to consider such evidence as we are debating in this appeal would reply
'Then the law is an ass'. "[33]
4.32 If
judges and lawyers have difficulty understanding the hearsay rule, there must
be doubt as to the ability of a jury to understand, and to apply properly,
instructions on how to consider hearsay evidence. However, empirical evidence of jury
understanding in this regard is difficult to obtain given the secrecy of jury
deliberations. When hearsay evidence
is admitted for non-hearsay purposes, the jury must be told how the evidence
can and cannot be used. Given the
complexities of the hearsay
rule, the danger that juries will misuse such evidence is a real one. There are numerous situations where a
jury will hear or receive evidence with the often confusing instruction that
they can use the evidence for one purpose but not another.
4.33 The
rule is often divorced from commonsense, displaying fixation with formal
categorisation.
4.34 The
difficulty which lawyers and judges often have in applying the hearsay rule is
evidence that the rule is complex and not easily understood. Recent cases continue to illustrate how easily
judges and lawyers can form different understandings of what is hearsay and how
statutory exceptions should be applied.[34] The
sheer bulk of text devoted to the subject in text books on evidence is also
indicative of the difficulties which the rule occasions.
4.35 A
contributing factor to this complexity is that the law cannot be determined
from a single source but must be searched out in a host of separate legislative
provisions and court rulings. The
law is not easily accessible to either judge or advocate. In addition, many of the long-standing statutory
exceptions in the Hong Kong Evidence Ordinance (Cap 8) are drafted in opaque
and confusing language.
4.36 Courts
from different common law jurisdictions have understood and applied the rule
differently. Questions as basic as
the definition of hearsay have attracted extensive judicial consideration and
debate.
(4) Evidentiary
rules should be logical, consistent, and based on principled reasons
4.37 The
most consistent objection to the admissibility of hearsay evidence emphasises
the inability to test the evidence through cross-examination, the lack of
opportunity to see the witness's demeanour, and the unsworn character of the
statement.
4.38 Thus,
logically, exceptions to the hearsay rule should be based on the non-existence
of one or more of these dangers.
However, this is not the case.
While for the most part the existing exceptions do operate on this basis,
there are significant gaps. Not
every situation where one or more of the hearsay dangers is lacking is covered
by an exception to the hearsay rule.
The exceptions themselves have been arbitrarily defined with little
flexibility. The limited scope of
some exceptions often cannot be explained in terms of the rationale for the
exception.
4.39 Phipson
on Evidenc[35] postulates classification of the
exceptions into five major groups of cases. They are:
" …
(a) cases based on the axiom that what a man says against his own interest is
likely to be true, (b) cases based on the intrinsic reliability of public
records, (c) cases recognizing that where a witness is dead, it may be better
to admit evidence of what he said than to deprive the court of all proof, (d)
cases recognizing the force of common knowledge, where a fact is reputed among
those who ought to know it, but its source is unknown, and (e) cases where the
contemporaneity of the statement is itself some guarantee of its reliability."
4.40 A
further problem concerns the validity of the rationale for particular exceptions. For instance, assumptions concerning
human behaviour, on which some of the exceptions were based, may not
necessarily be true or accepted today.
4.41 Examples
of illogicalities abound:
1. Refreshing
memory The practice of
allowing a witness to refresh his memory from an earlier note or statement is
an obvious example: the practice requires the trier of fact then to accept the
evidence from the less reliable "refreshed" witness instead of
receiving the more reliable contemporaneous written source used to refresh the
witness. If the witness is not refreshed, the hearsay rule has no exception to
receive the written statement instead.
2. Declarations
against interest This
exception only extends to declarations against pecuniary and proprietary
interest and not to those against penal interest. Conversely,
the Supreme Court of Canada in R v O'Brien[36] extended the exception to statements
against penal interest for the logical reason that: "A person is as
likely to speak the truth in a matter affecting his liberty as in a matter
affecting his pocketbook."[37]
3. Dying
declarations This exception
is arbitrarily narrow, extending only to cases of murder and manslaughter. It is also confined to statements made
under a settled and hopeless expectation of death. A third arbitrary limitation of the rule
is that the declaration can only be proof of the declarant's cause of
death. There seems to be no logical
justification for these restrictions. A further illogicality exists: a
dying declaration in which the victim named his assailant would be admissible,
but not a similar declaration in which a person on the verge of death confessed
to his crime.
4. Res
gestae The spontaneous and contemporaneous conduct, opinion or
statement of a person who is not available to give evidence may be admitted as
evidence where the conduct, opinion or statement was so closely and
inextricably bound up with the history of the guilty act itself as to form a
part of a single chain of relevant evidence. The evidence admitted may be used not
only as evidence of truth but also as evidence of the person's state of mind or
emotional state at the relevant moment.
Such a situation may leave little opportunity for concoction but there
may exist other reliability problems as statements made in the heat of the
moment may be particularly prone to distortion, perhaps unwittingly, as the
perceptions of both the declarant and the testimonial witness may be coloured by
the emotion of the moment.
Moreover, courts have also held that out-of-court statements evidencing
the declarant's state of mind do not come within the definition of
hearsay. This confusion obscures
rather than clarifies the extent and rationale of the exception.
5. Documentary
and computer records The Court of Final Appeal has criticized
sections 22 and 22A of the Evidence Ordinance (Cap. 8) suggesting the need for
legislative reform.[38]
6. Negative
assertions The English Law Commission noted the illogicality that
"It seems that, if an inference is drawn from a document, it is
hearsay, but if an inference is drawn from the non-existence of a document or
entry, it is direct evidence." [39]
Negative
inferences from the absence of a record are permissible, whereas positive
inferences from the record are not, Shone[40].
7. Evidence is admitted to prove state
of mind or a belief, rather than the fact or the suggested fact to which the
belief is directed If it is rational and
probative to draw the inference of fact from the state of mind (that X not only
was in fear but had good reason to fear) a rule which prevents the trier of
fact from doing so appears illogical.
It is then valid to consider whether, in any event and despite all
directions to the contrary, it is realistic to expect that a jury will do
anything else but draw the inference of fact.
8. Recent complaints If a recent complaint is to be regarded
not as proof of truth of the content of the statement but only as evidence of
consistency, there seems little logic (as opposed to theoretical justification)
that it be so only in cases of sexual assault. Once again, it is then valid to consider
whether, in any event and despite all directions to the contrary, it is
realistic to expect that a jury will do anything other than treat a recent
complaint as evidence of the truth of the complaint.
9. Implied assertions Where there is no intention to assert a
fact when a comment is made, the implied assertion might well be regarded as
self authenticating[41].
10. Previous
inconsistent statements A
previous inconsistent statement is not evidence of the truth of its contents,
even though on the facts of a particular case common sense might dictate that
the previous statement was obviously true or more reliable than the subsequent
oral evidence.
11.
Previous consistent statements There is much to be said for the view
that to regard previous consistent statements as going only to the issue of
credibility is illogical.
12.
Witness’s demeanour It is now recognised that over-emphasis
has been placed in the past on the demeanour of a witness testifying in court. Demeanour can be a misleading guide to
veracity.