 |
Hong Kong Law Reform Commission |
Chapter
5
International
developments
___________________________________
Introduction
5.1 The
shortcomings of the existing hearsay rule which we have identified in Chapter 4
are not peculiar to
The international trend
5.2 While
not all jurisdictions that have reformed their hearsay law have completely
abolished the exclusionary rule and rendered hearsay generally admissible,
there is a growing trend towards relaxation of the hearsay rule to make it more
flexible and more equitable. This
has been done both through the creation of more exceptions to the rule and by
giving the courts a discretion to admit cogent and reliable hearsay that does
not fall within the stated exceptions.
The result has generally been greater clarity and simplicity in the law.
5.3 In
Australia, for example, the Evidence Act (Commonwealth) 1995 has set out the
exceptions to the hearsay rule and specified the situations where the hearsay
rule will not apply, greatly enhancing the accessibility of the law.
5.4 In
5.5 In
"further
consideration of the reform of the rule against hearsay, in particular with a
view to making hearsay generally admissible subject to the principle of best
evidence, rather than generally inadmissible subject to specified exceptions as
proposed by the Law Commission."[2]
5.6 In
1999 the New Zealand Law Commission recommended that hearsay evidence should be
admitted if it was reliable, and if it was necessary to do so. Hearsay evidence would accordingly
become generally admissible, subject to the criteria of necessity and
reliability. The
5.7 In
5.8 In
South Africa, the South African Law Commission recommended that hearsay
evidence should be admissible if the party against whom that evidence was to be
adduced agreed to its admission, or if the person upon whose credibility the
probative value of that evidence depended himself testified at the proceedings.[5] Furthermore, the South African Law
Commission recommended that the court should be given a discretion to allow
hearsay evidence in certain circumstances.[6] These recommendations were subsequently
incorporated into the Law of Evidence Amendment Act 1988, moving the law away
from the traditional hearsay rule.
Reforms proposed or
adopted in other jurisdictions
Australia
5.9 In
1979, the Australian Law Reform Commission (ALRC) was tasked to review the law
applicable to proceedings in Federal Courts and Courts of the Territories. An Interim Report and a Final Report
were respectively published by the ALRC in 1985 (ALRC 26) and 1987 (ALRC 38).
The Evidence Act (Commonwealth) 1995 (The 1995 Commonwealth Act), which came
into force on
"As the Federal Minister for Justice
stated in March 1995, the 'Evidence Act 1995 is one of the most important
reforms in the administration of justice in
5.10 Section
59(1) of the 1995 Commonwealth Act provides for the exclusion of hearsay
evidence as follows:
"Evidence of a previous representation
made by a person is not admissible to prove the existence of a fact that the
person intended to assert by the representation."
5.11 Although
the 1995 Commonwealth Act has established the hearsay rule and excludes
evidence of a previous representation unless it falls within one of the
exceptions provided in the Act, the specific exceptions and the exceptional
circumstances under which hearsay evidence is to be admitted are so different
in scope and magnitude from those of the traditional hearsay law that to
associate the two approaches as being similar would seem inappropriate. The specific exceptions under which
hearsay is admissible under the 1995 Commonwealth Act are as follows:
l
evidence
relevant for a non-hearsay purpose (section 60);
l
first-hand
hearsay:
- civil proceedings, if
the maker of the representation is unavailable (section 63) or available
(section 64);
- criminal
proceedings, if the maker of the representation is unavailable (section 65) or
available (section 66);
l
business
records (section 69);
l
tags
and labels (section 70);
l
telecommunications
(section 71);
l
contemporaneous
statements about a person's health etc. (section 72);
l
evidence
as to marriage, family history or family relationship (section 73);
l
evidence
as to public or general rights (section 74);
l
use
of evidence in interlocutory proceedings (section 75);
l
admissions
(section 81);
l
representations
about employment or authority (section 87(2));
l
exceptions
to the rule excluding evidence of judgments and convictions (section 92(3));
l
character
and expert opinion about accused persons (sections 110 and 111)
5.12 Apart
from these specific exceptions, the 1995 Commonwealth Act further provides that
in certain situations where reliability and cogency of the evidence can be
ascertained the hearsay rule would have no application. Thus, where the maker of a previous representation
is unavailable[8]
to give evidence in criminal proceedings about an asserted fact, section 65(2)
of the 1995 Commonwealth Act provides that the hearsay rule does not apply to
evidence of a previous representation given by a person who saw, heard, or
otherwise perceived the representation being made if the representation was
made (a) under a duty; (b) when (or shortly after) the asserted fact occurred
and in circumstances that make it unlikely that the representation is a
fabrication; (c) in circumstances that make it highly probable that the
representation is reliable; or (d) against the interests of the person who made
it at the time it was made.
5.13 Section
65(2) of the 1995 Commonwealth Act is significant as it moves the law away from
the traditional practice of excluding hearsay evidence that does not fall
within any of the common law or statutory exceptions, regardless of how cogent
or reliable the evidence might be, and regardless of how unjust or unfair that
might be to the party concerned.
5.14 Section
65(8) of the 1995 Commonwealth Act provides yet another situation where the
hearsay rule would have no application.
Under the section, the defendant is allowed to adduce hearsay evidence
where certain requirements are met, providing that the other party would be
permitted to adduce hearsay evidence to qualify or to explain the hearsay
evidence so adduced by the defendant[9]. According to section 65(8), the hearsay
rule does not apply to:
"(a) oral evidence of
a previous representation adduced by a defendant if the evidence is given by a
person who saw, heard, or otherwise perceived the representation being made; or
(b) a document
tendered as evidence by a defendant so far as it contains a previous
representation, or another representation to which it is reasonably necessary
to refer in order to understand the representation."
5.15 The
practical effect of section 65(8)(a) and (b):
"…
is that first-hand hearsay in oral or documentary form is not excluded by the
hearsay rule when adduced by the defendant in criminal proceedings (so long as
the person who made the previous representation is not available to give
evidence)."[10]
5.16 Section
65(9) of the 1995 Commonwealth Act provides that:
"If
evidence of a previous representation about a matter has been adduced by a
defendant and has been admitted, the hearsay rule does not apply to evidence of
another representation about the matter that:
(a) is adduced
by another party; and
(b) is given by
a person who saw, heard or otherwise perceived the other representation being
made."
5.17 The
practical effect of section 65(9) is that it allows another party to adduce
hearsay evidence to qualify or to explain a representation admitted under
section 65(8)(a).[11] Odgers illustrates the effect of the provision
in the following words:
"Thus,
for example, if the defence adduces evidence of a third party confession under
s 65(8)(a), the prosecution may adduce evidence from a person who heard the
making of the alleged confession that the third party also made other
statements which qualified or explained in some way the confession."[12]
5.18 Where
the maker of a previous representation is available to give evidence about an
asserted fact and that person has been or is to be called to give evidence,
section 66(2) of the 1995 Commonwealth Act provides that the hearsay rule does
not apply to evidence of the representation that is given either by that person
or a person who saw, heard, or otherwise perceived the representation being
made if, when the representation was made, the occurrence of the asserted fact
was fresh in the memory of the person who made the representation. Odgers in his commentary explains[13]
that an example of the application of this provision would be the admissibility
of evidence of a complaint made soon after the alleged offence, and that unlike
common law; the provision is not restricted to complaints of sexual
assault. Also, the evidence will be
admissible to support the credibility of the complainant.
5.19 Section
67 of the 1995 Commonwealth Act provides that subsections 63(2), 64(2) and
65(2), (3) and (8) do not apply unless the party seeking to adduce the evidence
has given reasonable notice in writing to every other party of his intention to
adduce the evidence.
5.20 To
avoid the admission of hearsay evidence which would result in injustice caused
to any party to the proceedings, sections 135 and 137 of the 1995 Commonwealth
Act provide that the court has discretion to exclude evidence which would
otherwise be admissible under one of the exceptions. Section 135 provides that:
"The
court may refuse to admit evidence if its probative value is substantially
outweighed by the danger that the evidence might
(a) be unfairly prejudicial to a party; or (b) be misleading or confusing; or
(c) cause or result in undue waste of time."
Section 137 offers an additional safeguard to the interests
of an accused by providing that "In
a criminal proceeding, the court must refuse to admit evidence adduced by the
prosecutor if its probative value is outweighed by the danger of unfair
prejudice to the defendant."
5.21 Another
interesting provision relating to the general discretion the 1995 Commonwealth
Act has provided for judges appears in section 136 of the Act, which gives the
court discretion to limit the use to be made of evidence "… if there is a danger that a particular use
of the evidence might: (a) be unfairly prejudicial to a party; or (b) be
misleading or confusing."
Canada
5.22 The
Canadian courts have shown a willingness to adapt the rule to suit changing
circumstances. They have shown
themselves in sympathy with the approach suggested by Lord Pearce and Lord
Donovan for the minority in Myers.
5.23 These
dissenting views were adopted and followed by the Supreme Court of Canada in Ares v Venner,[14]
where the Court ruled that:
"Although
the views of Lords Donovan and Pearce are those of the minority in the Myers
case, I am of the opinion that this Court should adopt and follow the minority
view rather than resort to saying in effect: 'This judge-made law needs to be
restated to meet modern conditions, but we must leave it to parliament and the
ten legislatures to do the job."[15]
5.24 In
R v Khan,[16]
the Supreme Court of Canada set out a two-fold test which Canadian courts are
required to follow when the facts of a case are such that a new exception to
the rule is called for. The Court
favoured the two-fold test of "necessity" and "reliability"
for the following reasons:
"It
is preferable to adopt a flexible approach to the admission of hearsay evidence
which meets the requirements of necessity and reliability rather than
attempting to expand the spontaneous declaration exception to the hearsay
rule. The first question should be
whether reception of the hearsay statement is reasonably necessary .… As regards the reliability requirement
the court would have to take into consideration many factors such as timing,
demeanour, personality of the child, the intelligence and understanding of the
child, and the absence of any reason to expect fabrication in the
statement. The matters relevant to
reliability will vary with the child and with the circumstances and are best
left to the trial judge.
Accordingly, hearsay evidence of a child's statement on crimes committed
against the child should be received, provided that the guarantees of necessity
and reliability are met, subject to such safeguards as the judge may consider
necessary and subject always to considerations affecting the weight that should
be accorded to such evidence."[17]
5.25 Apart
from endorsing the "necessity" and "reliability" tests, the
Court in Khan also provided a
critical analysis of the hearsay rule and held that hearsay evidence previously
inadmissible under the traditional hearsay rule might now be admitted:
"The
hearsay rule has traditionally been regarded as an absolute rule, subject to
various categories of exceptions, such as admissions, dying declarations,
declarations against interest and spontaneous declarations. While this approach has provided a
degree of certainty to the law on hearsay, it has frequently proved unduly
inflexible in dealing with new situations and new needs in the law. This has resulted in courts in recent
years on occasion adopting a more flexible approach, rooted in the principle
and the policy underlying the hearsay rule rather than the strictures of
traditional exceptions”.[18]
5.26 In
R v Smith,[19]
the Supreme Court of Canada reaffirmed its previous proposition that the
Canadian courts would not follow the traditional practice of excluding hearsay
evidence unless it falls within one of the stated exceptions. The Court said:
"This
court has not taken the position that the hearsay rule precludes the reception
of hearsay evidence unless it falls within established categories of exceptions
.… Indeed, in our recent decision
in R v Khan .… we indicated that the categorical approach to exceptions
to the hearsay rule has the potential to undermine, rather than further, the
policy of avoiding the frailties of certain types of evidence which the hearsay
rule was originally fashioned to avoid."[20]
5.27 The
Court in Smith did not refute the
established categories of exceptions to the hearsay rule[21] but concluded that where the
circumstances were such that the tests of "necessity" and
"reliability" had been satisfied, hearsay evidence ought generally to
be admissible, subject to the residual discretion of the judge to exclude
evidence where its prejudicial effect outweighed its probative value. Lamer CJC held as follows:
"To
conclude, as this court has made clear in its decisions in Ares v Venner
… and R v Khan …. the approach that excludes hearsay evidence, even when
highly probative, out of the fear that 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.
Properly cautioned by the trial judge, juries are perfectly capable of
determining what weight ought to be attached to such evidence, and of drawing
reasonable inferences therefrom."[22]
5.28 After
the Supreme Court of Canada's decision in Khan
(1990), Smith (1992)
and R v KGB[23]
(1993), it was established that judges in Canada could admit hearsay evidence
if it met the criteria of necessity and threshold reliability (referred to by
the courts as "the principled approach"). This development was welcomed by most
judges, prosecutors and defence counsel.
However, the principled approach has not been without its
complications. With each inroad
into the traditional hearsay rule, new issues have arisen and been litigated to
determine the application of the principled approach. Indeed, in R v Starr,[24] the relationship
between the principled approach and the traditional exceptions to the hearsay
rule was considered. The majority
of the court (5:4) ultimately held that while the traditional exceptions
existed alongside the principled approach, they must be rationalised by
adopting the necessity and threshold reliability criteria. In other words, if evidence was to be
admitted under a traditional exception, it must also meet the conditions of
necessity and threshold reliability.
Thus, where the traditional exceptions to the hearsay rule conflict with
the criteria set out in the principled approach, the principled approach
prevails, and evidence otherwise admissible under the traditional exceptions
will be excluded. The Canadian law
governing the admissibility of hearsay evidence was summarised by Iacobucci J
in Starr as follows:
"In future cases where it is sought
to revisit the applicability of traditional hearsay exceptions, in the clear
majority of cases, the presence or absence of a traditional exception will be
determinative of admissibility.
Evidence falling within a traditional exception is presumptively
admissible. Traditional hearsay
exception should be interpreted in a manner consistent with the requirement
that hearsay evidence may only be admitted if it is necessary and
reliable. However, in some rare
cases, it may also be possible under the particular circumstances of a case for
evidence clearly falling within an otherwise valid exception nonetheless not to
meet the principled approach's requirements of necessity and reliability, thus
requiring exclusion of the evidence.
The party challenging the admissibility of evidence falling within a
traditional exception will bear the burden of proving that the evidence should
nevertheless be inadmissible."[25]
England Wales
5.29
As noted earlier in this paper, the Criminal Justice Act 2003 implemented many
of the recommendations put forward in the English Law Commission's 1997 report
on Hearsay and Related Topics. The Act was passed and received Royal
Assent on
The Criminal Justice Act
1988
5.30 The
Criminal Justice Act 1988 relaxed the application of the hearsay rule to some
extent, but only insofar as it related to documentary
evidence. The prohibition on oral hearsay
remains unchanged.
5.31 Under
section 23 of the 1988 Act, a statement made in a document by a statement-maker
who was unavailable in court to testify would be admitted in evidence. Only first-hand documentary hearsay would
be admissible under the section, which did not allow, for instance, A to give
evidence of a statement made by B as to what C had said. Subject to the requirements set out in
subsections (2) and (3), a statement made by a person in a document would be
admissible in criminal proceedings as evidence of any fact of which direct oral
evidence by that person would have been admissible. The court had a discretion to direct
that the statement should not be admitted, however, if the court was of the
opinion that "in the interests of justice" the statement should be
excluded.[26]
5.32 Section
23(2) and (3) set out the circumstances in which a statement could be
admitted. Section 23(2) referred to
the following circumstances:
l
the
statement-maker was dead;
l
the
statement-maker was unfit to attend as a witness because of his bodily or
mental condition;
l
the
statement-maker was outside the
l
the
statement-maker could not be found despite all reasonable steps having been
taken to find him.
The circumstances
mentioned in section 23(3) were as follows:
l
the
statement was made to a police officer or some other person charged with the
duty of investigating offences or charging offenders; and the statement-maker did
not give oral evidence through fear or because he was kept out of the way.
5.33 The
statement referred to in section 23 had to be made by the statement-maker, or
approved by him. Accordingly, it
has been suggested[27]
that a witness statement written by a police officer but signed by the witness
in his handwriting would also satisfy the test.
5.34 Section
24(1) provides that a statement in a document will be admissible in criminal
proceedings as evidence of any fact of which direct oral evidence would be admissible,
subject to the following conditions:
"(i) the
document was created or received by a person in the course of a trade,
business, profession, or other occupation, or as holder of a paid or unpaid
office; and
(ii) the
information contained in the document was supplied by a person (whether or not
the maker of the statement) who had, or may reasonably be supposed to have had,
personal knowledge of the matters dealt with."
5.35 While
section 23 applied only to first-hand hearsay, section 24 deals with multiple
hearsay, as the information contained in the document might pass through more
than one person before it was finally made or created. Section 24(2) provides that the
information contained in the document could be supplied either directly or
indirectly. However, if the
information was supplied indirectly, each person through whom the information
was transmitted must have received it either in the course of a trade,
business, profession or other occupation, or as a holder of a paid or unpaid
office. The supplier of the
information, on the other hand, must have (or may reasonably be supposed to
have had) personal knowledge of the matters contained in the document, and each
of the persons to whom the information was supplied must have received it in the
course of a trade, etc.
5.36 Section
26 required leave of the court to be obtained to admit a statement prepared for
the purposes of pending or contemplated criminal proceedings or of a criminal
investigation which would be otherwise admissible under section 23 or 24. The court could only give leave if it
was of the opinion that the statement ought to be admitted in the interests of
justice. In considering whether the
admission would be in the interests of justice, the court had to have regard:
(i) to
the contents of the statement;
(ii) to
any risk, having regard in particular to whether it was likely to be possible
to controvert the statement if the person making it did not attend to give oral
evidence in the proceedings, that its admission or exclusion would result in
unfairness to the accused or, if there was more than one, to any of them; and
(iii) to any
other circumstances that appeared to the court to be relevant.
5.37 The
case of Bedi[28]
highlighted an anomaly in section 24.
In Bedi, it was held that the
employee of a credit card company who recorded a report of a lost or stolen
card was the maker of the statement, as the employee was creating the document
in the course of a trade, etc.
Accordingly, the document containing the statement would be admissible
under section 24 as the employee was the maker of the record. The form completed by the card-owner in
reporting the loss of the credit-card was inadmissible under section 24,
however, as the card-owner was not creating or receiving the document in the
course of a trade, etc. This led
the English Law Commission to remark in their 1997 Report that:
"The
effect is that, where an oral statement is made by one person to another person
who records it in the course of business for the purpose of criminal
proceedings or a criminal investigation, the record is admissible if the person
recording it cannot remember the matter stated – even if the person who made
the oral statement can. This
appears to be a drafting oversight and cannot have been the intention of
Parliament."[29]
5.38 As
noted above, the admission of documents pursuant to sections 23 and 24 was not
automatic. Section 25 granted the
court a discretion to reject an otherwise admissible hearsay document tendered
under section 23 or 24 if the court was of the opinion that, having regard to
all the circumstances, it was not in the interests of justice for the statement
to be admitted. In exercising this
discretionary power, section 25(2) provides that the court must have regard to:
l
the
nature and source of the document and any other relevant circumstances while
determining its authenticity;
l
the
extent to which the document appears to supply evidence which would otherwise
not be readily available;
l
the
relevance of the evidence; and
l
any
risk that the admission or exclusion of the document would result in unfairness
to the accused.
5.39 The
considerations which sections 25 and 26 require the court to take into account
in exercising its discretionary power appeared to have assumed that this evidence
would be adduced by the prosecution and not by the defence.[30] The interests of the prosecution appeared
to have been overlooked. For
example, section 25(2)(d) only referred to the risk of unfairness to the
accused.
5.40 The
rationale behind the English provisions was explained in the case of Cole:
"The
overall purpose of the provisions of sections 25 and 26 of the 1988 Act is … to
widen the power of the court to admit documentary hearsay evidence while
ensuring that the accused receive[s] a fair trial. In judging how to achieve the fairness
of the trial a balance must on occasions be struck between the interests of the
public in enabling the prosecution case to be properly presented and the
interest of a particular defendant in not being put in a disadvantageous
position, for example by the death or illness of a witness. The public of course also has a direct
interest in the proper protection of the individual accused. The point of balance, as directed by
Parliament, is set out in the sections."[31]
5.41 The
English Law Commission expressed concern that the appearance of objectivity
given by the application of the factors listed in sections 25 and 26 to the
court's exercise of its discretion was more apparent than real. The Commission's 1995 Consultation Paper
noted " … that different judges
reach different conclusions about whether or not untested evidence should be
admitted - and a similar divergence of approach appears in decisions of the
Court of Appeal."[32] A similar conclusion was reached in the
1997 Report, where it was said that "The
problem of arbitrary justice is a very real one." [33]
The English Law
Commission's recommendations
5.42 The
1997 Report put forward some 50 recommendations for reform. The main thrust of the report was that
there should be a general rule against hearsay, subject to specified
exceptions, combined with a limited inclusionary discretion.[34]
5.43 The
English Law Commission (the English Commission) proposed that the exception
provided under section 23(2) of the 1988 Act allowing documentary hearsay to be
admitted where the statement-maker could not be presented in court should
extend to oral as well as documentary hearsay. The English Commission argued that this
"unavailability" exception should not be confined to documentary
hearsay because there was no reason to believe that oral evidence was always
less cogent or reliable than documentary evidence.[35]
5.44 The
English Commission recommended that the unavailability exception should not be
available unless the person who made the statement was identified to the
court's satisfaction,[36]
and that it should not be extended to a statement of any fact of which the
declarant could not have given oral evidence at the time when the statement was
made.[37] It also recommended that the exception
should not apply where the declarant's oral evidence of the fact stated would
itself have been hearsay, and would have been admissible only under the
unavailability exception or one of the common law exceptions that it
recommended should be preserved.[38] Furthermore, the English Commission
recommended that a person should not be allowed to adduce a statement under the
unavailability exception where he himself (or a person acting on his behalf)
had caused the declarant's unavailability in order to prevent the declarant
from giving oral evidence.[39]
5.45 The
English Commission recommended that the unavailability exception should apply
where the declarant:
(i) is
dead;[40]
(ii) is
unfit to be a witness because of his or her bodily or mental condition;[41]
(iii) is
outside the
(iv) cannot be
found, although such steps as it is reasonably practicable to take to find him
or her have been taken.[43]
5.46 Where
a person does not give (or does not continue to give) oral evidence in the
proceedings through fear, the English Commission recommended that a record of
his statement should be admissible with the leave of the court.[44]
5.47 The
English Commission recommended that statements falling within the business
documents exception under section 24 of the 1988 Act should be automatically
admissible, but that the court should be given the power to direct that a
statement is not admissible as a business document if the court is satisfied
that the statement's reliability is doubtful.[45]
5.48 It recommended that the current law governing the admissibility of admissions, confessions, mixed statements and evidence of reaction should be preserved.[46] It further recommended that hearsay evidence should be admissible if all par