 |
Hong Kong Law Reform Commission |
Chapter
8
Options
for reform
________________________
A
model of the present law
8.1 The
present law of hearsay in
(a) a
blanket rule of exclusion ("exclusionary rule")
(b) a
fixed number of specific common law and statutory exceptions to the
exclusionary rule (what may be termed "pigeonhole exceptions"); and
(c) the
absence of a judicial discretion to admit evidence caught by the exclusionary
rule ("no discretion to admit").
8.2 The
question of reform requires an examination of each of these components. As regards the first component, the most
basic question to consider is whether to keep the exclusionary rule or to
discard it along the lines of the reform of civil hearsay. Even if the exclusionary rule is kept,
should the scope of application be narrowed by, for example, restricting the
definition of hearsay evidence or the types of proceedings in which the rule
should operate?
8.3 A
consideration of the “pigeonhole exceptions” also raises a number of important
issues. Should the common law
exceptions be abolished, or codified, or left as they are? If they are codified, should individual
exceptions be widened to remove any anomalous restrictions? Are the existing statutory exceptions
satisfactory or are there reasons to reform some or all of them? Should new “pigeonhole exceptions” be
enacted? Possible reform of the
third component requires consideration of two main issues: whether to codify a
discretion to admit and, if so, what form should it take?
8.4 Given
the many possible answers to each question (and the ways in which those answers
may be combined), the number of possible options for reform is enormous. In our deliberations, 14 different
options for reform were identified and considered. It was readily determined that a number
of these options were unacceptable for various reasons. Three main options became the subject of
further debate and consideration.
In the result, a consensus was reached on a single proposed model of
reform. The proposed model of reform,
described in greater detail in the next chapter, recommends the following:
(a) redefining
hearsay evidence so that it no longer includes implied assertions;
(b) retaining
the exclusionary rule;
(c) abolishing
the common law exceptions to the hearsay rule, except those relating to
confessions, admissions, statements against interest, statements in furtherance
of a conspiracy, and opinion evidence;
(d) enacting
a core scheme that confers a discretion on the trial judge to admit hearsay
evidence on the basis of a defined test of necessity and threshold reliability;
(e) incorporating
sufficient safeguards within the core scheme to protect the innocent from being
convicted and to prevent the integrity of the trial process from being
compromised;
(f) repealing
certain statutory exceptions, substantially modifying others, and adding new
exceptions, particularly for prior consistent statements and evidence admitted
by consent.
Rejected options and
proposals
The polar extremes: no
change and free admissibility
8.5 Having
identified the numerous shortcomings of the present law and recognizing the
repeated criticisms of that law by distinguished jurists and academics in the
common law world, we conclude that maintaining the status quo is not a realistic
option.
8.6 At
the other extreme, we also do not recommend the abolition of the exclusionary
rule and the unrestricted free admissibility of relevant hearsay evidence. Indeed, even after its significant
reform, hearsay evidence in civil proceedings may still be excluded, albeit in
exceptional circumstances.[1] In the context of criminal
proceedings, there are good reasons for ensuring that the admission of hearsay
evidence remains the exception and does not become the norm. The reasons for retaining the
exclusionary rule include the following:[2]
(a)
without
it, evidence would "not need to meet
any standard of reliability, nor to be unavailable in any other form, in order
to be admitted" and there would be no safeguards against dubious and
unreliable hearsay;[3]
(b)
free
admissibility "fails to attach any
importance to the need for cross-examination";[4]
(c)
the
lack of opportunity for the defence to cross-examine admitted hearsay of any
type would arguably infringe rights protected under the Basic Law and Hong Kong
Bill of Rights Ordinance;
(d)
fact-finders
would be exposed to evidence of unidentified persons;[5]
(e)
fact-finders
would be exposed to multiple hearsay.
The "dangers of inaccuracy
and ambiguity increase with the number of times a story is repeated";[6]
(f)
the
direction that the judge would have to give to the jury in respect of multiple
hearsay evidence could be extremely complicated. A jury is likely to be easily confused
by such a direction;[7]
(g)
free
admissibility would "leave the court
open to a vast amount of evidence, much of it superfluous". This would unduly prolong hearings;[8]
(h)
free
admissibility would encourage a lax approach to investigation and prosecution;
and
(i)
policing
fabricated evidence, including exculpatory evidence, would be particularly
difficult.
8.7 For
the above reasons, options just short of these two extreme positions are also
unsatisfactory. One option is to
remove some of the existing anomalies with the statutory exceptions to hearsay
without any major changes to the general structure of the law. The Sub-committee considers that this
kind of minor tinkering, though a step in the right direction, is insufficient
on its own to address all the shortcomings of the existing law. In accordance with the terms of
reference, the Sub-committee believes in principle that reform of hearsay in
criminal proceedings can and should be more comprehensive. As mentioned in Chapter 1, there is
little prospect of judicial change to the law. It is worth repeating the sentiments
expressed by the Court of Final Appeal on the question of reform:
"In
R v Blastland,
all the other Law Lords hearing the appeal agreed with Lord Bridge of Harwich
who (at p.52H) referred to the principle established in Myers v
DPP 'never since
challenged, that it is for the Legislature, not the Judiciary, to create new
exceptions to the hearsay rule'. In
Bannon v R
(1995) 185 CLR 1, a case before the High Court of
8.8 One
member of the Sub-committee had expressed an initial interest in the option of
free admissibility, subject to a residual discretion to exclude. This was a proposal based on the present
law governing civil hearsay. After
some discussion, the Sub-committee unanimously agreed that this option had
insufficient safeguards to address the concerns listed in paragraph 8.6
above.
Recommendation 3
We recommend that the polar extreme options of no change or free
admissibility, or options just short of these extreme positions, be
rejected. We believe these options
either inadequately address the shortcomings in the law or, at the other
extreme, have insufficient safeguards.
Best available evidence
8.9 The
option of freely admitting the best available evidence was referred to in the
Auld report as follows:
"Professor
John Spencer … argued that there should be a generally inclusionary system
subject to a 'best available evidence' principle. That is, each side would be
obliged to produce the original source of the information if the source is
still available."[10]
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", Lord Justice Auld believed there was merit in making
relevant hearsay evidence generally admissible subject to the best available
evidence principle.[11] However, the English Law Commission
rejected this option because it effectively required judges and magistrates to
assume an inappropriate inquisitorial role in ensuring that the best available
evidence was brought before the court.[12] The Law Commission also believed that "it would be difficult to ensure that
the parties respected the obligation to produce the source of their evidence
where possible."[13] The Law Commission's views were
reflected in the hearsay reform proposals contained in the Criminal Justice Act
2003 (
8.10 This
option is unanimously rejected by the Sub-committee. In addition to the reasons given by the
Law Commission, we believe that this option has insufficient safeguards to
prevent the admission of unreliable evidence. Furthermore, this option is likely to
lead to considerable unproductive time being spent, both pre-trial and during
trial, on determining whether an item of evidence is the "best
available".
Recommendation 4
We recommend that the “best available evidence option” be rejected, for
it is impractical for the parties to comply with, difficult for the court to
enforce without becoming inquisitorial, contains insufficient safeguards, and
may contribute to inefficient use of court time.
Discretion to admit only
defence hearsay
8.11 The
proposal to give the defence more liberal rights than the prosecution to adduce
hearsay evidence was considered by both the Scottish and English Law
Commissions.[15] In the interest of avoiding wrongful
convictions, the Scottish Commission noted that some countries have relaxed the
hearsay rule more for the defence than the prosecution.[16] For example, under the Federal
Australian Evidence Act 1995, statements of unavailable witnesses adduced by
the defence can be admitted without having to satisfy a separate reliability
condition which prosecution evidence would have to surmount.[17] The Supreme Court of Canada, in defining
the scope of a common law declaration against penal interest exception, held
that evidence admitted under this exception could only be used to exculpate the
defendant rather than for purposes of inculpation.[18]
8.12 It
is often thought that the proposal is required by international human rights
norms. In respect of the European
Convention for the Protection of Human Rights and Fundamental Freedoms (the "European
Convention"], the English Law Commission noted that
" … although
Article 6(3)(d) puts limits on the extent to which the prosecution may make use
of hearsay evidence, nothing in Article 6 restricts the use of hearsay evidence
by the defence."[19]
But while
it is one thing to say that a restrictive exclusionary rule impairs a
defendant's right to make full answer and defence, it is another thing to say
that an equitable relaxation of the same rule for the prosecution will
inevitably infringe a defendant's fair trial rights. In their respective reports, both the
English and Scottish Law Commissions came to the same conclusion that a
reformed hearsay rule that applies in the same manner to both defence and
prosecution evidence will not infringe the European Convention so long as there
are sufficient safeguards against the conviction of the innocent.[20]
8.13 The
Scottish Law Commission rejected the idea of differential treatment for
prosecution and defence, being unconvinced of its necessity or
desirability. The Commission wrote:
"One
consideration is that curious results might follow. The prosecution might be entitled to
cross-examine a defence witness on hearsay evidence he had given in chief which
the prosecution, had they led him as a witness, would not have been entitled to
elicit from him. In a trial where
there were co-accused, one accused might be entitled to elicit from a defence
witness hearsay evidence implicating a co-accused which the prosecution would
not have been entitled to lead."[21]
Aside from these practical problems, the Scottish Law
Commission also felt that it was:
" … necessary to
maintain or improve, as far as possible, the effectiveness of the criminal
justice system not only in acquitting the innocent but also in convicting the
guilty."[22]
The English Law Commission agreed, and expressed
concern at the ease with which a guilty defendant could be acquitted by raising
a reasonable doubt through " … the
use of manufactured or very low quality hearsay … .".[23]
8.14 Despite
some initial interest by one member, the Sub-committee ultimately rejected the
option of allowing a discretion to admit only defence hearsay. We agree with both the English and Scottish
Law Commissions that in principle differing standards of admissibility for
different parties are unacceptable.
As all of the shortcomings of the present hearsay rule impede the
prosecution, as well as the defence, to ignore the difficulties facing the
former would be unsatisfactory. The
public interest requires cogent and reliable prosecution evidence to be
received by the tribunal of fact in coming to an accurate verdict, particularly
in cases involving serious crimes. The
Canadian case of R v Khan provides an example of the possible
injustice that could result for the prosecution.[24] In this case, the defendant, a medical
doctor, was charged with sexually assaulting a 3½ year old girl while her
mother was in an adjacent private room.
Shortly after leaving Dr. Khan's office, the mother noticed a wet spot
visible on the girl's clothing, which was subsequently found to contain semen
and saliva. When asked about it,
the daughter, in language that bore the stamp of reliability, disclosed the
sexual assault. Had the Supreme
Court of Canada not liberalised the hearsay rule in this case to allow the
admission of the child's disclosure to her mother, the case could never have
been brought since the child was incompetent to testify at trial.
Recommendation 5
We recommend that any reforms of the law of hearsay in criminal
proceedings should apply in the same manner to both the prosecution and
defence.
Broad discretion to admit
- the South African model
8.15 In
1988,
(i) the
nature of the proceedings;
(ii) the
nature of the evidence;
(iii) the
purpose for which the evidence is tendered;
(iv) the
probative value of the evidence;
(v) the
reason why the evidence is not given by the person upon whose credibility the probative value of such
evidence depends;
(vi) any
prejudice to a party which the admission of such evidence might entail; and
(vii) any other
factor which should in the opinion of the court be taken into account[27]
The Supreme Court of Appeal of
"The
1988 Act was … designed to create a general framework to regulate the admission
of hearsay evidence that would supersede the excessive rigidity and
inflexibility – and occasional absurdity – of the common law position. In the result … the 1988 Act retained
'the common laws caution' about receiving hearsay evidence, but 'altered the
rules governing when it is to be received and when not', principally by
glossing the common law exceptions with the general criteria of relevance,
weight and the interests of justice …"[28]
Recommendation 6
We recommend that the South African model, which admits hearsay on an
entirely discretionary basis "in the
interests of justice", be rejected because of concerns with the
open-endedness of the discretion.
The three main options
Option 1 ("the English
model"): Wide “pigeonhole exceptions” with a narrow discretion to admit
8.17 In
1997, the English Law Commission published a comprehensive report with
recommendations for reforming the hearsay rule in criminal proceedings. The recommendations were adopted in the
Criminal Justice Act 2003 (
(a) a
re-definition of hearsay evidence that excludes from its ambit implied
assertions;[29]
(b) preservation
of some established common law exceptions, such as public information,
reputation, res gestae, confessions and admissions, common enterprise,
and expert evidence;[30]
(c) admissibility
of hearsay statements from five categories of unavailable witnesses (the
declarant is dead, unfit to be a witness, outside the United Kingdom, cannot be
found, or is unavailable due to fear).
Unavailability due to fear can only be the basis of discretionary
admission "in the interests of
justice";[31]
(d) admissibility
of written police statements of persons who cannot reasonably be expected to
have any recollection of the matters dealt with in the statement;[32]
(e) a narrow
residual discretion to admit hearsay "in
the interests of justice";[33]
(f) a
discretion to exclude hearsay evidence if "to admit it would result in [an] undue waste of time";[34]
(g) the judge's
power in jury trials to stop the case where a conviction based wholly or partly
on unconvincing hearsay evidence would be unsafe.[35]
8.18 While
we agree with certain aspects of the English Law Commission's proposals, we have
reservations about others, particularly the breadth of the exception for
unavailable witnesses and the terms of the residual discretion to include.
8.19 Under
the English model, a declarant's out-of-court statement is automatically
admissible if he is satisfactorily identified and
(a) is
dead;
(b) is
unfit to be a witness because of his bodily or mental condition;
(c) is
outside the
(d) cannot
be found although reasonably practicable steps have been taken to find him; or
(e) cannot
reasonably be expected to have any recollection of the matters dealt with in a
written statement made for the purpose of a criminal investigation.[36]
Further, with the leave of the court, out-of-court
statements of a person who through fear does not give oral testimony of the
relevant evidence may be admitted if the person is satisfactorily identified
and it is in the interests of justice to do so.[37]
8.20 Statements
admitted under these exceptions do not come with any guarantees as to
reliability. The principle behind
their admission is merely necessity due to the absence of the declarant's oral
evidence at trial. These
exceptions, although offering a fair degree of certainty and consistency in
decision-making, have an over-inclusive effect by allowing in all types of
relevant evidence, including unreliable hearsay evidence. The English model has three mechanisms to
correct this over-inclusiveness.
First, there is the express preservation of the power under section 78
of the Police and Criminal Evidence Act 1984 ["PACE"] to exclude
evidence affecting the fairness of the trial. Secondly, there is a newly enacted
discretionary power to exclude hearsay evidence under section 126(1) of the
Criminal Justice Act 2003. Section
126 of the Criminal Justice Act 2003 provides as follows:
“(1) In criminal proceedings the court may refuse
to admit a statement as evidence of a matter stated if:
(a) the
statement was made otherwise than in oral evidence in the proceedings, and
(b) the court
is satisfied that the case for excluding the statement, taking account of the
danger that to admit it would result in undue waste of time, substantially
outweighs the case for admitting it, taking account of the value of the
evidence.
(2)
Nothing in this Chapter prejudices
(a) any power of a court to
exclude evidence under section 78 of the Police and Criminal Evidence Act 1984
(c 60) (exclusion of unfair evidence), or
(b) any other power of a
court to exclude evidence at its discretion (whether by preventing questions
from being put or otherwise).”
Finally,
there is another new power of the judge in jury trials to stop the case at any
time after the completion of the prosecution’s case if the case against the
defendant is based wholly or partly on a statement not made in oral evidence in
the proceedings, and the hearsay evidence is so unconvincing that, considering
its importance to the case against the defendant, his conviction of the offence
would be unsafe.[38]
8.21
8.22 Given
the breadth of the exception for unavailable witnesses, the new discretion to
admit hearsay was intended by the Law Commission to be used only in narrow
circumstances. Where a hearsay
statement does not fit within any of the specific exceptions, the judge has a
power to admit the statement in the interests of justice, such as where, for
example, the evidence was particularly cogent of the defendant's
innocence. Section 114 of the
Criminal Justice Act 2003 sets out the terms of the power as follows,
"(1) In
criminal proceedings a statement not made in oral evidence in the proceedings
is admissible as evidence of any matter stated if, but only if—
…
(d) the
court is satisfied that it is in the interests of justice for it to be
admissible.
(2) In
deciding whether a statement not made in oral evidence should be admitted under
subsection (1)(d), the court must have regard to the following factors(and to
any others it considers relevant)—
(a) how
much probative value the statement has (assuming it to be true) in relation to
a matter in issue in the proceedings, or how valuable it is for the
understanding of other evidence in the case;
(b) what
other evidence has been, or can be, given on the matter or evidence mentioned
in paragraph (a);
(c) how
important the matter or evidence mentioned in paragraph (a) is in the context
of the case as a whole;
(d) the
circumstances in which the statement was made;
(e) how
reliable the maker of the statement appears to be;
(f) how
reliable the evidence of the making of the statement appears to be;
(g) whether
oral evidence of the matter stated can be given and, if not, why it cannot;
(h) the
amount of difficulty involved in challenging the statement;
(i) the
extent to which that difficulty would be likely to prejudice the party facing
it."
8.23 Notwithstanding
the enumerated list of factors to consider in section 114(2), the main
difficulty lies with the vague terms of the discretion in section
114(1)(d). As with the
"the
discretion is handed over entirely to the court as to whether the hearsay
evidence should be admitted, subject only to subsection (2), where there are
certain factors for the judge to bear in mind. Members of the Committee may feel that
they are fairly obvious matters, but the provisions are extremely vague and broad
and introduce into the law of evidence in criminal cases hearsay evidence
wholesale. It can never be certain
for a defendant that he will not face evidence of this sort; whether a judge
admits it or not, it will be a matter for application, either pre-trial or
during the trial. We object in principle
to the introduction of hearsay evidence of that type."[40]
We echo these concerns and favour a more rigorous and
specifically defined discretionary power that is expressly tailored to the
underlying principles for admitting hearsay evidence.
Recommendation 7
We recommend that Option 1 (the English model) be rejected for two main
reasons: its categories of automatic admissibility provide insufficient
assurances of reliability and the terms of the residual discretion to admit
hearsay are too open-ended and vague.
Option 2 ("the United States
8.24 The
present
(a) a
re-definition of hearsay evidence that excludes implied assertions;[42]
(b) retention
of the blanket exclusionary rule in codified form;[43]
(c) abolition
of the common law exceptions;[44]
(d) a
codification of 28 “pigeonhole exceptions”, most based on the old common law
exceptions. Statutory exceptions
are divided into two categories: those applicable where the availability of the
declarant as a witness is immaterial, and those applicable where such
availability is material but the declarant is unavailable;[45]
(e) a residual
discretion to admit hearsay where the statement has "equivalent circumstantial guarantees of trustworthiness" to
the “pigeonhole exceptions” and
(i) the
statement is offered as evidence of a material fact;
(ii) the
statement is more probative on the point for which it is offered than any other
evidence which the proponent can procure through reasonable efforts; and
(iii) the general
purposes of these rules and the interests of justice will best be served by
admission of the statement into evidence.[46]
8.25 Several
Sub-committee members were initially impressed with the
8.26 During
the Sub-committee’s deliberations , it readily became apparent that the task of
codifying each of the common law exceptions would be a major one.[47] Doubts were cast on the
feasibility of such an exercise. It
was generally felt that it would not be possible to cater for all justifiable
circumstances. Members of the
Sub-committee were also concerned that new statutory provisions might give rise
to a new set of interpretative problems, with possible ramifications beyond the
law of hearsay, such as the law of confessions and statements of
witnesses. If a key aim of reform is
to simplify the law and render it more coherent, then it would seem sensible to
minimise (rather than increase or maintain) the number of “pigeonhole
exceptions”.
8.27 We
identified two alternatives to full codification of existing exceptions. If, because of shared rationales,
existing exceptions were covered by the terms of an inclusionary discretion,
the existing exceptions could simply be abolished. The idea that any specific exceptions should
be subordinate to the general principles that underlie the admissibility of
hearsay has already been reflected by the courts in
8.28 Codification
also assumes that there is a need to abolish the common law in its
entirety. It ignores the
possibility that some common law rules work perfectly well and can be left
alone. The English model employs
this strategy of retaining some of the existing law, and we agree that it may
be preferable to preserve some common law exceptions rather than to codify or
abrogate them. [50]
Recommendation 8
We recommend that Option 2 (the