HEARSAY EVIDENCE & ACCEPTATION IN SOCIETY

QUESTION

(1)   Get w2 out of the way.  What she heard was not contemporaneous.[1] ……….Of the degree of contemporaneity required in criminal cases “For identification purposes in a criminal trial the event with which the words sought to be proved must be so connected as to form part of the res gestae, is the commission of the crime itself, the throwing of the stone, the striking of the blow, the setting fire to the building or whatever the criminal act may be.”[2]

SOLUTION

As we see in the present case there is no direct evidence against the accused but in the rules of evidence there is a rule of hearsay evidence which will be applied to prove the guilt of accused. Hearsay evidence is a type of evidence that can be trusted upon in certain circumstances. These evidences are based upon testimony of the witnesses who have actually not seen the event of the crime taking place but have the exact facts and the entire chain of occurrence by hearing it from some other person.

Now in the instant matter as we see there were no other people present at the place where the crime took place but the entire evidence and testimony of the witnesses is based on a hearsay fact. We have to analyze the rules of hearsay evidence to defend or adjudge the guilt of the accused.

Hearsay Evidence and its Acceptation:

 In legal parlance nothing is certain everything has to be proved on probabilities. In other fields events which have already occurred are difficult to repeat but as we see in legal parlance it is context specific event thus the probability rule is authentic in these types of events.

As we see the significance of probabilities in legal disputes are important because during the occurrence of the event the people deciding the dispute like the judges and the lawyers are not present thus they have to rely on probabilities and hearsay evidences to adjudicate the disputes. It is always necessary for the judges to decide upon the disputes after taking all the evidences into consideration but it is also important that the creditability of the evidence is tested properly before deciding a dispute upon that evidence[1]. Basically evidences are always incomplete they became complete only when their creditability is tested and chain of events is completed based upon the evidences and to complete the chain the events the probability theory under the evidence is must[2].

The creditability of the witness is always to be tested and the testimony by two or more witnesses must be corroborative. As we have seen in Collins Case[3] where the issue in hand was the recognition of the of the suspect based upon the facial features for which a statistician was called and he determined the suspect putting some of numerical theory to differentiate between facial features of two similarly looking persons which was criticized.

So if we now look at the matter it is to be decided by the hearsay rule which is to be determined by the court after testing its creditability. The hearsay rule was always criticized as like the numbers rule as the rule is not very authentic when it comes to deciding the case as there are no ways to test a hearsay evidence as it is not seen by the eyes and people have their own versions which is different as every person has a different mindset but still many a times it is considered as an authentic evidence to decide legal disputes and priority is given to the rule of hearsay.

As we have seen many scholars have argued against the rule but still courts were always inclined to decide the cases based upon the rule in the absence of any other evidence. We have to examine the hearsay rule in this case to see whether the evidence in the case is creditable.

As we see the general rule in accepting any hearsay evidence is if the evidence matches the definition and it is inserted for a specific purpose then the evidence is excluded unless it fits within an exception. Moreover the statute also certifies that if the evidence is prior representation and it is used to prove the truth of the P.R. then the evidence is excluded[4].  As the statute clearly excludes the hearsay evidences but there are often possible exceptions which comes to the rescue of this rule and were often used to accept hearsay evidences.

Hearsay evidences should not fall under statutory exceptions to be accepted. Thus we have to see whether in the instant case the evidence falls under the statutory exceptions. As we see the statute it is clearly provided that if the hearsay representation is made and it is proved that the evidence is not fabricated then it falls under the exception as provided by the statute and ought to be accepted by the court[5]. The court has the power and discretion to decide about the creditability of witnesses testimony and often courts decide this fact on the basis of the consistency of the prior statement made[6].

Moreover the process of reexamination is also taken as the tool to prove the creditability of the witness. As it the process that enables the defense to ask possible facts which enables them to defend the accused and prove the authenticity of the event that occurred. The statute has also the specific provision in place for reexamination[7]. It proves as a tool to prove the authenticity of the evidence thus making the evidence creditable with the chain of circumstances.

The process of reexamination is used to prove to the court the compete truth which sometimes is felt incompletely proven even after the process of cross examination. The process removes ambiguities and uncertainties of the evidences sought to be proven and filtered evidence which the court can consider to accept comes out after the process is completed.

As we see in the case of R v Phair[8] “It is well established that it is proper in re-examination to elicit from the witness facts which explain away or qualify facts which have been elicited in cross-examination which are prejudicial to the witness’ credit or from which prejudicial inferences could be drawn”.

Thus by the process the courts comes to a very clear decision about the exact facts of the case.

Now as we see in the instant case the entire case is based on hearsay testimonies of the witnesses thus as a counsel for the accused it is always relevant to cross examine and reexamine the witness to prove that the hearsay evidence does not come under any of the statutory exceptions. For that it is always relevant to see that the authenticity of the statement is correct.

Now if we see the evidence law in Australia we see that the principle to prove the fact beyond reasonable doubt is followed like the other commonwealth countries. Moreover the rules of evidence here are concerned with proving how the evidence is presented in the court and whether the information is authentic and can be admitted.  Moreover the rules of admission of the evidence are very regulated as there may be even circumstances where the direct testimony of the witness is also admitted. Evidence which that suggests, or from which it can be inferred, that a particular fact occurred can be admitted.

Now if we see the hearsay evidences they are objectionable only when if it is tendered to prove the truth of what was said. It may be admissible if it is intended to prove not the truth of what was said but rather merely the fact it was said.

Moreover if we see the statute we see that Section 59 and 60 of the Evidence Act 1995 deals with the admissibility and exception to the hearsay rule. The legal system does not recognizes the admissibility of the hearsay evidence under Section 59 of the act unless it falls under the exceptions under Section 60 of the act. Thus only the hearsay evidences which are intended to prove the fact other than the fact that is intended to be proved by the representation are admissible under the statute.

The statute also gives the discretion to the judges regarding admissibility of any evidence according to its authenticity so that no party is affected by illogical evidences[9]

Moreover judicial approaches to the rule explicitly clears the ambiguity and helps to identify the admissible evidences in hearsay rule. As we see in the case of Daniel v Western Australia[10] in this case the issue was regarding admissibility of the expert’s opinion in the hearsay evidences where it was held that admission of the same would be subjected to Section 135 and 136 of the act where it is to be seen that admission of such should not incur the danger of party being implicated falsely of the basis of that evidence[11].

We have also seen that based upon the judicial opinion courts have evolved the categories of exception under the hearsay rule. As we see the evolution started with the case of Walton v R[12] where the inherent liability exception was first articulated where it was opinioned that “The hearsay rule should not be applied inflexibly. When the dangers which the rule seeks to prevent are not present or are negligible in the circumstances of a given case there is no basis for a strict application of the rule. Equally, where in the view of the trial judge those dangers are outweighed by other aspects of the case lending reliability and probative value to the impugned evidence, the judge should not then exclude the evidence by a rigid and technical application of the rule against hearsay. Especially in the field of implied assertions there will be occasions upon which circumstances will combine to render evidence sufficiently reliable for it to be placed before the jury for consideration and evaluation of the weight which should be placed upon it, notwithstanding that in strict terms it would be regarded as inadmissible hearsay”.

In the case of Benz v R[13] where the circumstances of woman being surprisingly caught after participating in the murder and the conviction was to be based upon a hearsay evidence of a stranger. It was opinioned that “the situation of being quite literally ‘caught’ by surprise would tend to increase the probability of concoction given the declarant’s obvious motive for avoiding detection or suspicion”[14].

Now if we come to the exact circumstances of the case it is seen when the victim was coming out she was witnessed by Ms. Smith and she gave the statement in the trial only upon hearing the story from the victim’s side. Thus it would be pertinent for the court to decide that testimony is not fabricated as it has to take the exact circumstances into account which would definitely include the behavior of the victim which was surely alluring and dubious as she has only allured the accused to move to secluded place and started initiating alluring conducts which was not enforced upon her by the accused. Moreover the evidence also has to be weighed upon the conduct of the accused and the victim which clearly suggests that conduct of the victim was very dubious and as per the statute the hearsay evidence would not act as reliable evidence in this case.

Thus after analyzing the rules as presented in the statute it would be very unreliable to consider the testimony of Ms. Brown in the case.

References:

1. Evidence Act, 1995, NSW, viewed on April 17^th 2012 <http://corrigan.austlii.edu.au/au/legis/nsw/consol_act/ea199580/>
2. Jeremy Gans and Andrew Palmer, Uniform Evidence, (2010).
3. Andrew Palmer, Proof – How to analyse evidence in preparation for trial, (2^nd ed 2010)
4. Expert Evidence in Native Title Claims viewed on April 21, 2012 <http://www.aiatsis.gov.au/ntru/docs/resources/issues/ExpertEvidence.pdf>.

1. New Exceptions or Principled Determinations: The Unreliable Response of the Australian High Court to Reform of the Hearsay Rule viewed on April 21, 2012 <http://www.murdoch.edu.au/elaw/issues/v10n4/collins104_text.html>