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Conduct, relevance and the hearsay rule

Published online by Cambridge University Press:  02 January 2018

Michael Hirst
Michael Hirst*
Affiliation:
University of Wales, Aberystwyth
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Extract

‘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.’

Type
Research Article
Information
Legal Studies , Volume 13 , Issue 1 , March 1993 , pp. 54 - 68
Copyright
Copyright © Society of Legal Scholars 1993

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References

* (Lord Griffiths (dissenting) in R v Kearly [1992] 2 All ER 345 at 348.)

1. See Ratliff, , (1983) 2 Civil Justice Quarterly, 257 Google Scholar.

2. [1992] 2 All ER 345.

3. [1965] AC 1001.

4. [1992] 2 All ER at p 348.

5. Unless perhaps they did not believe the testimony of the police officers themselves.

6. (1988) 86 Cr App R 105.

7. Lord Ackner preferred to rely on irrelevance; Lord Bridge relied on the hearsay rule. See further below.

8. Cross on Evidence (5th edn) p 479.

9. [1986] AC 41 at 54.

10. This remains applicable as the general rule, even though many situations in which it would previously have applied now fall within the scope of a modern statutory exception to the rule.

11. See also Sparks v R [1964] AC 964; R v Turner (1975) 61 Cr App R 67; and R v Harry (1988) 86 Cr App R 105.

12. [1992] 2 All ER at 348.

13. Similar views were expressed in the 11th Report of the Criminal Law Revision Committee in 1972(Cmnd 4991, at paras 229–248).

14. [1956] 1 WLR 965, esp at 970.

15. Even if there is such an assertion, the assertion can only be hearsay if the court is being invited to accept it as true. See R v Sharp [1988] 1 WLR 7.

16. [1937] AC 220.

17. [1952] AC 480.

18. [1992] 2 All ER at 364.

19. Because of the res gestae doctrine. See further below.

20. See for example R v Sharp (above), where their Lordships adopted and approved the classic definition provided in Cross on Evidence (6th edn) p 38.

21 The principal cases are considered below; the academic literature on the subject includes articles by Cross (1956) 72 LQR 91; Weinberg (1973) Melb ULR 268; Guest (1985) 101 LQR 385; Ashworth & Pattenden, (1986) 102 LQR 292.

22. McGregor v Stokes [1952] VLR 347.

23. US v Zenni (1980) 492, F Supp 464.

24. Davidson u Quirke [1923] NZLR 552.

25. [1972] AC 378.

26. Ibid, at 388.

27. Emphasis added.

28. (1837) 7 Ad & El 313.

29. (1988)86 Cr App R 105.

30. [1992] 2 All ER at 362.

31. [1992] 2 All ER at 354.

34. (1992) 142 NLJ 1194.

33. Cf Etim v Hatfield [1975] Crim LR 234.

34. Just as John Straffen betrayed his involvement in Linda Bowyer's death by denying it prior to anyone having suggested that it had happened. (R v Straffen [1952] 2 QB 911). Straffen shows that such knowledge can be betrayed by lies as well as by true statements, and this is why it is not really a question of hearsay at all.

35. Their opinions would indeed be non-expert opinions, and inadmissible on that ground alone. Some of the examples cited, obiter in Wright v Tatham (notably that of the sea captain who boards the vessel after inspecting it, thereby supposedly ‘asserting’ it to be seaworthy) may be harder to dismiss in that way, but are arguably wrong.

36. 12th edn, art 1.

37. [1973] AC: 729, at 756.

38. [1986] AC 41.

39. See further Diane Birch in Criminal Law: Essays in Honour of J. C. Smith, p 24.

40. The problem was that the defence were not allowed to deal with the content of the calls for the appellant's flatmate, and could not therefore show that the callers were seeking to buy drugs from him, rather than from the appellant.

41. The examples of circumstantial evidence are all derived from the facts of Kearley itself. There was also direct evidence of the supply of amphetamine to Fry, but this was not in itself evidence of commercial supplying.

44. If the visitors clearly (perhaps by their own admission) expect to find microfilm in a container in the garden shed, is this really nothing more than evidence of their beliefthat the suspect is working for them, and accordingly irrelevant on the question of whether the suspect is a spy? Is that a realistic or logical way of looking at the situation?

43. As where the question is one of ownership, and the dog greets the alleged owner in such a way as to demonstrate it, or where the behaviour of a tracker dog is used to indicate the path taken by a suspect.

44. [1992] 2 All ER at 349.

45. As in R v Andrews [1987] AC 281.

46. R v Bliss (1837) 7 Ad & El 550; Howe v Malkin (1878) 40 LT 196.

47. [1992] 2 All ER at 380.

48. (1990)91 Cr App R 84.

49. The evidence concerned was arguably admissible on other principles: see Andrews & Hirst, Criminal Evidence (2nd edn) para 17.28.

50. (1872) 12 Cox CC 230.

51. [1992] 2 All ER at 380.

52. In particular, Lord Bridge interpreted Ratten as if it turned wholly on the res gestae principle, whereas the Privy Council had not accepted the need for the invocation of that principle, because the evidence was not considered to be hearsay in the first place.

53. This would appear to be the way in which the evidence in Harry would now be regarded.

54. [1991] Crim LR 833.

55. This was arguably wrong, because on the face of it s 76(1) makes all confessions admissible, save for those which are excluded under s 76(2) or (3); and sub-ss (2) and (3) can only apply to evidence tendered by the prosecution. In other words, even an improperly obtained confession might be admissible on behalf of a co-accused. See Hirst, [1989] Crim LR 603.

56. I am grateful to members of the criminal law section of the SF'TL who commented on an earlier draft of this paper at the meeting in Oxford in September 1992.