Hearsay
evidence is basically evidence that is heard by someone and said back. In
layman terms it is known as the common gossip which swirls around without any
substance. As such, the courts have been very reluctant to admit hearsay as a
substantial form of evidence.
Section
60 of the Evidence Act 1950 provides that oral evidence must be direct but
subsection(3) provides that if an evidence is indirect but it is a material
fact, the court may call for the inspection of that evidence. This indirect evidence is also known a
hearsay evidence.
Sarkar on Evidence defines hearsay as follows:
“
Hearsay is secondary evidence of any oral statement eg when witness A says that
B told him about the happening of event X (though B is not before the court). A’s
assertion about event X being not based on his own observation he is not
qualified to speak to it. B’s assertion made out of court cannot be accepted
because t cannot be subjected to cross examination and other tests. But if the
object is only to prove B’s assertion of the event (and not to prove the
event), A is competent to speak to it and it may be received if it has any
relevancy in the case”
Several
cases has also analyzed to what extent hearsay can be admitted.
In the
case of Subramaniam v PP it was said that “ it
is hearsay and inadmissible when the object of the evidence is to establish the
truth of what is contained in the statement. It is not hearsay and is
admissible when it is proposed to establish by the evidence, not the truth of
the statement, but the fact that it was made. The fact that the statement was
made, quite apart from its truth, is frequently relevant in considering the
mental state and conduct thereafter of the witness or of some other person in
whose presence the statement was made.”
Similarly in
Ratten v R it was held “ the mere fact
that evidence of a witness includes evidence as to words spoken by another
person who is not called is no objection to its admissibility. If the speaking of
the words is a relevant fact, a witness may give evidence that they were
spoken. A question of hearsay only arises when the words spoken are relied on ‘testimonially’,
that is, as establishing some fact narrated by the words”.
In Leong Hong
Kie v PP it was held that the proposition in Subramaniam v PP can only be
accepted subject to the condition that the statement must be directly relevant
to the state of mind of the witness to whom it had been made.
The
exceptions to the hearsay rule can be found in several sections inter alia
sections 32, 33 and 73 A of the act. There are also cases that are cited in
those sections.
In
Lim Ah Oh & Anor v R it was held that “it
is commonly stated in English law that what is stated in the presence of a
party is evidence against him. It should be noted that this is not now to be
treated as an exception to the rule against hearsay but as evidence of a factum
probans, in light of the reaction of the
party to what is said.”
In Tee Eok Kee v
Tan Chiah Hock, it was held that “ it is
clear law, that not only admission made personally by the party, but also
admissions by those in privity with the party are admissible as to exception to
the hearsay rule.”
From the sections and cases stated above, it
can be seen that the admissibility of hearsay evidence is quite wide. The general
rule of Evidence Law which is that if a thing is relevant it can be admissible
also applies to hearsay evidence. Thus it can be said that hearsay will not
apply unless it is relevant to the case at hand. Hearsay can be a strong
circumstantial evidence if it is so attached to the material facts of the case
and it helps to connect the loose ends in the chain of evidence.
By: Laviania a/p Pathmanathan (A132492)
No comments:
Post a Comment