Please note that this site is now an archive site and is no longer being updated. Updates ceased in May 2003.

For current information please go to


  Evidence - WEEK 12 - COURSE NOTES


Corroboration and Hearsay


CONTENTS: What is Corroboration

When Corroboration is Required by Law

Where Corroboration is not Required but a Warning is

Evidence of an Accomplice

Other Cases that Refer to Corroboration

Definition of Hearsay

Dangers of Hearsay Evidence

Hearsay and Non Hearsay

When and How Made

The Purpose of the Statement

Non Hearsay Statements

Statement as evidence of identity or origin

Three Hearsay Problems


The common law has been very particular about the kinds of evidence that are admissible in court. Hearsay, opinion, character and other sorts of evidence are excluded unless they fit within exceptions. We could think of these rules as rules about the quality of evidence. That is, we could say that the quality of hearsay, opinion or character alerts us to the fact that the particular evidence may not be admissible.

However, just as the common law has been strict about the quality of evidence, it has been fairly liberal in rules about the quantity of evidence. In other words, if evidence is admissible, it does not take very much of it to lead to a finding. Generally a court is able to act on the evidence of one credible witness. This is so even if there is an opposing witness who is not believed. In the vast majority of civil cases a trier of fact (judge, assessors or jury) can make a finding in favour of a plaintiff on the basis of only one witness. Whether a trier of fact will do so in any particular case is a matter of credibility and weight.

In a criminal case it is usually the case that a conviction can be based on the credible evidence of only one witness. The exceptions to this are where we find the role of corroboration and the rules governing it.

One sometimes becomes aware of popular misconceptions about the need for corroboration. In a recently overheard a conversation about an alleged assault, it was said that a person was assaulted but there were no witnesses and therefore somehow this was insufficient to lay a charge or obtain a conviction. The person who said this did not understand that in criminal cases, except where there is a specific rule to the contrary, it is possible to convict a person on the basis on the evidence of only one witness (where that person’s evidence is sufficient to cover all of the elements of an offence). For instance, a victim can give evidence of an assault and if believed, this will be enough evidence to make a finding, beyond a reasonable doubt that the offence was committed by the accused. Even if the accused in such a case chooses to give evidence and refutes the allegation, if the accused’s evidence is disbelieved, there can be a conviction.

The same is true of most offences. As long as the evidence of one witness (whose evidence covers all of the necessary elements) is believed, it will be sufficient. There is no general rule of law that it takes more than one witness to convict of criminal cases. The same is true in civil cases.

However, this principle is not absolute. The law has created exceptions. It recognizes that there are occasions where it would be dangerous to convict on the evidence of a witness unless the evidence is supported by some other independent evidence. These exceptions are where corroboration is required. The rules of evidence that require corroboration are based on statute.

There are other rules that fall short of requiring corroboration but which merely require the trier of fact to be warned (or to warn him or herself in the case of a judge sitting alone) about the danger of convicting in the absence of corroboration. These rules are sometimes based on statute and sometimes they are matters of practice which have evolved into rules of common law.

What is corroboration

Murphy takes a very common sense view of what corroboration is. Other writers are more technical and specific to the point that some would say that the concept is incapable of exact definition (“See Carter, page 191. It is difficult to generalize about the nature of corroboration”).

We will take Murphy’s approach. Corroboration means support or confirmation. “In relation to the law of evidence, it refers to any rule of law or practice which requires that certain kinds of evidence be confirmed or supported by other, independent evidence, in order to be sufficient to sustain a given result (page 505) .”

If we are wondering whether what someone says is true, we are more likely to believe it when it is supported by some other evidence. This is the commonsense notion upon which the rules of corroboration are based.

When corroboration is required by law

When corroboration is required, it is always a statute that requires it.

Unsworn evidence of a child

In the Pacific, as we have already seen, the unsworn evidence of a child is insufficient in many jurisdictions for a criminal conviction of an accused. (This is no longer the case in the UK and Murphy accordingly devotes little space to this.) This means that where a child testifies without taking an oath, the testimony alone, even if believed is insufficient. It is not a case of just giving a warning about the dangers of convicting without corroboration. It cannot be done.

See for example s. 83(3) of the Vanuatu Criminal Procedure Code which follows on the provision enabling a child to give unsworn evidence.

“(3) Where evidence admitted by virtue of subsection (2) is given on behalf of the prosecution in any proceedings, the accused shall not be liable to be convicted of the offence unless that evidence is corroborated by other material evidence.”

A case that we have already looked at in other contexts provides us with an example of the operation of this rule in the Pacific.

Fiji AG v Gopal (1967) 13 FLR 65

The court held that corroboration of the child’s identification of the accused was required. (It did not say why but presumably because of the CPC requirement that no accused be convicted solely on the unsworn evidence of a child). In this case, the accused lied to the police in that he said, before his arrest that he had “no opportunity” to commit the offence. The appeal court cited the case of Credland v Knowler (1951) 35 Cr. App. R. 45: “ [A] lie told to the police may be corroboration if it gives rise to an inference in support of the complainant’s evidence or if it gives a ‘different complexion’ to the opportunity to commit the offence”. The magistrate should therefore have decided whether the lie was proved and then determined if it was corroboration.


Most penal codes create an offence of treason – even though it is rarely if ever charged. Most contain a statutory provision that there must be at least 2 credible witnesses before a conviction can be made.


Similarly, perjury is another codified offence which, in most if not all cases requires corroboration as to the falsity of the evidence. That is, there must be corroboration of this one specific element.

Paternity cases

In civil proceedings where paternity is an issue, most statutes provide that there must be corroboration to support the mother’s testimony that the respondent is the father.

In Fiji, there is a case that illustrates this statutory requirement.

Fiji Moidin v Meli (1975) 21 FLR 128

This is an appeal by a putative father of a finding of paternity by a magistrate. The first issue is that of corroboration (not whether corroboration is necessary in such proceedings – one may suppose from the judgment that it is) but what constitutes corroboration. Specifically, can an opportunity to have a sexual encounter be corroboration of the sexual encounter? The court after considering UK cases decides that it can but distinguishes between opportunities that the parties inadvertently find themselves in or which occur in the normal course and opportunities that are contrived by the parties. Where parties contrive to create an opportunity to have sex, it can be corroboration. That is, the mother’s evidence that sexual intercourse took place can be corroborated by evidence that the parties deliberately arranged to be alone together. If being alone together was something that happened by chance, then it is not corroboration. Contrivance was the case here – the parties went off alone in a taxi that the appellant was driving after meeting in Lautoka. “…it is apparent that although the meeting between the appellant and respondent was accidental they took advantage of it by arranging to be alone in the taxi. It was not a situation thrust upon them by way of employment or by circumstances over which they had no control. It was chance meeting which they used in order to spend time together without the intrusion of third parties.” The second useful issue from an evidential point of view concerns the gestation period and the use of judicial notice to make a finding about it.

See also section 10 of the Samoa Maintenance and Affiliation Act. 14 –22

Where corroboration is not required but a warning is

Even where there is no statutory provision for corroboration, there are certain rules that recognize the danger of convicting (or in some cases making a finding of liability in a civil case) without a warning by the judge to a trier of fact. Where the judge is the trier of fact, it is common for the judge to state on the record that he or she is giving a self warning about the dangers of convicting without corroboration – specially where the judgment goes on to convict.

Where there is a jury or assessors, the warning would be given to them.

Sexual offences

There is no rule that the testimony of a victim of a sexual offence must be corroborated. However, there is a rule of practice that a warning must be given to the trier of fact to the effect that it is dangerous to convict without corroboration.

Nauru Republic of Nauru v Kataia Crim No. 4, 1977

The complainant in a rape case was forcibly held by the accused in his room. When the police came and released her, she complained of rape. The accused was charged. In his defence, he gave evidence that he held the girl because her sister and others (who had left earlier without the complainant) had agreed to pay for the beer but had not done so. There was no corroboration of the complainant’s evidence. The court held that recent complaint is not corroboration. The court noted that it is rare to convict on a rape case without corroboration. It was not prepared to do so in this case.

A Samoan case illustrates very well the idea that a conviction can be based on the uncorroborated evidence of a victim if the proper warning is given and if the trier of fact is satisfied beyond any reasonable doubt of the guilt of the accused.

Samoa Police v Gese Kuki s. 884/93

This is a case of statutory rape. The victim was 15 and therefore presumably gave sworn evidence. (The judgment is not explicit about this.) The evidence of the prosecution and the defence conflicted over the matter of identification. The prosecution evidence consisted partly of a signed admission/confession made after being advised of his right to a lawyer and cautioned by the accused which he later tried to withdraw. (the judgment at page 5 says that the statement was not objected to at the voir dire as non voluntary so it is curious that it was objected to at some other stage??) The accused said he only made the admission because of the fear of assault by the police if he did not co-operate. Nevertheless, the admission was introduced and weighed together with the other evidence. This resulted in a conviction. The court also dealt with the issue of corroboration. The victim said she identified the accused when the rape was taking place. Identification was the only serious issue. The court, after warning itself of the dangers of convicting without corroboration and noting that there was no corroboration as to identity, convicted the accused. The words of the self warning are set out on page 1 and 2 of the judgement. “In the case of sexual offence, the Court must bear in mind the solemn warning that it is dangerous to convict the accused solely on the uncorroborated testimony of the complainant. There is nothing really to prevent the Court from convicting the accused solely on the uncorroborated testimony of the complainant if it decides to accept that testimony. But if the Court does so, it must do it bearing in mind the solemn warning I have just referred to. I bear this warning in mind.” The conviction without corroboration is on page 10. “In all, whilst there seems to be no corroboration of the complainant’s evidence that it was the accused who had sexual intercourse with her, I am satisfied beyond reasonable doubt of her evidence on that point bearing in mind the corroboration warning and the identification warning already referred to in this decision.”

If a court is looking for corroboration, what evidence can provide it? The following is a case where material evidence satisfies the court.

Samoa Police v Fuatoafe (No. 1) 1992

This is a case of statutory rape of a niece by an uncle. The evidence of the child was of the events. She was attacked when in bed. The mother and another gave evidence. Their evidence was of the child’s scream, the ruined clothes, the blood stains, the defendant’s presence near the scene and the defendant’s apology later. The court recited that law about the danger of convicting without corroboration in sexual offences but found that there was corroboration in this case. It consisted of the child’s distress, the blood stains, and the defendant’s presence at the scene. It is not clear why the apology of the accused was not considered to be corroboration. In any event, this case had an abundance of corroboration and the court was able to convict.

In a Solomon Islands case where the victim gave evidence of rape, the court looked for corroboration and considered what might provide it.

Solomon Islands R v Foukwasi Criminal case No, 23 of 1991

The accused was charged with rape. He and the victim had sex when he allegedly forced himself on her on a beach. Two different versions emerged at trial. She said she was forced to have sex without consent. The accused gave her $1 after the sexual intercourse to “shut her up”. Evidence about the $1 and what happened to it was conflicting. The judgment implies that the absence of the coin as evidence is a flaw in the case (pointing to the need for real evidence – although one wonders why, if there was nothing special about the coin, its existence could be proved by witness testimony) The court seems satisfied that sex took place and the issue became consent. The court looked for corroboration of the witness’s testimony of lack of consent. “Even if I accept that sexual intercourse took place, the prosecution will have to show that it took place without the victim’s consent. I think the prosecution will have even a harder row to hoe here. The evidence that the victim’s clothes were wet and that she cried when she got home is not necessarily evidence of rape. A woman may do such things for a variety of reasons. This is why corroboration is called for in cases of sexual nature. The rule of practice on corroboration which has the force of law has been repeatedly applied in this jurisdiction.” The judge then goes on to cite R v Gere (1980/81) SILR 145. There was evidence that when she got home, the accused’s clothes were wet and she was crying. (“A woman may do that for a variety of reasons”) The accused made a statement (equivocally) admitting sex but not admitting lack of consent. “This is why corroboration is called for in cases of sexual nature. The rule of practice on corroboration which has the force of law has been repeatedly applied in this jurisdiction.” The judgment further cites Daly CJ in R v Gere SILR 145. The Chief Justice in that case noted that it was a case which required, “a strong warning of the dangers of convicting an accused on the testimony of such a complainant in the absence of what I prefer to call supporting evidence. That is evidence from a source independent of the complainant which supports her account as to the matters in dispute.” In Gere, the warning was given and a conviction took place. In this case, the warning was given and in the result, the judge was not even persuaded that sexual intercourse took place. Further, if it did, there was no proof of lack of consent. The judgment can be analyzed on simply on the basis of there being a reasonable doubt in the mind of the judge.

There has been some confusion about whether recent complaint can serve as corroboration of a victim’s testimony. (Recall that recent complaint is an exception to the rule against previous consistent statement.)

Vanuatu Public Prosecutor v Michael Mereka [1989-94] VLR 613

This is a judgment of d’Imcourt CJ. The Public Prosecutor appealed the decision of a magistrate to dismiss a charge of unlawful sexual intercourse with a girl under 20. The magistrate’s grounds for dismissal were that there was no recent complaint and no corroboration, both of which he considered were mandatory. In fact neither is required although both are admissible. The magistrate’s mistake illustrates how a no case submission is not about proof but only the existence of a prima facie case with some evidence going to each element of the offence. The court finds that there was no sufficient evidence that girl was under 20 and that she was a member of the household, both elements of the particular offence. The court goes on at length to deal with the issues of complaint and corroboration. The judgment contains a lucid explanation of both. The judge cites DPP v Kilbourne, and DPP v Boardman. A person can be convicted of a sexual offence without corroboration. The requirement is that the trier of fact be warned of the danger of doing so. (A fortiori, corroboration is not required at a committal hearing) Evidence of a recent complaint cannot be corroboration. “… the requirement that the corroborative evidence must come from a source which is independent of the witness whose evidence is to be corroborated.” (page 618) …“Corroborative evidence must be independent testimony which affects the accused by connecting or tending to connect him with the crime” Reading CJ in Baskerville [1916] 2 K.B. 658. Other cases are cited. It is noted that in the common law there is no absolute requirement for corroboration in relation to any offence although there may be statutory requirements. It is noted that evidence of recent complaint cannot be corroborative. This is because it is only evidence of consistency and not of the thing complained of.

Another case that deals with corroboration of the testimony of a victim of an alleged sexual offence and specifically whether recent complaint can be corroboration is:

Fiji Naulago v R Crim Appeal 12/79

This is an appeal of a conviction for indecent assault. The appeal court, in dealing with the issue of corroboration said: Of course the position is that corroboration of the complainant’s story should in practice always be sought and only in very special cases could a conviction be supported without it.” This pronouncement indicates that in Fiji, a conviction for sexual assault will almost never occur without corroboration. The magistrate in this case had found that both recent complaint and evidence of distress could each constitute corroboration. The appeal court found that the magistrate had erred in the first respect generally. That is recent complaint only goes to the consistency of the accused’s evidence, it cannot be corroboration. Further, in this case, where the accused knew her family disapproved of her being with the accused, and where her brother happened upon the scene, she cried out. Her distress in this case was characterised by the appeal court as really part of her complaint. In any event, it would have little weight, given the circumstances. (The court does not come out and say that distress can never be corroboration). The magistrate also disbelieved the accused’s testimony (denying rape). He regarded this as capable of being corroboration. Again, the appeal court disagreed. It held that while lies could be corroboration (in apparent disagreement with the court of appeal in Pillay); in this case, they resulted from the mere rejection of the accused’s testimony and were not corroboration. (There may be a distinction between where lies are exposed as lies in the testimony and where lies are a necessary consequence of the trier of fact choosing to reject the accused’s testimony.)

And, in the Khan case that we have already looked at in relation to other topics is an example of the rule that corroboration cannot be found in the recent complaint of a complainant.

Fiji/Vanuatu Khan v R (1973) 19 FLR 133

This case is an appeal of a conviction of the appellant for incest and rape of his 14 year old daughter. In addition to the other issues already examined in relation to this case, corroboration is dealt with. The evidence of the complainant is taken to be corroborated by the confession of the accused.

Evidence of an accomplice

An accomplice is one who in some way participated in the alleged crime, or was involved as a receiver (of stolen goods) or was involved in another crime with the accused that is relevant as similar fact evidence. A person can be an accomplice whether or not the person is actually charged with the crime, either jointly or otherwise. The concept of accomplice is therefore broader than the definition of co-accused.

An accomplice is someone whose evidence could be motivated by a desire to protect themselves. It is therefore considered dangerous to convict solely on the evidence of such a person. This is the basis for the rule requiring a warning about corroboration where the prosecution evidence comes from an accomplice.

It is a rule of law that before convicting an accused solely on the evidence of an accomplice, the trier of fact should be warned of the danger of doing so in the absence of corroboration. This is illustrated by a Fiji case.

Fiji Pillay v R. Crim. Appeal 29/81 C.A.

This is an appeal of a conviction for official corruption. The case concerned two issues centering on whether the accused had lied in his evidence and the effect of the lie that he told. The first issue is whether the judge actually told the assessors to disbelieve the accused. This of course would be making a finding of fact and therefore infringing on the domain of the assessors. The trial judge, in his address to the assessors said: “Bear in mind that that accuseds do not have to prove their innocence and that the fact that an accused has in your view told lies is not proof of guilt. An accused may tell lies to hide the guilt of some other person or for other reasons not connected with guilt on his part. However, guilty people do tell lies in order to try and conceal their guilt and you can take into account your opinion that an accused has told lies and weigh that aspect in the balance with the other evidence” One ground of appeal is that the judge instructed (or implied) that the assessors must find that the appellant told lies. A review of this passage by the appeal court lead them to accept this argument. (This shows the careful distinction of roles that must be preserved between the finder of fact and the judge. Here, the judge had allowed the evidence, but gone further and suggested to the assessors that the evidence constituted lies, something that was up to the assessors to determine.) The evidence that could be construed as lies by the finders of fact must be weighed. It might be a lie and it might not. If it is a lie, it might be evidence of guilt and it might not. However, in this case, the issue of corroboration arises. The only evidence against the accused, other than the possible lies, is that of co-accused. An accused cannot be convicted solely on the uncorroborated evidence of a co-accused (who falls within the definition of accomplice). The appeal court sets out, after reference to Archibald, that lies cannot constitute such corroboration.(But see Naulago above). Appeal allowed.

A Samoa case also illustrates the need for a rule that a warning be given before convicting on the uncorroborated evidence of an accomplice – or accomplices. This also illustrates that an accomplice is not necessarily charged with the offence.

Samoa Police v Tipi Magasiva Malaitai 1994

This is a charge of theft against an employee of a government ranch who took 3 cattle and sold them to a relative for an upcoming faalavelave. The central issue in the case is the “colour of right” (claim of right) defence of the accused. However, the court in determining the actus of the offence relies upon the evidence of several cowboys who assisted the accused in rounding up the cattle, killing them and taking them off the farm. The judge reminds himself of the danger of convicting on the uncorroborated evidence of accomplices. It was treated as a case without corroboration.

Other cases that refer to corroboration

Vanuatu Public Prosecutor v James Samuel Cr 375/82

Sometimes the word corroboration is referred to and used in weighing a case, even where there is no statutory rule of rule of practice concerning corroboration that pertains to the case.

This is a magistrate’s decision in a case where the accused was charged with assault (presumably causing bodily harm). There was conflicting evidence. The complainant’s evidence of his being punched by the accused, his dental injury and his subsequent treatment was accepted. The evidence of the accused, who was drunk and unclear of memory, was rejected where it conflicted. (In fact it was so vague that it hardly conflicted – a slap or a punch is about the only conflict). The case is an example of the job that a trier of fact often has in trying to weigh evidence and arrive at the truth. The magistrate referred to the fact that the dentist’s evidence corroborated the evidence of the complainant as to his injuries. (There is no indication that corroboration is called for in this case.)

This case is an example of where a magistrate might have convicted without corroboration and without a warning concerning its absence but found that corroboration did exist and used it in weighing the evidence of the prosecution.

The following Solomon Islands case is not directly related to the issue of corroboration in the case of accomplice evidence. However, it can be said to relate to corroboration in a more general sense. Whether in a murder case, the production of the body, or at least evidence of its existence is required before a conviction for murder can be made.

Where conviction based solely upon the disputed confession of an accused, at least one court has held that there must be corroborative evidence. The following Vanuatu case is an illustration of this.

Vanautu (New Hebrides) Procurator General v Jaques Pala District Court No. 654 of 1979

The accused was charged with theft (of food) from a house and cruelty to an animal. The accused allegedly injured a dog. When apprehended, the accused made a confession in Bislama. It was translated and written in French. Section 15.1 of the Criminal Procedure Rules excludes confessions that are not written in the language they are given in. Also, the court noted that where an accused retracts a statement, even one that is ruled voluntary, it is dangerous to convict on the basis of the statement alone without corroboration. In the words of the court: “In dealing with a confession contained in an accused’s statement, a Court must be satisfied not only of the admissibility as evidence of the statement but also of the truth of the confession contained therein before convicting. In the instant case that the statement was admissible as evidence, the same having been retracted by the accused at the trial, some corroborative evidence was necessary to satisfy the Court of the truth of the confession contained therein. It is true that t Court may act solely upon an accused’s confession of an offence to convict him thereof, if satisfied of its truth but where an accused retracts or repudiates a confession the rule of prudence requires that a Court should not act thereon to convict unless there is evidence of a corroborative nature form other evidence….”

[COURT OF APPEAL, 1972 (Nimmo P., Marsack J.A., Gould J.A.), 12th, 23rd June]

Recent complaint: Upset, distressed, evidence of struggle. Complains to first person she comes across that the defendant tried to “catch hold of her”. Nothing about sexual assault. Does this diminish weight?

Did not complain of attempted rape to mother until end of the day. Too late for recent complaint. (Previous consistent statement)

Corroboration? See quote re: its purpose. It need only be consistent with the offence charged. It can be corroborative of the offence charged although it is equally corroborative of a lesser offence.

Criminal law-sexual offence-complaint-absence of specific reference to sexual nature of assault-complaint made to persons not members of complainant's family - corroboration-function of. Criminal law-witness-complainant in charge of attempted rape nearly fifteen years at time of giving evidence-evidence given upon oath-whether judge should have made prior enquiry as to her understanding of nature of oath-Criminal Procedure Code (Cap. 4 - B.S.I.P: Revised Laws 1969) s.134.
Criminal law-evidence and proof-corroboration-nature of-sexual offence.

[COURT OF APPEAL, 1974 (Gould V.P., Marsack J.A., Bodilly J.A.), 15th, 31st July]

This is an appeal from a decree nisi for divorce. The husband successfully petitioned on the grounds of adultery. The adultery was proved in part by the wife’s admissions. The issues of admissions, privilege and corroboration and presumption of legitimacy were raised.


Together with the question of privilege was argued the question of corroboration. It was argued that the confessions ought not to have been admitted because there was no sufficient independent evidence to indicate that they were true, for the wife was denying the truth of what she had said. Our attention was drawn to a number of authorities to the effect that confessions or admissions of adultery by a respondent must be jealously scrutinised. I do not think that there is any dispute regarding that general principle. It is also not disputed that the court may in certain cases act upon an uncorroborated confession of adultery where the surrounding circumstances indicate that the confession is true, (Getty v Getty [1907] P.D. 334), or where a wife may make a confession in circumstances where she has everything to lose. (Simpson v Simpson (1931) 146 L.T. 47). It seems to me that the real question here is whether the learned trial magistrate was justified in concluding from the circumstances disclosed by the evidence that the admissions relied upon were true. If one is to believe the husband, as the learned magistrate did, when he says that no sexual intercourse took place between himself and the wife before the 19th May 1972, then the medical evidence of both Dr Hobbs and Dr Duncan tend to support the truth of the wife’s original confessions, namely that the child which she was then carrying was not that of the husband. On the other hand if one does not accept the husband’s evidence as to that but accepts the wife’s evidence at the trial that the husband had sexual intercourse with her before the 19th May, then the same evidence supports the wife’s contention that her original confessions were untrue. It is to be noted that both sides in argument before the court sought support in the same evidence. The learned trial magistrate accepted the evidence of the husband as true, and not that of the wife, and in doing that found corroboration in the medical evidence. It is also clear that the three confessions were in each case wholly against the wife’s interests. Unless the wife had volunteered the confession to her husband in the first place there is nothing to show that the adultery need ever have come to light at all. Certainly the medical evidence, such as it is, could not of itself have established that the birth of the child was anything out of the ordinary. It was in any event a premature birth.”

Solomon Islands Lanemua v Reginam Criminal Case N. 27 of 1992

We have already examined part of this case in our discussion about presumptions (that an occupant is the lawful occupant when found sleeping in the house with her children.

The second part of this appeal deals with corroboration and the warning that is required before convicting of a sexual offence without it. The judge says on page 4 that “The danger of convicting on uncorroborated evidence in sexual offences cannot be minimised.” He goes on to quote from R. v Henry and Manning (1969 53 Cr. App. R. 150 per Lord Justice Salmon at 153:

“What the judge has to do is to use clear and simple language that will without any doubt convey to the jury that in cases of alleged sexual offences it is really dangerous to convict on the evidence of the woman or girl alone. This is dangerous because human experience has shown that in these courts girls and women do sometimes tell an entirely false story which is very easy to fabricate, but extremely difficult to refute. Such stories are fabricated for all sorts of reasons, which I need not now enumerate, and sometimes for no reason at all. The judge should then go on to tell the jury that, bearing that warning well in mind, they have to look at the particular facts of the particular case and if, having given full weight to the warning, they come to the conclusion that in the particular case the woman or girl without any real doubt is speaking the truth, then the fact there was no corroboration matters not at all: they are entitled to convict.”

In this case, the magistrate’s words of warning to himself were. “As a matter of practice, I remind myself of the danger of convicting in offences of sexual nature without corroborative evidence.” The appeal court was satisfied and upheld the conviction.

The requirement for a warning regarding corroboration in matters of sexual offences while other offences such as murder and robbery are not subject to such a rule has been critiqued from feminist quarters. The thinking reflected in the above quote is the target of much of this critique.


Definition of Hearsay

Murphy includes several definitions of hearsay. One which is quoted is that of Cross.

“An assertion other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact asserted.”

Another definition set out in Murphy is that of the American Federal Rule on Evidence 801

“Hearsay is a statement other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”

As we have seen the American Federal Rule is incorporated in the Marshall Islands Evidence Act and therefore finds its way into the South Pacific region.

Another concise statutory definition is found in the Tonga Evidence Act at s. 88.

“Where it is sought to prove any fact by evidence of an oral or written statement made by any person not called as a witness, such evidence is called hearsay evidence.”

(The Tonga Evidence Act follows up with statutory exceptions in s. 89. This section codifies all exceptions, common law and otherwise in Tonga, both in criminal and civil cases.)

These definitions of hearsay do not include out of court statements that are introduced in court as proof of something other than the facts asserted in that statement. In other words, many out of court statements can be introduced in court and are not hearsay. It depends on why they are being introduced.

Dangers of Hearsay Evidence

At page 185 and 186, Murphy sets out several reasons for the rule against hearsay.

One is that when someone reports a fact to someone else and that someone else testifies about the fact in court, the passing of the information through an extra person creates a greater possibility of distortion. This distortion may be intentional or inadvertent.

The second major disadvantage of hearsay evidence is that it is not subject to cross examination. One cannot cross examine the testimony of a person who witnessed the events in question if he or she is not in court under oath. This is seen as a great disadvantage for the opposing side, is considered to be contrary to the fundamental rules of natural justice and, as Murphy points out, is the basis of a fundamental right in the Constitution of the United States.

Another disadvantage of hearsay that is sometimes mentioned is the fact that the maker of the statement is usually not under oath when he or she makes the statement and is therefore not subject to a charge of perjury for not telling the truth. This is seen as a potential source of unreliability of the statement. This criticism could be subsumed in Murphy’s first outlined disadvantage.

The hearsay rule has been part of the common law justice system for several centuries. In its pure common law form is a far reaching rule with a severe constraining effect on what evidence is admissible. The common law has developed some exceptions to the rule against hearsay. These exceptions have become insufficient for the administration of justice in the modernizing world. There have been many statutory exceptions which have further eroded the rule against hearsay evidence. However, the rule (and being able to identify exceptions to it) remains sufficiently important that any practicing lawyer must have a clear understanding of hearsay.

Hearsay and Non Hearsay – Two Questions

Not all out of court statements are excluded by the hearsay rule. Remember the definition. If the purpose is not to prove the facts asserted in the out of court statements but to introduce the evidence for some other relevant purpose, then the rule does not exclude its admission.

It is therefore necessary in order to determine whether a statement is hearsay to ask 2 questions. The first is: When was the statement made? This is a relatively straightforward question. Unless the statement was made from the witness box (or in an admissible affidavit form) in the subject proceedings, then it was made on a previous occasion and may therefore be hearsay.

The second question is more difficult. It is whether the statement is adduced to prove the truth of the facts asserted.

Murphy, at page 192 deals with this second question with the assistance of diagrams and an example. It is really quite simple and you may already be clear on the nature of this question. However, for confirmation, these notes will review Murphy’s example and a second example that was given in an introductory lecture of this course.

The example I gave in an earlier lecture was this. Suppose a witness in court gave evidence that: “The Pro Vice Chancellor of the Emalus Campus announced that May 13 was a public holiday and that USP would be officially closed”.

The evidence would be hearsay if the purpose of adducing the evidence was to show that the campus was closed on May 13. An out of court statement is being adduced to prove the truth of the statement. Suppose there was a government law that said all universities had to close on May 13. The VC’s official announcement that the university is closed might be offered as proof of the fact that USP complied with that law; in other words proof of the out of court facts asserted by the VC.

But the evidence might be adduced for another reason. Perhaps the issue was the reasonableness of someone’s actions, based on a situation they reasonably believed to exist. (Suppose the mail man is required to prove that he acted reasonable in not delivering the mail to USP on May 13.) In such a case the statement of the Pro VC would not be hearsay. It would not matter if the university was really closed or not. It would be introduced to show only that the statement was made – and therefore that the actions someone took as a result were reasonable.

Murphy’s example is similar. This is an example where W sees D rob a bank. W tells P a police officer what he saw. Before the trial, W dies. P then wants to adduce evidence of what W said to him out of court, namely that D robbed the bank. The purpose of this evidence is clearly to prove the truth of the fact asserted in the out of court statement, namely that D robbed the bank. It is hearsay and therefore inadmissible.

The second example assumes the W does not die. The criminal trial leads to the acquittal of D. He is very unhappy that W said that he robbed the bank. Later, in another trial D sues W for defamation. D introduces, as part of his case W’s statement to the police that D robbed the bank. The statement is the same as that in the criminal trial namely that D robbed the bank. However, in the defamation trial, the out of court statement (W telling P that D robbed the bank) is not introduced to prove the truth of the fact that D robbed the bank. It is only introduced to prove that the statement was made by W.

Sometimes evidence can include multiple hearsay. If I tell you something and you tell a third party and the third party goes to court to assert the truth of what I have originally asserted, then it is hearsay. Some statutory rules speak of hearsay within hearsay, multiple hearsay or hearsay of the second or further degree. This is the sort of thing that is being referred to.

Each step of the multiple hearsay must be examined separately to determine whether the statement is admissible or whether it is inadmissible hearsay.

When and How Made

Hearsay may take the form of oral or written statements and may also be in the form of some other medium. It could be by a gesture, or a machine. In the week 11 tutorial (Ms A’s evidence about the motor vehicle evidence) we discussed the possibility that the occupant of the car could have answered Ms A’s question; “Who was driving?” by simply pointing to a person. This would be just as much hearsay as if the answer was oral. The important thing is that the statement was intended to communicate information. Blind, deaf and dumb people are all capable of giving a hearsay statement.

The case of R v Gibson is offered as a clear example of hearsay (Murphy at page 196).

A man was charged with wounding. The allegation was that he threw a stone. The police arrived at the scene and were told by a witness, “The man who threw the stone went into that house.” The statement was inadmissible. It was clearly intended to be used to prove the truth of its contents and therefore that the man who was arrested was the one found in the house that the woman had pointed to.

Another clear example is that of Jones v Metcalfe [1967] 1WLR 1286. In that case a witness to a motor vehicle accident took down the number of a vehicle. The witness passed this information to a police officer who wrote it down. The witness forgot the answer and the prosecution sought to introduce the information through the police officer. Because it was plainly intended to prove the truth of the statement – that the vehicle in the accident had a certain license number, it was inadmissible hearsay.

Murphy compares the 2 above examples from the point of view of the objectionability in relation to the issue of reliability. The first is clearly more objectionable on this ground.

Courts have more sympathy with the later sort of case. We saw how in the case of Myers v DPP the House of Lords reluctantly allowed the appeal although some of the judgments plainly say that it is on technical grounds and not because the evidence is inherently unreliable.

Another case of hearsay is when a statement is given to a witness through an interpreter. If the interpreter gives the statement in English (or whatever language the statement has been interpreted into) to a witness in court (even if it is a confession), the evidence is hearsay as the statement was passed from the interpreter to the witness. In the Pacific, where interpreters may be used on a routine basis, one should be particularly careful to not fall into error in this regard.

Admissions based on hearsay:

Admissions are considered an exception to the hearsay rule. We will deal with this exception in greater detail in week 13. However, for the moment, it should be noted that if an admission or confession is based on hearsay, it may be excluded as being itself contrary to the hearsay rule. Murphy goes over this at page 197 and 198. For instance, where a person is in possession of goods and someone tells the person that the goods are stolen; the first person might plead guilty to possession of stolen goods solely on the basis of this hearsay information. If the sole basis of the accused’s knowledge that the goods are stolen (and element of the offence) is hearsay, then any confession based on the hearsay might be no better than the hearsay itself, - which is to say inadmissible.

Not all statements made out of court are inadmissible. As we have seen with the example of W’s statement that A robbed the bank, if the purpose of introducing the statement is not to prove the truth of the statement, then it is not hearsay.

The Purpose of the Statement

This is a question that lends itself to considerable analysis. A statement might be adduced in court, not to prove the truth of its contents but for any of the following purposes.

  1. statements having a legal effect of significance
  2. statements as direct evidence that the statement was made or was made on a particular occasion or in a certain way
  3. statements as circumstantial evidence of the state of mind of the maker or recipient of the statement.
  4. statements as circumstantial evidence of other relevant facts.

Non Hearsay Statements

Murphy breaks down the categories of non-hearsay out of court statements into four main categories.

Statements having legal effect or significance

When someone makes an agreement that becomes a binding contract, the statement may be admissible, not to prove the truth of the statement (it might be a representation of fact which forms a condition of the contract or it might be the actual promise which becomes part of the consideration). It is admissible because the statement, whether true or not has some legal significance.

In a criminal context, the same category applies. A statement made between people may be evidence of an agreement in a conspiracy case. The truth or otherwise of the statement is irrelevant. It is the legal effect of the making of the statement itself that is relevant.

Murphy gives an example in the case of R v Chapman [1969] 2 QB 436 at page 199. In that case the accused was charged with driving with excess alcohol in the blood. One way to prove this charge is to take a blood sample from the accused and have it analysed. However, the enabling legislation said that a sample may only be admissible in evidence if a doctor had given permission to take the sample. (Note it is not the accused who gives consent in this instance). The police witness or the technician gave evidence of the blood and the fact that the doctor gave permission. It was objected to as hearsay. However, the court rightly decided that the permission was not inadmissible hearsay because the words of permission itself were what was relevant. The sample was taken on the authority of the permission. It did not matter if the doctor giving the permission meant to or not. He did.

Statement admissible to prove that it was made in a certain way or on a particular occasion

The example of defamation is an example of a non hearsay out of court statement that is admissible to prove that a statement was made on a particular occasion.

In other instances, a statement or report may be admissible, not to prove the truth of its contents but because the actual making of the statement or report is relevant in and of itself.

If there is a dispute about whether a person gave notice in relation to some matter, the notice (written or oral) would be admissible. If there is a dispute over when a statement was made, the statement might be admissible if it discloses the date. If there is a dispute over whether a person is under duress when they make a statement, the statement might be admissible if it is relevant. (If written, the handwriting might be shaky; if oral, the consent might have been given grudgingly or with a tone of fear).

We have already seen that a previous consistent or inconsistent statement (that is one made out of court) might be admissible in relation to the issue of credibility and not to prove the truth or otherwise of the assertions that are contained in the statement.

Statement as circumstantial evidence of state of mind

This overlaps to some extent with the last category. The intent of a person, the belief of a person, the knowledge of a person may all be relevant to an issue.

In Subramaniam v Public Prosecutor (PC Malaysia) [1956] 1WLR 965, the accused was charged with having possession of illegal firearms. The accused’s defence was that he had a lawful excuse as his state of duress was induced by threats from terrorists. He wanted to lead evidence of what the terrorists had said to him to put him in that state. This evidence was ruled inadmissible as hearsay. The House of Lords held that the accused should have been allowed to adduce that evidence as it was not intended to prove the truth of its contents. The issue was the state of mind of the accused and what the terrorists had said to him (true or not) would be relevant to this issue. (This is similar to the hypothetical example regarding the closure of USP.)

In Ratten v R [1972] AC 378, the accused was charged with murdering his wife by shooting her. The accused’s defence was one of accident. The prosecution wanted to admit evidence that the wife, a few minutes before her death made a hysterical telephone call asking the operator to get the police. This evidence was relevant as it went to the wife’s state of mind – which in turn was relevant given the defence of accident. The statement was not adduced to prove the truth of any assertion.

We have already seen in the case of Jones v DPP [1962] AC 635 that a false statement to the police might be relevant, not to prove the truth of its contents but to the credibility of the accused. (In this case, the statement was the alibi of the accused, namely that he had been out with a prostitute at the time of the offence. We originally examined this as an instance of how character can be relevant to a fact in issue.) The statement could be mistakenly regarded as hearsay. However, it was not adduced to prove the truth of its contents but to show that the alibi of the accused (which is identical to another alibi given unsuccessfully on another previous charge) is relevant to the state of mind of the accused.

Another case which illustrates the same principle is that of Khan v R [1967] 1 AC454 which is dealt with at page 202 of Murphy. In that case the out of court statements were adduced, not to prove the truth of the assertions but to show the guilty state of mind of the accused.

Statements as circumstantial evidence of other relevant facts

That is other than the state of mind of the maker or recipient of the statement.

In Woodhouse v Hall (1980) 72 Cr App R 39 the charge was keeping a brothel. The police had a conversation with some women who discussed the cost of sexual services. This out of court statement was admitted into evidence, not to prove the truth of their contents but because the very making of the statement is relevant to the charge. (See page 203 of Murphy)

Statement as evidence of identity or origin

Think of going to the Bon Marche and buying a dozen apples. They all have little stickers on them showing that they come from New Zealand. Should those stickers be admissible as evidence of the place where the apples came from? This could be strictly characterised as hearsay and therefore inadmissible. Certainly an argument could be made to this effect. However, courts have attempted to make subtle distinctions to get around this difficulty.

In R v Rice [1963] 1 QB 857 (Murphy at page 205) the prosecution wanted to admit an airline ticket with the name of the accused on it to show that the accused had flown from London to Manchester on a certain day. The court admitted it as circumstantial evidence in relation to this issue. The mere fact of the ticket with the name of the accused on it was non hearsay circumstantial evidence that someone with the name of the accused flew between those 2 points on the day in question. The rationale requires that subtle distinctions be made.

The trend is to admit evidence as non hearsay circumstantial evidence in such circumstances.

An invoice from a store with a computer printout showing the date, the time, the articles purchased might well be admissible as non hearsay as circumstantial evidence that the person in whose possession the invoice was found was in the store, that the person purchased the goods set out etc. (This example is unlikely to occur in most jurisdictions due to the statutory business records exception to the hearsay rule.)

There is a fine line between hearsay and real evidence. Consider again the example of the receipt from Bon Marche. A receipt might be non hearsay when it is found on the person of someone, if it is adduce as evidence of the fact that they were in the Bon Marche. It might also be evidence of the fact that they were in the Bon Marche on the date stated on the receipt.

Statements Admissible as confirming other evidence

Murphy gives as an example of this category the case of Lloyd v Powell Duffryn Steam Coal Ltd [1914] AC 733. In that case, a woman wanted to prove that a man (who was since deceased) was the father of her child. She adduced evidence to the effect that the man regarded the plaintiff as his fiancée and the child as his. The words, rather than being held to be evidence of the proof of the statement were admitted as circumstantial evidence that the deceased believed himself to be the father of the child and that he intended to support the plaintiff and the child. This evidence was relevant to the issue of paternity.

Three hearsay problems

Unintended communications

If an issue is the mental capacity of a person, the fact that the person, during the relevant time received business letters from businessmen might be relevant to show that the person had a sound mind. This is the inference that can be drawn from the fact that the businessmen were writing to him. However, such letters, even when used for this purpose may be hearsay. That is, they are being used to prove that the recipient is of sound mind. That is the implied statement that they are being used for. In Wright v Doe d Tatham (1837) & Ad & El 313 (Murphy page 208), a case such as this, the letters were excluded.

If a person phones the house of the accused offering to buy drugs, the inference is that the accused is in the business of selling. However, as Murphy points out this evidence is hearsay. It is an unintended communication (unintended message may be a better word) but the hearsay rule still applies. It is necessary to go back to basics to analyze it.

Absence of record or information

The fact that there is no statement may itself be advanced as evidence of the inference that can be drawn from the absence of the record. If there is no record of the fact that you are legally admitted to Vanuatu, should that be admitted as evidence that you are not legally here? It is analogous to admitting a statement that says you are not legally admitted into Vanuatu. It can therefore be analyzed as hearsay the same way.

However, Murphy advises us on page 210 that the recent trend is to admit this type of fact as non hearsay even though it creates theoretical problems. This is justified as technology becomes more sophisticated and reliable. Also, there are many statutory exceptions to the hearsay rule that allow the admission of this type of document. See the Criminal Evidence Act UK 1965 and the Civil Evidence Act UK 1968.

Hearsay and Real Evidence

A printout from a computer, a reading from a scientific instrument, a tape recording of a voice etc might all be classified as hearsay evidence. However, they can also be characterised as non hearsay real evidence that are admissible.

There are more and more machines and greater sophistication in technology. Readings are now admitted as real evidence at common law. Along with this, there is a presumption that a device or machine is functioning correctly. This assists that proponent of the evidence. It is up to the opponent to displace the presumption.

A receipt from a store that is generated automatically by computer might well be considered real evidence although it contains implicit and explicit statements of fact. (That a sale was made, what the item sold was, how much was paid, when the sale was made etc.)


pixgrn.jpg (632 bytes)

[About the School of Law] | [Courses Offered] | [Course Materials] | [Staff]
[Pacific Law Materials] | [Journal of South Pacific Law]
[Emalus Campus Library] | [Recommended Internet Links]
[Latest Additions]  | [Search the Site]

© University of the South Pacific 1998-2002

If you have any comments, suggestions or difficulties with using this web site please email
Robynne Blake
, Internet Project Manager, The School of Law, The University of the South Pacific or fax: (678) 27785

Last Update: Monday, June 02, 2003 08:20