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Evidence - WEEK 13 - COURSE NOTES
Common law exceptions to the hearsay rule
CONTENTS: Res Gestae Confessions
There are four main categories of common law exceptions to the rule against hearsay. They are:
- res gestae
- statements by deceased persons
- public documents
- statements against interest
Each of these categories breaks down further into sub categories.
There are 2 basic justifications for the common law exceptions. One is that the exception is necessary in order to make available evidence that wouldn’t otherwise be available. The other is that there are built in safeguards to minimize risk of admitting the evidence. Consider how these factors operate in the exceptions that we will look at.
We have already looked at this in relation to the rule against previous consistent statements. Res gestae is an exception to that rule.
When you think about it, you can also see that the statement can also be analyzed under the rule against hearsay. If someone cries out as they are running from a burning building, “The gas cylinder exploded!” it is hearsay if it is admitted to prove the truth of the assertion – that is to prove that the gas cylinder exploded. However, if it satisfies the criteria for res gestae, it is admissible hearsay. This is a common law exception to the rule against hearsay.
What are the criteria? The basic requirement is that the statement be integrally mixed up in the event that it is describing.
Murphy breaks it down into several sub categories.
Statements accompanying and explaining relevant acts
The statement must be contemporaneous with the act that it concerns. It must relate to the act that it is contemporaneous with.
If a person planted a tree and when planting it said, “this tree is the boundary of my land” the act is contemporaneous to the planting and relates to the act of planting.
This could be distinguished from a statement such as: “I am planting this tree on the boundary” The act may not be related to the act but only coincidental to it. It would therefore be inadmissible hearsay rather than admissible res gestae. The distinction is a fine one. This application of the res gestae exception to the rule against hearsay is seldom used. See Murphy at page 215.
Spontaneous statements by participants or observers of an event
This is the category of res gestae that is most frequently used. It is the unpremeditated and spontaneous utterance of a person. The example given above where a person yells when running out of a burning building, “The gas cylinder exploded!” Such a statement is made spontaneously and contemporaneously with the events being described. The statement is admissible as an exception to the hearsay rule. It is adduced to prove the truth of the statement asserted.
Such a statement must be made contemporaneously. Murphy points out at page 216 an absurd example of the case of Bedingfield where a woman came out of a room with her throat cut and said, “Look what Harry has done.” The court in this case ruled that the utterance was not made contemporaneously enough and therefore was not admissible as res gestae. This case is often used as an illustration of an extremely conservative interpretation. It no longer represents the law.
Other cases take a more reasonable interpretation of the notion of contemporaneous. The Ratten case that was mentioned earlier in relation to the definition of hearsay is an example. In that case the wife of the accused made a telephone call shortly before her violent death by shooting. She was hysterical and her statement was held to be non hearsay circumstantial evidence of the circumstances in the house – that would refute the defence of accident. However the Appeal Court also held that, to the extent that the statement contains an assertion, the truth of which it is being adduced to proved, the statement was admissible as res gestae even though it happened before the event by some minutes.
In R v Andrews  AC 281, the victim of a robbery was wounded. He told the police that he had been robbed by the accused. He later died. His statement was admitted to prove the truth of the assertion (that the accused had robbed him) under the res gestae exception to the hearsay rule.
The limits of “contemporaneous” were illustrated in the case of Tobi v Nicholas  RTR 343. A driver, about 20 minutes after an accident made a statement about the accident. It was held to be too long after the event to be contemporaneous. Also there was only minor damage to a vehicle and the trauma of the event was insufficient to guarantee the spontaneity required.
Contemporaneous declarations of the physical or mental state of the speaker
If a person says they feel sick, the facts asserted are admissible pursuant to the res gestae exception to the hearsay rule.
The basis for this is the likelihood of spontaneity. It is a strange rule and does not take account of malingering. Nevertheless, if it relates to a condition being experience when the statement is being made, it is admissible as res gestae. Remember however that such as statement, just like any other evidence, must be weighed by the trier of fact. It may be given a little or a lot of weight depending on how credible it is found to be. Examples are set out on page 218 and 219 of Murphy.
Declarations of persons since deceased
This exception to the hearsay rule assists in proving facts which might not otherwise be subject to proof. This is a major common law exception to the rule against hearsay. It breaks down into several sub categories.
Matters of public concern
Where a person makes a statement about pedigree, the customary use of land, or other “general rights” and then dies, the statement is admissible as an exception to the hearsay rule. We have already examined this rule as an exception to the opinion rule. And also to some extent the rule regarding the admissibility of character evidence.
Statements against interest
Where a person makes a statement, the contents of which would tend to have adverse economic or proprietary effects on the maker, then if the maker is deceased at the time the testimony is required, the evidence is admissible as an exception to the hearsay rule.
We shall look at this exception in greater detail in reference to a statement made against interest by a party to an action or an accused in a criminal matter.
The maker must know that the statement is against interest at the time when the statement is made. There is some dispute as to whether a statement that exposes the maker to criminal or civil liability is sufficiently against interest. It is certainly arguable.
(Hypothetical: A person who says that he and Mr. A. stole money from Mr. B. The person dies. The statement is against the interest of Mr. A. It would be admissible evidence against Mr. B.)
Page 221 – case of Higham v Ridgway (1808) 10 East 109
Statements made by deceased persons in the course of their duty
The statement of a person, since deceased is admissible as proof of the truth of its contents if the statement was made in the course of the legal or professional duty of the maker.
The statement should be made during the time when the legal or professional duty would have it made.
An entry in a ships log by the captain is an example of the sort of record that is admissible. Another example might be a statement made by the pilot of an airplane shortly before the plane goes down. The statement might be admissible to prove the truth of the assertions made by the pilot. As long as the statements were within the official duty of the pilot.
A statement that is not within the official duty or is not made when it should be in accordance with the official duty will fall outside the scope of this exception.
Dying declarations in homicide cases
This is a dramatic but specific exception. It only applies to murder and manslaughter cases. The rule allows statements made by victims of homicide cases to be admitted to prove the cause and circumstances of death. The rationale seems to be the presumption that a person who knows that they are at the point of death has no reason to lie.
Facts contained in public documents
We have already examined this exception to the hearsay rule when we considered documents in a separate lecture. We did not analyze it as an exception to the hearsay rule when we first looked at it but when you think about it, that is exactly what it is. The public document (a “statement” made out of court) is admissible to prove the truth of its contents.
Examples of public documents are birth certificates, licenses, corporate records, etc.
This exception to the hearsay rule is designed to facilitate proof of facts that might otherwise not be provable. (There are now other statutory exceptions – some of which might cover public documents.)
The fact that public documents do not cover private documents, even of a large quasi public entity gave rise to the need for legislative change. The statutory admission of business records in all jurisdictions following the Myers case resulted.
In order for a public document to be admissible as proof of its contents:
- It must have been preserved for public use
- It must be open for public inspection
- The entry must be made promptly after the events recorded.
A fourth requirement, that the entry must have been made by one under a duty to inquire into and satisfy himself of the truth of the facts has now been eliminated – not by statute but by modification of the common law rule.
Statements made by a party against interest (admissions, confessions)
This forth common law exception to the rule against hearsay is the most important and the most difficult. It has application in both criminal and civil proceedings.
The exception might be generally referred to as the exceptions for statements against interest. If a person says something out of court, we know that the rule against hearsay prevents it being adduced in court by some other person to prove the truth of its contents.
For instance, if a party says out of court in relation to a motor vehicle accident that he was driving carefully at the speed limit, that out of court statement cannot be adduced in court to prove that he was travelling carefully at the speed limit. That is hearsay. It does not fall within any of the common law exceptions that we have seen. (If the party tries to introduce it in court he or she is likely to fall afoul of the rule against previous consistent statements as well.)
Similarly if a person charged with an offence of arson says, out of court that he is terrified of fire, that statement cannot be brought into court to prove that the accused is terrified of fire. It is hearsay.
One of the bases of the hearsay rule is that the out of court statement, especially if it is self serving, is not reliable. However, the common law has recognised that some out of court statements are more likely to be reliable than others. Any statement made by a party that is against his or her interest is regarded as having a high reliability level. The rationale is that it is unlikely that a person would make a statement against his or her own interests unless it is true. There is nothing to gain from making up a statement that is against your interests. This reasoning is based on the premise that people are rational and that rational people act in their own interests.
In criminal law, a statement against interest is usually takes the form of a confession. Many people who are accused of criminal offences confess before they get to court. The confession may be one of full guilt or a partial confession of guilt. In either case, the confession is clearly against the interest of the accused. Why would someone make up a confession if they are innocent? Why would someone give an untrue confession? The unlikelihood of a rational person voluntarily doing such a thing is the basis of the exception (statements against interest) in criminal cases.
In civil cases, it is the same rational. A person who is alleged to have breached a contract by not delivering goods to the plaintiff and who admits that he has not delivered the goods is not acting in his own interests (at least as far as his legal rights are concerned). Another example might be where a father says to a friend that he has not paid any child maintenance for the last 6 months. It is against the interests of the father to make this admission. It is therefore considered to have a higher degree of reliability than a statement made by a person which is in their interests. This is the rationale behind the common law exception to the hearsay rule which allows hearsay statements against interest. In civil proceedings a statement against interest is usually referred to as an admission.
There are particular rules that apply confessions and admissions being admitted as evidence in court.
Some basic Principles
A person may certainly make a statement against their own interests. The question becomes, is there anyone else who can make a statement against the interests of a person and still have it admitted under the scope of the exception? For instance, what about a lawyer, an agent or someone acting in a representative capacity (such as where a child is suing or being sued in a civil action.)
At common law, the statement of a person who represents another in an action in a representative capacity does not fall within this exception to the hearsay rule. An out of court statement by a person acting in a representative capacity cannot be adduced in court to prove the truth of the assertion – the statement against interest.
A person acting in a representative capacity and making a statement in that capacity may, if that statement is against the person’s (that is the representative’s) personal interest have the statement adduced within the exception. That is, a representative making a statement in that capacity may find that the statement, against his or her own interests can be used against the representative.
Admissions or confessions made by a party that affect the interests of another party may not be adduced as evidence against the other party within the exception to the hearsay rule. (Remember that we are talking only about hearsay. Parties can come to court and give evidence against each other.)
Declarations in furtherance of common design
These are common to conspiracy cases. While a statement against interest cannot be admitted as evidence against another party (see above) it can be admitted as evidence of a common design (that is evidence of the conspiracy). The distinction is not always easy. It is dealt with by Murphy at page 229 and 230.
Witnesses in other proceedings
At page 231 Murphy deals with this. It is not important for the exam.
Statements by agents that are against the interest of the principal may be admitted as exceptions to the hearsay rule under the “statements against interest” exception. It is always a question of fact whether the agent was acting within the scope of his or her authority at the time that the statement was made.
Similar considerations apply to an employee making a statement against the interest of an employer.
Statements by legal representatives
A statement made by a lawyer that is against the interests of a party may be admitted as an exception to the rule against hearsay. This again depends upon the express or implied authority of the lawyer to make statements. A general retainer implies a wide scope of authority.
Murphy distinguishes between barristers and solicitors. This is not a relevant distinction in the Pacific where there is a fused profession.
Spouses, parents and children
There is no rule that a statement made by a parent, spouse or child against the interest of the other spouse, child or parent may be admitted as an exception to the rule against hearsay. Particular cases may have specific facts that would make such an exception available.
A statement against interest will be admissible if it is not based on hearsay itself. In some cases, it will be admitted even if it is based on hearsay. For instance, someone charged with an adult offence (whose age is apparently close to the cut off age) who admits that he is 18 years old (assuming that is over the cut off), even though age is, strictly speaking a matter of hearsay, will be admitted as an exception – under the statement against interest rule.
Where an admission is based on a matter normally requiring expert opinion, it may be admitted even though the party making it is not an expert. For instance, Murphy gives the example of the drug user who admits that the substance being used is heroin. It is a statement against interest (in a charge of possession of heroin) that normally must be founded on expert evidence of the nature of the substance.
See Murphy page 233, 234
A confession by a person accused of a crime is a very powerful piece of evidence in the hands of a prosecutor. It is possible to convict a person solely on a confession. The admission of a confession is treated generally in accordance with the statement against interest exception to the hearsay rule. However, some particular rules and procedures have developed around the admission and use of confessions in criminal cases.
Remember that we are not talking about a guilty plea – which is sometimes called a judicial confession. Nor are we concerned with a confession that an accused makes in court, under cross examination for example. We are concerned with an out of court statement made by an accused against his or her interest where an accused pleads not guilty, the matter goes to trial and the prosecutor wants to have the statement admitted as evidence against the accused.
The rules of evidence relating to the admission of confessions in criminal cases have changed dramatically in the UK as a result of recent legislation. In the Pacific, where this legislation is not applicable, the older common law principles continue to apply to the admission of confessions. You should be aware that Murphy is therefore largely inapplicable to the law of evidence relating to the admission of criminal confessions in the South Pacific.
The common law has allowed convictions to be based solely on a confession by the accused. However, the common law has recognized that a confession should only be relied upon as evidence against the accused where the confession is made freely and voluntarily. It is easy to imagine how, in some circumstances, the police or other authorities could use oppression, threats, inducements force, or some other trick to obtain a confession from the accused. Where a confession results from such activity, it is less reliable and may in fact be completely fabricated. There are many examples, even in societies where the police supposedly operate pursuant to strict standards of professional conduct and where courts operate in accordance with the presumption of innocence where involuntary confessions have been made.
The basic principle of the admissibility of confessions found in R v Ibrahim  AC 599 at 609 (at page 235 of Murphy).
“It has long been established… that no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority.”
This quote contains all the basic requirements and criteria.
- Statement against him (statement against interest, admission, confession)
- Shown by prosecution (burden of proof is on the prosecution)
- Voluntary (“of one’s own free will” this is the test – which is explained further in the quote)
- Person in authority (when not given to a person in authority, voluntariness does not have to be proved)
Another feature of the law relating to the admission of confessions in evidence is oppression. The extent to which the notion of oppression adds anything to the notion of voluntariness is unclear. If the prosecution must prove that a confession was given voluntarily, it probably entails proof that the confession was given without oppression. However, there may be circumstances where proof that a confession was given without oppression goes beyond the proof that a statement was made voluntarily.
The question of whether a confession was made voluntarily is determined by reference to the subjective state of mind of the accused rather than the objective words or actions of the person in authority or the state of mind of such person.
Because the onus is on the prosecution, the existence of any form of threat or inducement is likely to result in the confession being excluded. The form that a threat or inducement might take can be varied. The expression, hope of advantage or fear of prejudice is another way of expressing what the prosecution must prove the absence of.
Who “a person in authority” is is a further question that may sometimes call for careful consideration. In most cases it is a police officer and there is no doubt either in the mind of the accused or the police officer that the police officer is a person in authority. It may be a school principal, a parent, a customs officer, a security guard, a store detective, a military person (in relation to a subordinate) or some other person. Whether the person to whom a confession is made is a person in authority is a question of fact.
The Judges Rules are relevant to the admission of confessions in criminal cases. These were promulgated near the turn of the century to guide judges in the exercise of discretion to disallow the admission of confessions that had been obtained as a result of improper police conduct. The conduct may or may not have resulted in the statement being made involuntary. It may be that the statement was made voluntarily but it is still inadmissible in accordance with the judge’s rules.
Obtaining a copy of the judge’s rules is difficult.
Definition of Confession
A confession, as mentioned above is an adverse admission made by an accused in a criminal case. It may be made orally or in writing. In most cases, if it is a full confession, it is made in writing. In some jurisdictions, confessions are made on audio or videotape. This assists the prosecution in discharging the burden of proving that the confession is voluntary.
The prosecution does not need to prove that a confession which is made to a person who is not in authority was made voluntarily. An example of this is the Khan case where the accused made a confession to his wife.
In a criminal trial, where a prosecutor proposes to introduce a confession as part of the prosecution’s case, the defence counsel will be asked if he or she takes issue with the admissibility of the confession. If there is no issue taken then the statement is admitted. The person to whom the confession was made usually describes the circumstances of the taking of the confession and introduces the confession. The confession is usually a written and signed statement.
If the defence counsel does take issue with the admissibility of the confession, then the judge (in the absence of the assessors or jury) will determine the admissibility of the confession. This is done by way of a trial within a trial, which is often referred to as a voir dire.
The issue at a voir dire is the voluntariness or lack of oppression in relation to a confession. It is not the guilt of the accused. Any questions that go solely to the guilt of an accused are irrelevant and would not be admitted in a voir dire. Witnesses, including the accused may be called during a voir dire. Examination and cross examination of those witnesses may take place. Submissions may be made by counsel and this is followed by a decision by the judge or magistrate. The decision is whether the confession will be admitted into evidence. Remember that the prosecution has the burden of proving voluntariness or lack of oppression beyond a reasonable doubt.
Evidence that is heard during a voir dire is not admissible at the main trial. See Wong Kam Ming v R  AC 147 referred to at page 252 of Murphy. Therefore if an accused admits committing the offence at the voir dire, he cannot be cross examined on it at the main trial. This is easy to conceptualize in relation to a trial by jury but requires some contrivance and perhaps even fiction in a case where the judge is the trier of fact and of law. Nevertheless, the evidence taken during a voir dire is in a “water tight” compartment and unless specifically admitted as evidence during the main trial, cannot be evidence of guilt.
In addition, a judge has a residual discretion to exclude evidence where the probative value is outweighed by the prejudicial value. We have already considered that near the beginning of this course when we looked at the role of a judge and the residual discretion that a judge has to exclude evidence.
In a practical sense this means that a defence counsel, even if the confession is proved to be voluntary, might be ruled inadmissible by a judge pursuant tot he residual discretion to exclude evidence on the basis of fairness. See also section 28 of the Fiji constitution in relation to instances where a confession is obtained voluntarily but illegally.
Evidence yielded by inadmissible evidence
This is often referred to as the fruit of the poison tree. If a confession is made involuntarily and is itself excluded, the confession might lead the investigators to further evidence that would not otherwise have been discovered. We spoke of this issue earlier in the course when we spoke of a judge’s discretion. You may recall the tutorial where the police used force to obtain a confession. The confession led to the recovery of the stolen property under the pillow of the accused. If the confession was not voluntary or was obtained by oppression, should the further evidence obtained as a result of the confession be admitted.
The answer to this depends on what the purpose of excluding the evidence is. If it is to prevent involuntary and therefore unreliable evidence from being admitted, then further evidence which stands independently of the confession should not be excluded. It is reliable or not, on its own, regardless whether the confession that led to its discovery is reliable. In a way, if it
On the other hand, if the purpose of excluding the confession is because it was obtained by inappropriate police conduct, then there is a stronger argument that any derivative evidence should also be excluded.
The common law has always taken the former approach. That is, the fact that a confession is involuntary does not affect the admissibility of derivative evidence.
There may be separate arguments that can be made in relation to the derivative evidence. It is possible to argue in some circumstances that a judge should exercise his or her discretion to exclude the evidence. This argument might be based on the effect of the judge’s rules (see below) or the judge’s discretion generally.
Use of confessions
Page 254 to 258 of Murphy
There are a number of rules that govern the use of confessions that are admitted. The confession may only be used against the person who makes it. This excludes all others including a co-accused.
The entire confession must be admitted if any part is sought to be admitted by the prosecution. This means that confessions that are partly exculpatory must be admitted in their entirety. We have looked at this previously in relation to previous consistent statements. Recall that there is a rule against the admission of previous consistent statements. The rule has exceptions and one of the exceptions is an exculpatory statement that is part of a confession. We are now examining the same rule from the prosecution’s point of view.
The Judge’s Rules
These rules were considered in the lecture on judicial discretion to exclude evidence which is otherwise admissible in relation to the rules of evidence. We have seen that they operate as a guide to judges and magistrates in dealing with confessions that have been obtained unfairly.
The judge’s rules no longer apply in the UK where they have been replaced by more contemporary legislation which deals with the questioning of a person suspected or charged with committing a criminal offence. However, they continue to apply in the Pacific.
When a police officer is endeavouring to discover the author of a crime, there is no objection to his putting questions in respect thereof to any person or persons, whether suspected or not, form whom he thinks useful information can be obtained.
Whenever a police officer has made up his mind to charge a person with a crime, he should first caution such person before asking any questions or any further questions as the case may be.
Person in custody should not be questioned without the usual cautions first being administered. “you are not obliged to say anything but anything you do say may be taken down and used in evidence against you.”
The caution should be administered to the prisoner when he is formally charged, should therefore be in the following words: “Do you wish to say anything in answer to the charge? You are not obliged to say anything unless you wish to do so, but whatever you say will be taken down in writing and may be given in evidence.”
A statement made by a prisoner before there is time to caution him is not rendered inadmissible in evidence merely by reason of no caution having been given, but in such a case he should be cautioned as soon as possible.
A prisoner making a voluntary statement must not be cross-examined, and no questions should be put to him about it except for the purpose of removing ambiguity in what he has actually said. For instance, if he has mentioned an hour without saying whether it was morning or evening, or has given a day of the week and day of the month which does not agree or has not made it clear to what individual or what place he intends to refer in some part of his statement, he may be questioned sufficiently to clear up the point.
When two or more persons are charged with the same offence, and statements are taken separately from the persons charged, the police should not read these statements to the other persons charged, but each of such persons should be furnished by the police with a copy of such statements and nothing should be said or done by the police to invite a reply. If the person charged desires to make a statement in reply, the usual caution should be administered. If a prisoner wishes to volunteer any statement the usual caution should be administered.
Any statement made in accordance with the above rules should, wherever possible, be taken down in writing and signed by the person making it after it has been read to him and he has been invited to make any corrections he may wish.
Several minor changes were made to these rules in 1978.
The Judge’s Rules continue to apply in the South Pacific. See Solomon Islands case of R v Nanango. A judgment of Palmer J. where the discretion of a judge is referred to in relation to the Judge’s rules being breached and the lack of discretion that accompanies a finding a confession has not been proved to have been made voluntarily by the prosecutor.
We have examined in detail some of the rules pertaining to the admission of confessions. Remember that the admission of confessions made out of court is basically an exception to the rule against the admission of hearsay. You should be able to analyze confessions from this fundamental perspective. It will assist you in organizing and remembering rules of evidence.
We have spent more time analyzing criminal confessions because they have more rules associated with them (the requirement that when made to a person in authority, they be proved to have been voluntarily). However, the basic rule that statements against interest are admissible as an exception to the rule against hearsay also applies to civil proceedings. If a party makes an admission (one that is not made without prejudice – see Privilege in week 14 notes) it may be admitted as an exception to the hearsay rule.
Statutory exceptions to the hearsay rule - South Pacific Statutory References
The following references are to legislation relating to hearsay evidence in the South Pacific. For the most part, the legislation provides for statutory exceptions to the hearsay rule. The list of references is not exhaustive. There are likely other statutory exceptions, some general, some specific scattered throughout the legislation of each jurisdiction. In some instances, the exceptions are a codification of the pre-existing common law exceptions. The commentary is intended as a general description only. The wording of specific sections should be referred to in order to determine the scope and application of each section.
UK Evidence Act 1845 s. 1 certain documents (signed and sealed) are admissible
s. 3 copies of certain acts of parliament to be admissible if purported to be printed by Queen’s Printer.
Bankers Books Evidence Act 1879 s. 3, 4, and 5 copies of bankers book and affidavit of banker is prima facie proof of the contents of the book.
Criminal Evidence Act 1965 s. 1 admissibility of documentary evidence compiled in ordinary course of business (to get around R v Myers) this gives rise to questions about meaning of “business” or “trade”
Civil Evidence Act 1968 s. 1 eliminates common law hearsay exception and creates only statutory ones. In effect this gives statutory recognition to most common law hearsay rules.
s. 2 first hand hearsay is admissible in civil proceedings.
s. 3 previous inconsistent statement is admissible to prove its contents. (this changes the common law rule whereby the inconsistent statement only goes to credibility) But read this section carefully. Only where a witness does not admit to making a previous inconsistent statement and it has to be proved are its contents proof of what is asserted.
s. 4 contents of documents compiled in official duty are admissible to prove facts asserted. (see also s. 1 of Criminal Evidence Act 1965)
s.5 documents produced by computers are admissible to prove contents if conditions regarding their production are met.
s. 6 court may draw inferences from document itself to determine whether it is admissible pursuant to s. 3, 4, or 5.
Civil Evidence Act 1968 s. 8 admission of hearsay pursuant to s. 2 (oral hearsay), 4 (documents) or 5 (computer information) Rules of Court shall require giving of notice of intention to use hearsay and give the other side the opportunity to require witness to be called for cross examination. Other requirements and conditions may be imposed by rules.
s. 9 common law exceptions to hearsay rule are preserved re: (2) admission adverse to interest
published works of public nature
public documents records (court treaties etc.)
(3)(4) reputation, family tradition
re: good or bad character
public or general right
s. 11(2)(b) complaint, information or indictment is admissible as evidence of facts upon which conviction is based (but this doesn’t go so far as to create a presumption) copy of complaint etc. is admissible.
S. 12 adultery and affiliation findings made in one court are admissible as proof in another court
s. 13 conviction of offence is conclusive proof of commission of offence in defamation actions.
Fiji Bankers Books Act s. 2 definition of book is strict (query whether this has been judicially interpreted to include modern means of recording accounts used by banks)
s. 3 book entry is prima facie evidence of information entered
s. 4 affidavit of banker is needed to prove that entry is in “book”
s. 5 affidavit verifying copy is needed
s. 6 limited use of s.3 – banker is not compellable in actions where bank is not a party unless application is made to court.
Fiji Criminal Procedure Code s. 191 admission of plan or report where accused given notice (10 days) and where accused has right to have maker of report called. Includes list of persons to whom section applies – medial practitioners, surveyors, police photographers etc.
s. 192 signed statement of witness is admissible if notice given to accused before trial and if accused does not object within 14 days.
s. 243 depositions taken in accordance with s. 240 and 241 are admissible at the discretion of the court.
s. 255, 256 Hearsay written statements admissible at committal proceedings if conditions complied with
s. 290 Depositions from committal hearing may be admitted at trial under certain circumstances.
Fiji Evidence Act s. 3 In civil proceedings, a statement in a document is admissible if maker of document had personal knowledge or the making it was within his duty AND he is called as a witness (this is obviously to allow admission of document where the maker forgets what is written and must rely on what was written when he did remember) But maker not to be called if dead etc or if court gives leave. And a copy of the statement may be admitted as well if court allows.
s. 4 Document containing business record is admissible in criminal cases if conditions met (made in course of business and maker is unavailable or understandably does not remember what was recorded)
s. 9(2) copy of indictment or charge is admissible as evidence of the facts set out therein in relation to a conviction that is proved.
Fiji Matrimonial Causes Act s. 97 provides for admission of certified certificate or copy of certificate to prove birth, death, marriage.
s. 98 provides for admission of certificate of criminal conviction as evidence (but not proof or presumption) of commission of offence.
Solomon Islands Criminal Procedure Code s. 180 provides for admission of expert reports (doctors, government analyst or geologist) as evidence of the contents and court may presume that signature is what it purports to be.
Solomon Islands Criminal Procedure Code s. 224, 225 provides for the admission of depositions taken specially where ill or hurt or from committal hearings in certain cases.
Vanuatu Criminal Procedure Code s. 86 provides for admission of expert reports in certain circumstances – same as Solomon Islands s. 180
s. 87 provides for deposition evidence to be taken (for later use) where accused is at large.
Vanuatu Matrimonial Causes Act s. 19(4) allows for admission of documentary “medical evidence”. “Medical evidence” is wide enough to include opinion medical evidence. This is also an example of hearsay and opinion combined.
Sections of Criminal Procedure Code reflect similar provisions of the Vanuatu and Solomon Islands Criminal Procedure Code. As with Vanuatu and Solomon Islands, the provisions of UK legislation continues to have effect.
Evidence Act s. 25 to 32 provides for the admissibility of documentary evidence (written hearsay) in various forms.
S. 25 Evidence of Official Documents.
s. 26 Proof of other public documents – use of the Gazette, certified copies etc.
s.27 Documentary evidence in civil cases – This goes beyond the usual bankers books provisions and the business records provisions. There is provision for a judge to admit a document as proof of the facts asserted therein, in some cases without need of having the maker of the document called.
s. 28 Proof of documents executed abroad.
s. 30 Photographic versions of public documents admissible on certain conditions
s. 31 Ancient documents – 20 years in Samoa.
Tonga Evidence Act s. 26 provides that experts may refer to books and writings in support of expert opinion. (This is an example of hearsay being admitted as part of an expert opinion.)
Tonga Evidence Act s. 60 and 61 provide that oral evidence must be direct – that is if it refers to facts seen, heard or felt, the evidence must be of the person who did the feeling, hearing or seeing. If it is an opinion it must be of the person who holds the opinion. (This is restricted to oral evidence and should be read in conjunction with the detailed rules regarding hearsay in sections 88 and 89)
s. 88 defines hearsay – “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”
s. 89 defines hearsay. It goes on to provide detailed exceptions to the hearsay rule. They include the usual ones. Where the statement forms part of the transaction being investigated, dying declarations, statements against interest (where there was an opportunity of the interested party to reply). Admissions and confessions, to prove the state of mind of a person where that is in issue, statements by public servants about contents of an official book, many exceptions relating to statements by persons now deceased, depositions taken before a magistrate in certain cases, business records.
Tonga Evidence Act s. 62 to 77 deals with documentary evidence and the admission of documents. Most of this falls under the topic of hearsay as well. See also s. 91 to 95 which deals with the admission of public documents.
s. 98 to 103 deals with judgments – their admission as evidence and presumption created.
Tonga Evidence Act s. 157 allows a witness to “refresh memory” by reference to a document kept in the ordinary course of business even if he does not remember making the entry. (This is a form of hearsay)
Marshall Islands Evidence Act rule 602 lays down a blanket requirement that (except for where opinion evidence is admissible) no-one may testify unless they have personal knowledge of a matter. See also rules 801 to 806.
Marshall Islands Evidence Act rule 801 to 806 contains a list of exceptions to hearsay rule broken down into 2 parts. One is where a declarant is available to testify and one where a declarant is not available. It also defines hearsay as: “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” but excludes previous statements by the witness and admissions by an opposing party. Whether or not a declarant is available, the following is admissible hearsay: present sense impression, excited utterance (res gestae) then existing mental, emotional or physical condition, statements for purposes of medical diagnosis or treatment, recorded recollection, records of regularly conducted activity (course of business), absence of entry, public records and reports, records of vital statistics, absence of public record or entry, records of religious organisations, marriage baptismal and similar certificates, family records, records of documents affecting an interest in property, statements in documents affecting an interest in property, statements of ancient documents, market reports, commercial publications, learned treatises, reputation concerning personal or family history, reputation concerning boundaries or general history, reputation as to character, judgement of previous conviction, judgement as to personal, family or general history or boundaries. This sections goes on to give a general power to admit hearsay if it has equivalent circumstantial guarantee of trustworthiness (as above exceptions) and if offered as evidence of a material fact, it is more probative than alternative evidence, and justice will be served. But this requires notice and an address of the declarant to be given to the other side.
Rule 804 Where the declarant is unavailable, former testimony, statement under belief of impending death, statement against interest, statement of personal or family history are admissible as hearsay (with qualifications). There is a discretion to admit other evidence under this rule on the same basis as it may be admitted under rule 803.
Rule 805 hearsay within hearsay is ok if it conforms with the exceptions in the above.
Rule 806 Credibility of out of court declarant (where hearsay is admitted) can be attacked as if the declarant had given statement in court.
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