It is only where the party tendering the evidence was privy to the intimidation or dishonesty that there would be justification for keeping the evidence out. It is considered therefore that the out-of-court statement of a person who, being competent and compellable, refuses to testify, should be admissible. In some of the proposals which have been considered, the maker of a statement is regarded as unavailable where he is outside the jurisdiction and a party is then entitled to tender the statement in evidence.
It may be doubted if the statement of a person who is abroad should be admitted at all unless it is impossible to obtain his testimony on commission or pursuant to a letter of request.
The fact that it may be costly to secure. Rasbool v. See also Piermay Shipping Co. Chester [] 1 W. While it may appear arbitrary to draw a line according to whether the maker of a statement is in a country where he can be compelled to testify at the instance of an Irish court, this is, in fact, the true division between availability and unavailability of an unwilling witness.
It may be questioned if it is over-rigid to exclude an out-of-court statement of a person whom it is unduly costly to call as a witness, especially where the facts asserted are of marginal importance or are not seriously disputed. The New South Wales Law Reform Commission recommended that it should be permissible to tender in evidence in civil cases an out-of-court statement of such a witness without calling him as a witness.
It is considered that the problem of costly witnesses is best met by permitting the reception of out-of-court statements by agreement and the extension of the power of the courts to admit evidence taken on commission and statements on affidavit. As depositions under the Criminal Procedure Act.
Report on the Rule against Hearsay , Bill, section 62 3 d. Rules of the Supreme Court , Ord. The Supreme Court Practice , p. At present the facility for taking evidence on commission is not really effective to avoid expense as the parties and their lawyers are entitled to attend such a hearing. This would necessitate the amendment of the relevant Rule of Court. It should also be permissible to receive evidence on affidavit in the absence of a deponent where his presence would involve undue expense or inconvenience.
However, it is considered that statements on affidavit should only be admissible for this reason when made from personal knowledge. These powers to admit evidence taken on commission and statements on affidavit are likely to be of particular importance in proceedings in the lower courts where criminal charges are less serious and the amounts involved in civil cases are small.
The existing procedure by which one party may call on another to admit a specific fact under pain of having to pay the costs if the refusal is unreasonable, should, it is considered, be extended to District Court proceedings. The second safeguard recommended to prevent a proliferation of evidence of negligible value is a requirement that an out-of-court statement of an unavailable person should be proved by the best available evidence. Thus an oral statement should be proved by a witness who heard it, if one is available, and a statement in a document should be proved by production of the original document if this is available.
Basic to their scheme was the distinction between an immediate and a remote record in section 61 of their draft Bill which reads:. See Report on the Rule against Hearsay , pp. It is considered that such elaboration would not be necessary in legislation not restricting the categories of out-of-court statements which are admissible and it would be preferable to provide in general terms that an out-of-court statement must be proved by the best available evidence.
The third safeguard is that advance notice should be given of any out-of-court statement which it is proposed to tender in evidence. The English Criminal Law Revision Committee, while recommending a notice procedure for out-of-court statements in trials on indictment suggested that there should be no similar requirement for summary trials.
Report on Evidence , Evidence Code , section 29 4. Report on the Law of Evidence , pp. Eleventh Report , op. In this way the actual hearing will be simplified. A requirement of notice is likely to cause hardship only where there are unrepresented litigants. This latter case can be met by adjourning proceedings whenever the other side may be prejudiced by the reception of out-of-court statements of which no notice has been given. There was also the danger that a party who has to give notice of a hearsay statement might find that the other side's witnesses tailor their case to meet it.
One difficulty which may arise with the requirement of notice under present procedures in civil cases should be noted. It may be impossible to give notice because a witness. In prosecutions on indictment such a witness may be compelled to give evidence on deposition before the trial under section 7 of the Criminal Procedure Act but there is no similar procedure in summary trials or civil litigation.
This already gives rise to problems in any case where a party to litigation has to rely on the testimony of or documents in the possession of a third person who is not well-disposed or who is under pressure not to seem to co-operate. In their Third Interim Report submitted in the Committee on Court Practice and Procedure recommended that a witness who has refused to give a statement of evidence to the party approaching him should be compellable by order of the court to furnish it in the form of a sworn statement if he has refused to give an ordinary statement in the first instance.
Unless some provision along these lines is made, it may be difficult to insist on the requirement of notice in cases where the refusal of a prospective witness to give an account of an out-of-court statement of another person or to produce a document prevents adequate notice from being given. In such a case the only satisfactory solution may be to grant an adjournment but this could increase costs and would be unworkable in jury trials.
It is common practice to admit hearsay evidence if the other party does not object. There is some doubt as to whether this is in accordance with the law.
To cover the case of unrepresented persons or failure to object by legal advisers, the court should have discretion to exclude an inadmissible out-of-court statement to which no objection is raised. In framing legislation it will be necessary to decide whether the provisions applying to out-of-court statements should extend beyond express assertions to implied assertions i. In several codes, e. But these are codes which prohibit hearsay generally.
Where out-of-court statements are generally admissible, albeit. The New South Wales Law Reform Commission recommended a provision making admissible an out-of-court statement not objected to.
But they included in the draft Bill annexed to their Report a sub-section saving the existing situation in criminal cases whereby an unrepresented accused person who does not object may still appeal against the admission of inadmissible evidence, and a represented accused person may do so in some circumstances.
An example of the second kind of implied assertion would be provided by a case in which it is sought to show that X was dead at a particular time by calling a witness to swear that he saw a doctor cause X's body to be placed on a mortuary van after examining him at that time. Cross on Evidence , pp. It is considered that out-of-court statements should be defined to include conduct which is intended to be assertive and all statements, whether or not they are intended to be assertive. But there is no reason why conduct not intended to be assertive should be treated differently from other circumstantial evidence and regarded as a statement.
In certain cases, corroboration is required as a matter of law. In addition, there are a number of cases where there is a rule of practice that the judge must warn the jury of the danger of acting on uncorroborated evidence and, where there is no jury, the tribunal must warn itself of this danger. However, subject to giving such a warning they may, in such cases, act on the evidence despite the absence of corroboration. The most important of these are cases where it is sought to sustain a conviction on the uncorroborated evidence of an accomplice or of a child.
It should be noted that New South Wales Law Reform Commission rejected the view that a distinction should be drawn between statements not intended to be assertive and conduct not intended to be assertive for the purposes of the hearsay rule. Corroboration is a separate item of evidence implicating the person against whom the testimony is given in relation to the matter concerning which corroboration is necessary.
Of its nature it must necessarily be extraneous to the witness whose evidence is to be corroborated. It is established that a person's own out-of-court statement cannot constitute corroboration of his testimony. The English Civil Evidence Act section 6 4 has made specific provision to this effect. But nothing is said in that statute about the case where an out-of-court statement of another person is tendered to corroborate the testimony of the witness who narrates it. However, the Ontario Law Reform Commission in their Report on the Law of Evidence included the following provision in the draft Evidence Act which they proposed It is considered that a similar provision should be adopted in Ireland but it should be extended to cover cases where a warning as to the danger of acting without corroboration is required by practice, as well as those where corroboration is required by law; it might also be extended to cases where the evidence sought to be corroborated is that of a person who relayed it from the maker of the statement to the witness who proves it in court.
It is considered that it would also be appropriate to follow the English example of giving statutory formulation to the existing rule that the out-of-court statement of a person does not constitute corroboration of his testimony in court. Statements of opinion and statements based on hearsay, which would normally be inadmissible, are admissible in evidence if made by an expert witness in the course of his testimony. The cross-examination of expert witnesses is important in view of the latitude they are allowed and there might be objection to allowing them the same latitude in out-of-court statements when they are not subject to cross-examination.
It might be argued that any informants on whom they base statements of facts not within their personal knowledge should be called to testify if available. This would be consistent with the general scheme of legislation proposed and would have much merit in cases where a particular statement of fact was obviously fundamental to an opinion expressed by an expert.
However, it is suggested that this question is best tackled in the general context of expert evidence. It is considered, therefore, that a provision should be included excluding expert evidence from the application of the proposed legislation.
See Chapter 10 infra. A statement should be defined to include conduct which is intended to be assertive and any verbal utterance or statement in a document whether or not it is intended to be assertive.
An out-of-court statement should be admissible as evidence of the facts therein when no objection is made to its admission. The judge should have discretion to exclude an out-of-court statement if it is of insufficient probative value or if its admission would operate unfairly against any party. The judge should have discretion to admit depositions, evidence taken on commission and statements on affidavit where the importance of the evidence does not justify the expense of bringing a witness to court.
An out-of-court statement of a witness should not be taken as corroboration of his testimony or that of any witness called to prove the making of the statement.
The law relating to the admissibility of business and administrative records has been amended in other common law jurisdictions where the rule against hearsay has been retained. This matter is considered in Chapter 4 of this Working Paper. The other existing exceptions to the rule against hearsay are considered in Chapter 6.
The hearsay rule excludes the out-of-court statements of witnesses in so far as they are tendered as evidence of the facts asserted. However, such a statement may also be relevant to the credibility of the witness in that it reveals consistency or inconsistency with his testimony in court.
But even if it is sought to be proved only for this limited purpose, it may be excluded by the rule against self-corroboration, sometimes called the rule against narrative. According to this, a witness may not give evidence that, on a past occasion, he made a statement consistent with his testimony in court and other witnesses may not be called to prove that he made any such statement.
Any previous statement inconsistent with his testimony in court may be proved but such a statement may only be used to discredit the witness's sworn testimony and is not evidence of the facts asserted in it. Certain exceptional cases where the prior consistent statements of a witness may be tendered in evidence must be noted. Firstly, in prosecutions for sexual offences, a complaint made voluntarily by the victim as soon as could reasonably be expected after the incident is admissible to support the complainant's credibility and as evidence of lack of consent, where this is in issue, but it does not amount to corroboration where this is required as a matter of law.
See The People v. O'Sullivan [] I. McLoughlin 71 I. Commonwealth v. Clery Mass. While it has been stated in the Court of Criminal Appeal in England that the fact of a complaint having been made but not its contents may be proved even if the victim does not testify R.
Wallwork 42 Cr. Fahy [] 2 I. Burke 47 I. Phillips on Evidence , Vol. II, p. Fox v. General Medical Council [] 3 All E.
One Patrick Ryan, called for the defence, testified that he had seen the will forged and had been offered a sheep as a bribe to secure his silence. In cross-examination, Ryan was asked about hostility between the plaintiff and himself arising out of the fact that he had refused to marry the plaintiff's daughter having made her pregnant.
In rebuttal of the implicit suggestion that Ryan had given false testimony on account of the resulting enmity, the defence were allowed to prove that he had told the story to another person before any enmity arose. It has been suggested recently in England that evidence may be adduced of a prior consistent statement of a witness whenever the other side raises an inconsistent statement of that witness 72 but this proposition conflicts with earlier English authority as well as the bulk of United States case law and was expressly disavowed in Ireland in R.
Coll 24 L. It seems there must at least be an implicit suggestion by the other side that the witness had recently made up the story in his testimony. In addition to these three recognised exceptions, the prohibition on prior consistent statements is disregarded, as a matter of practice, in criminal cases where everything said by the accused when charged is proved even if this consists wholly or partly of statements corroborating his testimony in court.
In Canada such admissibility has been justified by reference to the doctrine of res gestae. Ahmed v. Brumfit Sol. Storey 52 Cr.
Graham [] S. Risby [] 2 S. As the person who made the statement is present in court and subject to cross-examination on its contents and the circumstances in which it was made, the main objection to the reception of out-of-court statements has no application to the previous statements of a witness.
The first reason usually given for the exclusion of such previous statements is that an unsworn statement out of court generally adds little or nothing to testimony to the same effect made on oath and is, therefore, superfluous. While these considerations may be valid for the general run of the out-of-court statements of witnesses, there are cases where the circumstances in which such a statement was made give it a guarantee of veracity additional to or superior to sworn testimony in court.
The most common example is where a statement is made soon after an incident by a witness whose recollection of the matter has since become hazy or even non-existent. At present, unless the previous statement comes within the limited category of documents from which a witness may refresh memory in court, its contents cannot be put in evidence.
The loss liable to be caused by their exclusion was exemplified in the Kenyan case. Gillie v. Posho Ltd [] 2 All E. It was held by the Privy Council that a witness who swore that the offer made by him was accepted before publication of the advertisement should not have been allowed to prove a letter written by him before publication referring to the contract although the contents of the letter, written before any dispute could have been anticipated, greatly enhanced the veracity of his evidence in Court.
The consistency of out-of-court statements of different persons made before the authors could have concocted a story together may also be significant. Thus, a man, when arrested for assault, states that he was acting in self-defence; his wife witnessed the incident and, without having had the opportunity to know what her husband has said, corroborates his account precisely.
The second reason given for the exclusion of the previous statements of a witness is the danger of fabrication. If proofs of evidence taken at the instance of one of the parties or his lawyers were tendered as evidence instead of oral testimony, these would inevitably reflect the preoccupations of the questioner. As the California Law Revision Commission argued in The prohibition against leading questions on direct examination would be avoided and much of the protection against perjury provided by the requirement that in most cases testimony be given under oath in court would be lost.
The oral examination of a witness by counsel for the side calling him, called the examination in chief, has a special value in eliciting the truth. Contrary to what is commonly supposed by laymen, the way in which a witness responds to it is often much more informative as regards his reliability than his reaction to cross-examination by the opposing side.
However, it is not necessary to exclude all previous statements to ensure that such oral examination-in-chief of witnesses takes place. Under the English Civil Evidence Act previous statements of a witness are generally only admissible at the conclusion of his examination-in-chief and then only with the leave of the court. The Law Reform Committee, upon whose report the Act was based, anticipated that the provision would work thus:.
They would expect. Under this, the out-of-court statements of witnesses are declared generally admissible but the leave of the court is required before the admission of a proof of the witness's evidence. Section 32 3 of the draft Bill, which governs the matter provides:. The Committee also suggested para. The admission of the previous statements of a witness would also have the incidental advantage of sweeping away the artificial distinctions that have become embedded in the exceptions to the present rule against self-corroboration between sexual and non-sexual assaults.
Accordingly, it is considered that an out-of-court statement of a witness should be admissible as evidence of the facts asserted subject to the proviso that any such statement should not be given in evidence before the conclusion of the examination-in-chief of the witness who made it, without the leave of the court.
Like other out-of-court statements they should be liable to exclusion at the judge's discretion. However, Rule of the United States Federal Rules of Evidence limits the admissibility of prior statements of witnesses to inconsistent statements, statements rebutting fabrication by the witness and statements of identification of a person made after perceiving him.
No reasons have been advanced for this. It would be valuable for the other side to be able to investigate the circumstances and terms of such a previous statement.
The requirement of notice would discourage parties from relying on previous statements which do not add materially to the testimony in court. As in the case of any other out-of-court statement, notice should be waived where it becomes relevant as a result of factors outside the control of the party tendering it.
Thus, for example, no notice should be required where it is desired to prove a previous statement of one's own witness to counter an allegation in cross-examination that his recollection has become hazy with lapse of time.
A provision making previous statements of witnesses admissible would enable the side calling a witness to adduce evidence of statements supplementing his testimony as well as statements to the same effect confirming it. This is likely to be of importance in cases where a witness no longer has a full recollection of events which he perceived and about which he is called to testify.
At present this situation is governed largely by the somewhat complex rules relating to the refreshing of a witness's memory. According to these, a witness may refresh his memory by referring in court to a document made or, at least, verified by him at the time of an incident. Kennedy C. Carpenter [] I. The first requisite is that the written note should have been made at the time of the matter to which it refers or within such time afterwards that, in the opinion of the Judge, recollection of the facts will still have been fresh It is not necessary that the witness should have any independent recollection of the transaction to which the note relates nor even that the note should literally refresh the memory of the witness, or awaken actual recollection.
If the witness can say that, from seeing his own writing, he is sure of the fact stated therein, such statement by him is admissible in evidence of the fact. In the earlier Irish case Lord Talbot de Malahide v. Cusack 17 Ir. In The People A. Charles Wilson 26 July , unreported the Court of Criminal Appeal held it permissible to allow a witness to refresh his memory from a statement transcribed by the police on the basis of his statement.
II, Ch. Cross on Evidence P. However, a distinction is drawn between cases where memory is genuinely revived and those where a witness merely swears to a fact because it is in a document in that the original must be produced in the latter case unless it has been lost whereas a copy will suffice in the former. But such cross-examination does not make the document evidence in its own right unless the cross-examiner so wishes. However, if the latter cross-examines on parts of a document other than those used to refresh memory, the side calling the witness may put it in evidence.
These complex rules may be characterised as of a type which get the law of evidence a bad name. But, in their tortuous way, they are effective to bring before the court most out-of-court statements of witnesses which possess probative value additional to their oral testimony, although it must be said that they are not much utilised except by police witnesses referring to their notebooks.
The acceptance of the practice of reading over previous statements to revive recollection before giving evidence also reduces the gaps in testimony arising from hazy recollection. But it remains possible to envisage situations where a previous statement made by a witness which is of some probative value cannot be used. Dying Declaration:. Another exception in some jurisdictions is what is said by a person who was dying and knew he or she was dying. The rationale of this admission into evidence is that a person is unlikely to lie if they know they are about to die and, presumably, face their Maker.
This exception has been eliminated in some jurisdictions since the rationale has been questioned. Documents Made in the Regular Course of Business:. Perhaps the most commonly used exception is the entry into evidence of documents that were routinely made in the regular course of business. This typically allows the entry into evidence of invoices and statement of accounts demonstrating sums due and owing from the defendant.
The rationale is that every business keeps such records and could not long survive if the records were not accurately kept. The usual collection case uses this exception to the hearsay rule since otherwise the court would have to require the person who created each invoice and statement of account to be in court to testify to the truth of the document and in some cases, with documents dozens of years old and numbering in the thousands, it would be almost impossible to find the persons who did create the documents.
Note that the documents cannot be introduced into evidence without a witness testifying that they were created in the regular course of business and answering questions during cross examination as to methods to create the documents, to check their accuracy, etc. And if there is a truly contested issue as to a document a party claims they were made without checks and balances and has proof they are inaccurate courts will often require witnesses who made the actual documents to appear to defend them.
Note that this exception applies to non-business records as well, such as records kept by public entities or records of events regularly kept in a non-business context.
Prior Inconsistent or Consistent Statements:. Impeachment of a witness by past statements, either under oath or not, or written statements of a witness that are inconsistent with current testimony are often allowed into evidence. Statements About Mental or Physical State :. Past statements pertaining to internal condition state of mind; amount of pain, etc.
Spontaneous or Contemporaneous Statements:. Often the courts will allow in a statement made concurrent with an event, especially if spontaneous.
It was all my fault. Statements by Children or Victims of Elder Abuse:. In cases involving sex crimes or abuse or neglect cases as to children, hearsay by a child under the age of twelve either direct or in a police report who was a victim may be admitted in the discretion of the court. See all Criminal Law. Criminal Law Queensland. See all Criminal Law Queensland. Criminal Law New South Wales. Criminal Law Australian Capital Territory. Criminal Law Victoria. See all Criminal Law Victoria.
Vic What is a Contested Hearing? Criminal Law South Australia. See all Criminal Law South Australia. Criminal Law Tasmania. See all Criminal Law Tasmania. Criminal Law Western Australia. See all Criminal Law Western Australia.
Criminal Law Northern Territory. See all Criminal Law Northern Territory. See all Civil Law. Civil Law Australian Capital Territory. Civil Law New South Wales. Civil Law Northern Territory. See all Civil Law Northern Territory. Civil Law Queensland. See all Civil Law Queensland. Civil Law South Australia. See all Civil Law South Australia. Civil Law Tasmania. See all Civil Law Tasmania. Civil Law Victoria. See all Civil Law Victoria. Civil Law Western Australia.
See all Civil Law Western Australia. See all Family Law. See all Drink Driving. Drink Driving Queensland. See all Drink Driving Queensland. However, exceptions do exist, and such statements can sometimes be admitted. An oral or written statement could be hearsay if it refers to something said by someone who is not in court.
Say Ann is a witness in a burglary case against Matt. Ann testifies that she heard Nancy tell Edwin she saw Matt steal a computer. Generally, rules of evidence prevent hearsay from being admitted because the information cannot be verified.
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