HEARSAY

I. Rationale for the Hearsay rule__________________________________________3

II. Problems with the Hearsay rule in Singapore____________________________3
Conceptual uncertainty________________________________________________________3
Archaic provisions in Evidence Act______________________________________________3
Judicial uncertainty___________________________________________________________4
Schematic uncertainty_________________________________________________________4
III. Nature of the hearsay rule___________________________________________4
The Hearsay rule is not established by the EA_____________________________________4
Lee Chez Kee v PP [2008] SGCA 20, at [67]______________________________________4
Roy S Selvarajah v PP [1998] 3 SLR 517 (HC)____________________________________5
IV. The Hearsay rule___________________________________________________5
The common law definition: Cross on Evidence___________________________________5
Local acceptance of the common law definition____________________________________5
Soon Peck Wah v Woon Chye Chye [1998] 1 SLR 234______________________________5
Latest CA decision: not appropriate to adopt common law definition__________________5
Lee Chez Kee v PP [2008] SGCA 20, at [73] - [74]; VK Rajah JA_____________________5
V. Elements of the rule___________________________________________________6
Not hearsay where the statement reveals the state of mind of a party (state of mind of the party
must be relevant)______________________________________________________________6
PP v Subramaniam, [1956] MLJ 58; [1956] 1 WLR 965, 970 (PC)_____________________6
R v Ratten [1972] AC 378 (PC) (see below)_______________________________________7
R v Kearley [1992] 2 AC 228 (HL) (see below)____________________________________7
R v Blastland [1986] AC 41 (HL)_______________________________________________7
EA, s. 14__________________________________________________________________8
Not hearsay if the making of the statement constitutes the facts in issue___________________8
Choo Pit Hong Peter v PP [1995] 2 SLR 255 (HC)_________________________________8
VI. Types of assertions that constitute hearsay______________________________9
A. Express assertions: by statement or by conduct_______________________________9
Chandrasekera v The King [1937] AC 220 (PC)____________________________________9
R v Gibson (1887) 18 QBD 537________________________________________________9
B. Implied assertions: by statement____________________________________________9
Why do we draw a distinction between implied and express assertions?________________________9
The cases________________________________________________________________________10
Teper v R [1952] AC 480 (PC)________________________________________________10
Walton v R (1989) 166 CLR 283 (84 ALR 59)____________________________________10
R v Ratten [1972] AC 378 (PC)_______________________________________________13
R v Kearley [1992] 2 AC 228 (HL)_____________________________________________14
Wright v doe d Tatham (1837) 7 Ad & E 313; 112 ER 488__________________________19
C. Implied assertions: by conduct____________________________________________20
Wright v doe d Tatham (see above)_____________________________________________20
CPC, s. 378(4)_______________________________________________________________21
Notes____________________________________________________________________21
EA, s 8(2)___________________________________________________________________21
Notes____________________________________________________________________21

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 HEARSAY

D. Negative hearsay (assertions by omission)_________________________________22

The position at common law_________________________________________________________22
R v Patel [1981] 3 All ER 94 (CA)_____________________________________________22
R v Shone (1983) 76 Cr App Rep 72 (CA)_______________________________________22
The position under the Evidence Act___________________________________________________22
Sagurmull v Manraj [1900] 4 CWN ccvii________________________________________23
VII. Loopholes to the hearsay rule______________________________________23
A. Statements tendered to prove the makers state of mind_______________________23
Cases where it has worked___________________________________________________________23
R v Ratten [1972] AC 378 (PC) (see above)______________________________________23
Problem: Even if not hearsay, it may not be relevant to the facts in issue_______________________23
R v Kearley (see above)_____________________________________________________23
R v Blastland [1986] AC 41 (see above)_________________________________________23
B. Hearsay and real evidence________________________________________________24
R v Rice [1963] 1 QB 857 (CCA)______________________________________________24
Interface between hearsay and real evidence in the context of mechanical or technological output__24
A video film or photograph________________________________________________________24
Reg. v. Tolson (1864) 4 F. & F. 103, 104 Willes J.:_________________________________24
A sketch_______________________________________________________________________25
R v Percy Smith [1976] Crim LR 511___________________________________________25
A photofit_____________________________________________________________________25
R v Cook [1987] QB 417_____________________________________________________25
PP v Ang Soon Huat [1991] 1 MLJ 1 (HC)_______________________________________26
Seminar_______________________________________________________________27

2
 HEARSAY

I. Rationale for the Hearsay rule

Hearsay evidence is inferior evidence.

Witness did not personally perceive facts.
He cannot verify the truth of facts of which he has no personal
knowledge
Danger of miscommunication
Did the witness really hear him say that?
Possibility of fabrication.
The Court cannot observe the demeanour of the maker of the
statement.
The maker of the statement was not bound by oath when he made
the statement
A witness who testifies in court from personal knowledge is
aware that if he testifies falsely, he may be prosecuted for
perjury.
In contrast, a witness who testifies on what someone else said
has little to lose if he distorts the true facts or exaggerates
The maker of the statement cannot be cross-examined.
The accuracy of the makers perception and his veracity cannot
be assessed and tested in cross-examination
The Trier of fact may put too much emphasis on hearsay evidence.
Hearsay evidence, even if admitted under one of the exceptions
to the rule, gets little weight
But the problem is that when we had jury trials, when hearsay
evidence is admitted, there is a risk that the jury may put too
much emphasis on hearsay evidence
The accused should only be convicted on reliable evidence.

II. Problems with the Hearsay rule in Singapore

Conceptual uncertainty
Uncertainty as to the nature and scope of the doctrine.
What the term hearsay should include is a matter not just of
semantic definition, but of principle and policy.
There are also difficulties concerning the rationale and scope of the
exceptions to the rule.

Archaic provisions in Evidence Act

The EA statute is 115 years old (enacted in 1893 and based on the
Indian Evidence Act of 1872).
The great majority of the provisions are original.

3
 HEARSAY

(There have been some amendments although these have been

piecemeal.)
Although the Law of Evidence in other countries has advanced
considerably, much of the EA remains rooted in the 19th century.
For example, the issue of legitimacy in the Evidence Act is
addressed by rules governing presumptions (see s 114 of the
EA), although the matter is now resolvable through
identification by a DNA sample.
Judicial uncertainty
The tendency of the courts over many years has been to refer to
common-law decisions in deciding on the admissibility of hearsay
(sometimes without reference to the statutes).
This has created uncertainty in the relationship between the
statutes and common law.
Recent decisions have acknowledged this difficulty.

Schematic uncertainty
In criminal cases, admissibility of hearsay has to be considered
under the EA and the Criminal Procedure Code.
Both statutes are characterised by very different schemes of
admissibility.
In civil cases, only the EA (and certain specific statutes) governs
admissibility of hearsay. Find the relevant provisions under the
EA and the CPC, put them down at the end of tonight
Is it time for a more holistic treatment of the subject?

III. Nature of the hearsay rule

The Hearsay rule is not established by the EA
The recent cases are clear that the hearsay rule is not
established by the EA
Stephen didnt want to include exclusionary rules in the EA
Judges werent professionals in Stephens time; So Stephen
didnt want the law to be too complex
His structure was tell me what is admissible
Now the position is clear that the EA doesnt have a rule against
hearsay Lee Chez Kee at [67]; Selvarajah [40]
S. 62, which concerns direct evidence, is not a rule against
hearsay
Some courts have said that it is but those are old decisions
Lee Chez Kee has clarified that it is wrong to hold that s. 62
contains the hearsay rule (at [73]):
VK Rajah JA: To say that s 62 imports the hearsay rule
is to confuse a description of the mode of proof with
the type of proof

4
 HEARSAY

But the EA admits out of court statements of relevant facts to the

extent that the statements are declared relevant by ss. 17 40:

Lee Chez Kee v PP [2008] SGCA 20, at [67]

VK Rajah JA:
It must be clarified that the EA does not contain an express
definition of hearsay. Instead, the EA contains an implicit
acknowledgement of the rule. Implicitly acknowledged
through the exceptions to hearsay provisions
As Prof Tan Yock Lin perceptively notes in his seminal work,
Criminal Procedure (LexisNexis, 2007) vol 2 at ch XVI para [3],
hearsay in the EA is perceived as being a statement of relevant
facts and as such is an irrelevant fact as opposed to a statement
which is itself declared by the EA to be a relevant fact.
This is assured by the absence of any general provisions making
statements of relevant facts themselves relevant facts.
Where exceptions to the hearsay rule are intended to be
relevant, they are rendered specifically as relevant facts.
There are thus no real exceptions in the EA; more accurately,
the EA gives effect to these common law exceptions to the
hearsay rule.

Roy S Selvarajah v PP [1998] 3 SLR 517 (HC)

Yong Pung How CJ at [40]:
It is trite law that the evidence of a statement made to a witness
by a person who is not himself called as a witness is hearsay and
inadmissible when the object of the evidence is to establish
the truth of what is contained in the statement:
Subramaniam v PP [1956] 1 WLR 965.
It is not hearsay if the statement is tendered to show the
fact that it is made.
The Evidence Act does not formulate the rule against hearsay
evidence.
Rather it adopts an inclusionary rule, stating what may be
admitted in evidence.
Under s 5 of the Evidence Act, evidence may be given in any
proceedings of fact in issue or relevant fact.
The common law definition of hearsay corresponds with the
terminology of the Evidence Act.
Statements of relevant facts are hearsay and inadmissible
unless they fall within an exception to the hearsay rule since
they are adduced to prove the facts to which they refer.
However, where the statement itself is relevant, then it is the
fact that the statement was made which is in issue.

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 HEARSAY

IV. The Hearsay rule

The common law definition: Cross on Evidence
An assertion other than one made by a person while giving
oral evidence in the proceedings is inadmissible as evidence of
any fact asserted. (Cross on Evidence, 6 ed, p 38)

Local acceptance of the common law definition

Soon Peck Wah v Woon Chye Chye [1998] 1 SLR 234

Yong Pung How CJ at [27]
The assertions of persons made out of court whether orally or
in documentary form or in the form of conduct tendered to
prove the facts which they refer to (ie facts in issue and
relevant facts) are inadmissible unless they fall within the
scope of the established exceptions.

Latest CA decision: not appropriate to adopt common law definition

Lee Chez Kee v PP [2008] SGCA 20, at [73] - [74]; VK Rajah JA

There appears to be two problems with this judicial view as set
out in Soon Peck Wah.
(1) First is the problem with the proposition that the hearsay rule
finds implicit expression in s 62 of the EA.
As Prof Tan correctly notes in Criminal Procedure at ch XVI para
[52], this view continues to mistake a prohibition on the use of
indirect evidence for a prohibition on the use of hearsay
evidence. To say that s 62 imports the hearsay rule is to
confuse a description of the mode of proof with the type of
proof.
Section 62 is not concerned with relevancy; it simply tells us
how to prove facts which already have been found to be
relevant by the definition of relevancy in the earlier parts of the
EA.
(2) The second problem with this judicial view is the reference to
the applicability of the common law exceptions to the hearsay rule.
Prof Pinsler in Approaches to the Evidence Act: The Judicial
Development of a Code (2002) 14 SAcLJ 365 at 382 neatly
summarises the many facets of this problem.
On one level, there is no question that there are a number of
exceptions in English law which are not recognised or only
acknowledged in modified form by the EA.
Their application would thus be inconsistent with the EA.

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 HEARSAY

Further, Sir James Stephen intended to comprehensively

formulate the traditional exceptions to the hearsay rule in
ss 17 to 41 of the EA.
The application of all the common law exceptions without
discrimination would dislocate this scheme.

V. Elements of the rule

Not hearsay where the statement reveals the state of mind of a party (state of mind of the
party must be relevant)

PP v Subramaniam, [1956] MLJ 58; [1956] 1 WLR 965, 970 (PC)

Df charged with being a terrorist. Df claimed that terrorists
threatened him with death if he didnt join the terrorist cause.
Evidence of the threatening statement was not hearsay. What was in
issue was the defence of duress, which depended on how the Df
reacted to the terrorists irrespective of whether the threats would
have been actually carried out. The statement was adduced as
evidence not of the truth of its assertions (that Df would be killed) but
rather the fact that the statement was made (the Df himself perceived
the making of the statement with his sense of hearing).
Facts:
Df was found wounded and was charged with being a terrorist;
Df claimed that he was forced by terrorists to operate with them
and that he would be killed if he did not comply;
trial judge excluded the Dfs evidence (that terrorists told him
that they would kill him) as hearsay
Held: not hearsay (Mr. LMD De Silva)
Evidence of a statement made to a witness by a person who is
not himself called as a witness may or may not be hearsay.
[The test]:
It is hearsay and inadmissible when the object of the
evidence is to establish the truth of what is contained in
the statement.
It is not hearsay and is admissible when it is proposed to
establish by the evidence, not the truth of the statement, but
the fact that it was made.
The fact that the statement was made, quite apart from its truth,
is frequently relevant in considering the mental state and
conduct thereafter of the witness or of some other person in
whose presence the statement was made.
In the case before their Lordships statements could have been
made to the appellant by the terrorists, which, whether true or
not, if they had been believed by the appellant, might

7
 HEARSAY

reasonably have induced in him an apprehension of

instant death if he failed to conform to their wishes.

R v Ratten [1972] AC 378 (PC) (see below)

Df charged with murdering wife by shooting her. Telephone operator
was called as witness to give evidence that the wife called her to ask
for the police and that she was hysterical. Held: statement was
admissible as original evidence of the Vs state of mind (this was
relevant to the defence of accident). Even if it were hearsay, it was
admissible under the doctrine of res gestae.

R v Kearley [1992] 2 AC 228 (HL) (see below)

The state of mind of the callers was not relevant to the fact in issue
(which was whether the accused had the intention to supply drugs).

R v Blastland [1986] AC 41 (HL)

Df charged for murder and buggery. Sought to adduce evidence from
persons who were told by M about the murder before the murder was
public knowledge. Held: hearsay. The state of mind of M was per se
irrelevant. What was relevant was the implication that therefore M
killed the boy. However, if this was the object of adducing the
evidence, then it was hearsay.
Facts:
Df was charged with buggery and murder of a boy
Df sought to adduce evidence in the form of testimony from
various witnesses that M told them about the boys murder
before the murder was public knowledge
Df argued that this evidence was not hearsay because it was
adduced to prove Ms state of mind (i.e. his knowledge of the
murder)
Held (Lord Bridge): state of mind irrelevant
What a person said or heard said may well be the best and most
direct evidence of that person's state of mind.
This principle can only apply, however, when the state of mind
evidenced by the statement is either itself directly in issue
at the trial or of direct and immediate relevance to an
issue which arises at the trial.
It is at this point, as it seems to me, that the argument for the Df
breaks down.
The issue at the trial of the appellant was whether it was proved
that the Df had buggered and murdered V.
Ms knowledge that V had been murdered was neither
itself in issue, nor was it, per se, of any relevance to the
issue.

8
 HEARSAY

What was relevant was not the fact of Ms knowledge but

how he had come by that knowledge.
He might have done so in a number of ways, but the two
most obvious possibilities were either that he had witnessed
the commission of the murder by the appellant or that he had
committed it himself.
The statements which it was sought to prove that M made,
indicating his knowledge of the murder, provided no
rational basis whatever on which the jury could be
invited to draw an inference as to the source of that
knowledge.
To do so would have been mere speculation.
Thus, to allow this evidence of what M said to be put before the
jury as supporting the conclusion that he, rather than the
appellant, may have been the murderer, in the light of the
principles on which the exclusion of hearsay depends, to be
open to still graver objection than allowing evidence that
he had directly admitted the crime.
If the latter is excluded as evidence to which no probative value
can safely be attributed, the same objection applies a fortiori to
the admission of the former.

EA, s. 14
Facts showing existence of state of mind or of body or bodily
feeling
14.Facts showing the existence of any state of mind, such as
intention, knowledge, good faith, negligence, rashness, ill-will or
good-will towards any particular person, or showing the existence of
any state of body or bodily feeling, are relevant when the existence of
any such state of mind or body or bodily feeling is in issue or relevant.

Not hearsay if the making of the statement constitutes the facts in issue

Choo Pit Hong Peter v PP [1995] 2 SLR 255 (HC)

The Dfs false statements to the CAD constituted the crime with which
he was charged and so they did not infringe the hearsay rule.
Facts:
Df was charged under s. 193 of the Penal Code 1 for intentionally
making false statements to CAD officers
1
193. Punishment for false evidence. Whoever intentionally gives false
evidence in any stage of a judicial proceeding, or fabricates false evidence for the
purpose of being used in any stage of a judicial proceeding, shall be punished with
imprisonment for a term which may extend to 7 years, and shall also be liable to
fine; and whoever intentionally gives or fabricates false evidence in any other case,
shall be punished with imprisonment for a term which may extend to 3 years, and
shall also be liable to fine.

9
 HEARSAY

Df challenged the admissibility of the statements

Held: Yong Pung How CJ
Any challenge to the admissibility of the statements made to
the CAD officers is misconceived
Regardless of whether the statements were confessions, the
statements are not evidence to prove the two charges of giving
false evidence
They are facts in issue and cannot be excluded even if they were
made as a result of threats, inducements or promises
If that was indeed the case, the proper course is to rely on one
of the general defences, if any are available, in the Penal Code.

VI. Types of assertions that constitute hearsay

A. Express assertions: by statement or by conduct

Chandrasekera v The King [1937] AC 220 (PC)

Deceased could not speak because her throat was cut by an assailant.
Gestures made by her as to the identity of her assailant was hearsay
but admissible under one of the exceptions.
Facts:
Womans throat was cut; on being asked immediately afterwards
who did this to her, she indicated by signs that it was the Df who
attacked her;
One of the Witnesses also asked her directly if it was the Df who
attacked her and she nodded
Held: gesture was hearsay but was admissible under s. 32(a)
(Lord Roche)
The main question is whether any part of the evidence as to
what passed between the deceased and the witness should have
been admitted.
In their Lordships' opinion the ruling of the trial judge was
correct.
It is to be observed that in the section the word used is "verbal"
and not "oral" which is used elsewhere in the Ordinance
It is unnecessary to decide whether the question put "Was it [the
defendant]?" and the nod of assent would have constituted an
oral statement made by the deceased, but their Lordships are
clearly of opinion that it constituted a verbal statement made by
her.
The case under consideration closely resembles the case
of a person who is dumb and is able to converse by means
of a finger alphabet
Remarks: this is an example of an express assertion by conduct

10
 HEARSAY

R v Gibson (1887) 18 QBD 537

V was hit by a stone. Passer-by told him that the person who threw the
stone went into a house where the Df was found. Held: passer-bys
statement was hearsay.
Facts:
Df quarrelled with Vs son in a pub.
Df and V left the pub.
As V walked opposite Dfs home, V was struck in the head with a
stone.
A passer-by, who was not called as witness, told V that the
person who threw the stone went into a house to which she
pointed.
Df was found in that house and was convicted by jury
Held: passer-bys statement was hearsay (Lord Coleridge)
It is admitted that the statement was not made in the
prisoner's hearing, and therefore could not legally be given in
evidence against him

B. Implied assertions: by statement

Why do we draw a distinction between implied and express assertions?

Does the absence of intentional fabrication in the case of an
implied assertion make it more reliable than express assertions?
Is conduct more reliable than words i.e. that a person who acts
on the basis of his belief?
Some issues:
Does the EA exclude implied assertions expressly, impliedly or
not at all
CPCs position is clear s. 378(4)
Lord Bridge in R v Kearley
Put shortly, the speakers' words and conduct are motivated
quite independently of any possible intention to mislead and are
thus exempt from the suspicion attaching to express assertions
and are, in that sense, self-authenticating
if in doing what he does a man has no intention of asserting the
existence or non-existence of a fact, it would appear that the
trustworthiness of evidence of this conduct is the same whether he
is an egregious liar or a paragon of veracity. Accordingly, the lack
of opportunity for cross-examination in relation to his veracity or
lack of it would seem to be of no substantial importance.
Accordingly, the usual judicial disposition to equate the "implied" to
the "express" assertion is very questionable. (Falknor, "The 'Hear-
Say' Rule as a 'See-Do' Rule: Evidence of Conduct" (1961) 33 Rocky
Mt.L.Rev. 133, 136.)

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 HEARSAY

The cases

Teper v R [1952] AC 480 (PC)

Bystanders statement your place burning and you are going away
from the fire was an implied assertion that the Df was in the vicinity
at the time of the fire
Facts:
Df charged with arson of his shop;
A police officer testified as follows:
I heard a woman's voice shouting Your place burning and
you going away from the fire;
The woman was not called as a witness
Held: excluded; statement was hearsay and did not fall within the
res gestae exception (Lord Normand)
Rationale of the hearsay rule:
The rule against the admission of hearsay evidence is
fundamental.
It is not the best evidence and it is not delivered on oath.
The truthfulness and accuracy of the person whose words are
spoken to by another witness cannot be tested by cross-
examination, and the light which his demeanour would throw
on his testimony is lost.
[court proceeds to consider if the res gestae exception applies;
the court seemed to accept, without expressly saying so, that
implied assertions can constitute hearsay]

Walton v R (1989) 166 CLR 283 (84 ALR 59)

The statement hello daddy by a child over the telephone amounted
to an implied assertion that the child was speaking to its father.
Mason CJ held that the possibility of fabrication was so unlikely that
the admission of the statement could not be regarded as improper.
the hearsay rule is less rigorous in its application to implied
assertions than it is in the case of express assertions. It is for the trial
judge to decide whether or not a particular implied assertion is of a
kind to which the rationale underlying the hearsay rule would be
relevant
Facts:
Df charged with murder of wife.
Three witnesses testify that the wife told them that she was
going to meet the Df
PP argued that the purpose of adducing this evidence was to
establish Vs state of mind that she intended to meet Df;
this state of mind is relevant because this piece of evidence,
taken with other evidence, leads to the inference that she
acted on her intention

12
 HEARSAY

Mason CJ, Wilson, Dawson and Toohey JJ all held that this
was admissible as original evidence of the Vs state of mind.
The trial judge took care to advise the jury that this evidence
was only admissible as evidence of Vs state of mind: that she
intended to meet with the Df and not for the further
proposition that she actually met the Df.
Another witness testifies:
(a) Prior to the murder, the wife spoke to someone on
the phone and had arranged to meet the caller and that
the caller was the husband
PP argues that this was not hearsay because the purpose
of tendering the evidence is to show that the wife intended
to meet the husband;
As with the testimony of the other three witnesses, this
was admissible as original evidence of the Vs state of
mind that she intended to meet the caller.
HOWEVER, the testimony was otherwise merely hearsay
assertions concerning the identity of the caller on the
other end of the line.
*(b) Wife passed the phone to her son who said Hello
Daddy to the caller.
Wilson, Dawson and Toohey JJ held that this was hearsay
insofar as it was adduced to prove the identity of the
caller.
We are concerned with Mason CJ judgment as to the
admissibility of this piece of evidence
Held:
Wilson, Dawson and Toohey JJ
The words uttered by the boy on the telephone were no
more than hearsay and were therefore, strictly speaking,
inadmissible.
Whilst it is possible that in some circumstances a greeting
may constitute circumstantial evidence from which the
identity of the person greeted can be inferred, that is not
necessarily the case
In this case, particularly as the child's greeting and
subsequent conversation followed immediately upon the
assertion by his mother that the person to whom he was
about to speak was "daddy", the value, if any, of what the
child said lay in the truth of the implied assertion that
the person to whom he was speaking was in fact
"daddy"
Mason CJ
The objection made to the admissibility of the Witness
testimony that the child said hello daddy is based upon the

13
 HEARSAY

assumption that the statement contains an implied

assertion by the child as to the identity of the caller and the
conclusion that this assertion amounts to inadmissible
hearsay
What is an implied assertion?
An implied assertion is one which can be inferred or
implied from a statement or from conduct, and will
generally not be deliberately intended by the author
It may take the form of conduct or, as here, statements,
but in either case the same principles should be applied
with respect to the admission in evidence
It is necessary to apply the same rules regarding
admissibility to both implied and express assertions
However, where an assertion is not made directly by the
words or actions of a person, but is derived by implication
from those words or actions there will, depending on the
relevant circumstances of the case, often be special
considerations relevant to the determination of
admissibility
*The hearsay rule should not be applied inflexibly
When the dangers which the rule seeks to prevent are not
present or are negligible in the circumstances of a given
case there is no basis for a strict application of the rule
Equally, where in the view of the trial judge those dangers
are outweighed by other aspects of the case lending
reliability and probative value to the impugned evidence,
the judge should not then exclude the evidence by a rigid
and technical application of the rule against hearsay
It must be borne in mind that the dangers against which
the rule is directed are often very considerable, as
evidenced by the need for the rule itself.
But especially in the field of implied assertions there
will be occasions upon which circumstances will combine
to render evidence sufficiently reliable for it to be placed
before the jury for consideration and evaluation of the
weight which should be placed upon it, notwithstanding
that in strict terms it would be regarded as inadmissible
hearsay.
Here:
The extreme unlikelihood of concoction on the part of
the child would have been a factor favouring admission of
the statements.
The lack of opportunity for cross-examination of the
child as to his perception or understanding would have
been a factor pointing in the opposite direction

14
 HEARSAY

Often in the case of an implied assertion the first factor
will be of sufficient weight to justify the trial judge in
admitting the evidence as reliable for the purposes of
evaluation by the jury
To this extent it can be said that the hearsay rule is less
rigorous in its application to implied assertions than it is in
the case of express assertions
It is for the trial judge to decide whether or not a
particular implied assertion is of a kind to which the
rationale underlying the hearsay rule would be relevant
If the judge determines that an assertion is express or is
otherwise one which it would be dangerous to admit as
hearsay, then the ordinary rules of hearsay and the
various exceptions to the general exclusionary rule will
then be applied
But where the assertion is one made by implication
only, it is necessary for the judge to balance the
competing considerations in order to determine
admissibility, since the dangers associated with
hearsay evidence will not all necessarily be present
Can such an approach be applied to express assertions?
In very rare cases it may be that such an approach will
be appropriate also for an express assertion, for the same
reasons, but it will be uncommon for a situation to arise in
which an express assertion is made which does not come
within a recognized exception to the hearsay rule and yet
which despite being tendered as proof of what it asserts
would not offend the basis of that rule
In particular, an express assertion will often lend itself
more readily to a suspicion of concoction
Evaluation:
Lets the judge decide what weight to give to it; even if the
evidence is admitted, its not the end
Mason court should have this liberty; if it has some weight it
may make a difference in the outcome
Note: does the EA and the CPC allow for this liberty? Again a
problem with having an archaic code.

R v Ratten [1972] AC 378 (PC)

Df charged with murdering wife by shooting her. Telephone operator
was called as witness to give evidence that the wife called her to ask
for the police and that she was hysterical. Held: statement was
admissible as original evidence of the Vs state of mind (this was
relevant to the defence of accident). Even if it were hearsay, it was
admissible under the doctrine of res gestae.

15
 HEARSAY

Facts:
Df charged with murder by shooting his wife.
Df argued that he discharged the gun accidentally while
cleaning it
To rebut this evidence, PP called evidence from a telephone
operator who testified that she received a call from the wife who
was sobbing/ hysterical. The wife asked for the police and gave
her address.
PPs case was that this happened just before the shooting
Df argued that the operators evidence was hearsay
Issue:
Did wifes request involve an implied assertion that she was
about to be attacked (by her husband)?
Or is statement admissible as original evidence to show wifes
state of mind (fear) and to rebut husbands defence that he
accidentally shot her when cleaning his shotgun?
i.e. not to assert that she was about to be attack but to show
that there was a sobbing and hysterical woman
Fear is used as a rebuttal of the defence of accident (if it was
accidental, she wouldnt have feared)
Or can we take Mason CJs approach leave it to the court to
determine (but this was before Walton v The Queen)
Held: (Lord Wilberforce)
The evidence is not hearsay because it is evidence of the Vs
state of mind, which is relevant to the defence of accident:
The mere fact that evidence of a witness includes evidence
as to words spoken by another person who is not called, is no
objection to its admissibility
Words spoken are facts just as much as any other
action by a human being.
If the speaking of the words is a relevant fact, a witness may
give evidence that they were spoken
A question of hearsay only arises when the words
spoken are relied on "testimonially," i.e., as
establishing some fact narrated by words
The evidence relating to the act of telephoning by the
deceased was, in their Lordship's view, factual and relevant
The knowledge that the caller desired the police to be called
helped to indicate the nature of the emotion - anxiety or fear
at an existing or impending emergency.
It was a matter for the jury to decide what light (if any) this
evidence, in the absence of any explanation from the
defendant, who was in the house, threw upon the situation at
the house
But then the Df argues that the evidence was tendered as
evidence of an assertion by the deceased that she was

16
 HEARSAY

being attacked by the accused, with the effect that it was

hearsay.
Their Lordships do not consider that there is any hearsay
element in the evidence
But they think it right to deal with the appellant's submission on
the assumption that there is: i.e., that the words said to have
been used involve an assertion of the truth of some facts stated
in them and that they may have been so understood by the jury
[Lord Wilberforce goes on to find that even if the evidence
were hearsay, it would be admissible under the doctrine of
res gestae]
Evaluation:
The fact that their Lordships saw that it was necessary to
address the possibility that the evidence contained an implied
assertion suggests that it is difficult to determine when evidence
of a state of mind may contain an implied assertion.

R v Kearley [1992] 2 AC 228 (HL)

Prosecution sought to adduce evidence of certain telephone calls
made to the Dfs house. The callers requested to speak to the Df and
asked to be supplied with drugs. Held: (Majority) Evidence not
admissible to show callers states of mind or belief irrelevant;
Evidence not admissible to show that K was a supplier of drugs:
Callers were all impliedly asserting the fact that K was a drug dealer
(hearsay). (Minority) The calls and visits were not circumstantial
evidence showing that K established a market for the supply of drugs.
Facts:
A small quantity of drugs was found in Ks home; this was
insufficient to charge him with trafficking
Police remained on premises for several hours for the purpose
of securing more evidence
Police answered numerous telephone calls. Callers asked for
Chippie (Ks nickname) to supply the usual.
Visitors also came to the house asking for Chippie so that they
could purchase drugs.
PP didnt call these callers and visitors to testify
But police officers gave evidence of their conversations with the
callers and the visitors
The purpose of evidence: to show that K was a supplier of drugs
and therefore was guilty of trafficking.
Issue:
Did the statements carry an implied assertion that K was a
supplier?
Not an express assertion: the callers didnt actually say that
K was a supplier

17
 HEARSAY

By seeking drugs from him, they impliedly asserted that K

was a supplier
Trial judge admitted the evidence and Court of Appeal endorsed
admissibility.
Held: Majority view (Lords Bridge, Ackner and Oliver)
Lord Bridge
(i) The first question is whether the fact of the request for
drugs having been made is in itself relevant to the issue
whether the defendant was a supplier
The fact that words were spoken may be relevant for
various purposes, but most commonly they will be so when
they reveal the state of mind of either the speaker or
the person to whom the words were spoken when that
state of mind is itself in issue or is relevant to a
matter in issue
Here:
The state of mind of the person making the request for
drugs is of no relevance at all to the question whether
the defendant is a supplier
The sole possible relevance of the words spoken is
that by manifesting the speaker's belief that the
defendant is a supplier they impliedly assert that
fact
If the speaker had expressly said to the police officer
that the defendant had supplied him with drugs in the
past, this would clearly have been hearsay
The question then is if the words coupled with any
associated action of a person not called as a witness are
relevant solely as impliedly asserting a relevant fact,
may evidence of those words and associated actions be
given notwithstanding that an express assertion by
that person of the same fact would only have been
admissible if he had been called as a witness?
English authorities are clear that the answer is no:
Wright v. Doe d. Tatham
The recent decision of Reg. v. Blastland [1986] A.C. 41
clearly affirms the proposition that evidence of words
spoken by a person not called as a witness which are
said to assert a relevant fact by necessary implication
are inadmissible as hearsay just as evidence of an
express statement made by the speaker asserting the
same fact would be
(ii) The next question is whether, if evidence from a police
officer that he heard one person, in the absence of the
defendant, requesting a supply of drugs from the defendant

18
 HEARSAY

is inadmissible to prove the defendant's intent to supply on

the ground that it is hearsay, the evidence becomes
admissible if the prosecution are in a position to tender
evidence relating to a plurality of such requests made at
the same place and on the same day
This proposition is without authority
Although the probative value of a plurality of such
requests is high, it is clear that the probative force of
hearsay evidence in particular circumstances has never
afforded a ground for disregarding the hearsay rule
Lord Bridge fully appreciates the arguments in favour of a
limitation to the operation of the hearsay rule for implied
assertions
However he feels that any change should come from
Parliament and not the courts:
However strong the temptation to legislate judicially
in favour of what is seen as a "common sense" result
and however tardy Parliament may appear to be in
reforming an area of the law which is seen to be in
need of radical reform, the uncertainty and confusion
to which well intentioned attempts at judicial
legislation can lead have been clearly demonstrated by
recent decisions of your Lordships' House.
The operation of the hearsay rule in modern conditions
is in many respects unsatisfactory.
But Lord Reid's warning that in this field of the law a
judicial "policy of make do and mend is no longer
adequate" is as true today as it was in 1964.
However long overdue we may feel an overhaul of
the hearsay rule in criminal cases to be, we should
not be deluded into thinking that we can achieve
it piecemeal
Lord Ackner
Each of the requests for drugs was evidence of the state of
mind of the person making the request
But the state of mind of the person making the request
was not an issue at the trial; accordingly evidence of his
request was irrelevant and therefore inadmissible
The application of the hearsay rule does not, on the facts
so far recited, fall for consideration. The evidence is not
admissible because it is irrelevant
The hearsay rule is triggered if the very nature of the
request or requests carries with it a permissible
implication that the appellant was a supplier of drugs

19
 HEARSAY

In deciding whether the rule is being breached, it is essential

to examine the purpose for which the evidence is tendered
That the proposition is asserted by way of necessary
implication rather than expressly cannot, to my mind, make
any difference
The object of tendering the evidence would be to establish
the truth of what is contained in the statement. That is
precisely what the rule prohibits
If a convincing case can be made out for relaxing the hearsay
rule's application to the type of situation which has arisen in
this appeal, then it must be achieved by legislation

20
 HEARSAY

Lord Oliver
The mere fact that people telephoned or called, in itself, is
irrelevant for it neither proves nor renders probable any
other fact.
In order to render evidence of the calls relevant there has
to be added the additional element of what the callers
said, and it is here that the difficulty arises
What was said - in each case a request for drugs - is, of
course, probative of the state of mind of the caller
But the state of mind of the caller is not the fact in
issue and is, in itself, irrelevant
It becomes relevant only if and so far as the existence of
other facts can be inferred from it
Here, the state of mind of the callers can only be probative of
the fact in issue (the intention of the Df only if:
(i) what was said amounts to a statement, by necessary
implication, that the appellant has in the past supplied
drugs to the speaker (those callers who asked for the
usual)
(ii) it imports the belief or opinion of the speaker that the
appellant has drugs and is willing to supply them (the
other callers who did not intimate that they had
transacted with Df previously)
We are now directly up against the hearsay rule:
Point (i) is hearsay:
If it had been sought to introduce the evidence of a
police constable to the effect that a person not called as
a witness had told him, in a conversation in a public
house, that the appellant had supplied drugs, that
would have been inadmissible hearsay evidence and so
objectionable
It cannot make any difference that exactly the same
evidence is introduced in an indirect way by way of
evidence from a witness that he has overheard a
request by some other person for "the usual," from
which the jury is to be asked to infer that which cannot
be proved by evidence of that other person's direct
assertion
Point (ii) is irrelevant:
If, at the trial, the prosecution had sought to adduce
evidence from a witness not that drugs had been
supplied but that it was his opinion or belief that drugs
had been or would be supplied, that evidence would
be inadmissible as amounting to no more than a

21
 HEARSAY

statement of belief or opinion unsupported by

facts upon which the belief is grounded
A fortiori that same inadmissible belief or opinion
cannot be introduced by inference from the reported
statement of someone who is not even called as a
witness
Ratten v The Queen is distinguishable:
In that case, the evidence had a double relevance
(i) The fact that a call was made from the premises at
all at that time was directly in issue and the
circumstance in which it was made (frightened caller),
was clearly material
That is a long way from the instant case where the
conversation is relied upon not as a circumstance
surrounding an act of the accused but as indicative
of the speaker's view of the accused's intentions.
(ii) In so far as it was considered permissible in Ratten
to draw from the contents of the call the inference that
the deceased was saying that she was under attack
from her husband and that that was true, that could be
justified only by treating the contents as part of the res
gestae
It has not been contended that the calls in the
present case, made after the arrest of the appellant,
can come into that category
Can it make any difference that in fact the evidence
submitted related to a large number of callers and
requests made within a matter of a few hours?
The multiplicity of calls can go only to indicating that a
shared belief is more likely to be true than a belief held by
a single person or a few people
That, however, goes to weight or reliability, not to
admissibility and it cannot in itself make admissible that
which is inadmissible
Any reform should come from Parliament:
very conscious of the difficulty of obtaining direct
evidence from witnesses in the prosecution of drug
offences and there may well be a good case for relaxing
the rule which excludes hearsay either generally or in
cases such as the present so long as the jury receives an
appropriate direction as to the circumspection with which
hearsay evidence should be received.
But the rule has been evolved and applied over many
years in the interest of fairness to persons accused of

22
 HEARSAY

crime and if it is now to be modified that should, in my

opinion, be done only by the legislature
Held: Minority view
Lord Browne-Wilkinson
(i) First issue: whether the making of calls by persons
seeking drugs is relevant at all to the charge that the
accused had an intent to supply
the fact that there were a number of people seeking to buy
drugs was legally relevant and admissible as showing that
there was a market to which the appellant could sell, even
though such evidence was also capable of giving rise to an
impermissible secondary inference, viz. that the callers
believed Chippie supplied drugs
(ii) Second issue: if relevant, could those facts be proved by
the police officers' evidence of the calls or did such evidence
breach the hearsay rule
Telephone or personal calls, in the absence of proof of the
purpose of the calls, are evidence of nothing
In cases such as the present there is no contravention of
the hearsay rule if a witness gives evidence of what the
callers said provided the evidence is not being used
testimonially (i.e to prove the truth of what they said) but
only to explain the callers' purpose in making the
calls
Wright v doe d Tatham is not in point
The calls show an admissible fact, i.e. the existence of a
potential market, the case is not in point.
The letters in Wright v. Doe d. Tatham were being
tendered testimonially to prove the belief of the writers:
the calls in this case are being tendered to prove a
relevant fact and not the belief of the callers.
Accordingly the hearsay rule does not apply
The reasoning which has to the view that evidence of
multiple calls is both relevant and admissible applies also to
one call alone
But a single call would have little probative value in
showing the existence of a market
The possible prejudice to the accused by the jury drawing
the wrong inference would be so great that I would expect
a judge in his discretion to exclude it2
Evaluation:
The majority decision can be justified on basis that an out of
court express assertion that K is a drug dealer would not have
been admissible.
2
As is possible under English law, but not Singapore law Phyllis Tan

23
 HEARSAY

The majority view is consistent with R v Teper

But the minority view is compelling
We are not relying on an implied assertion we are relying
on the fact that 17 people called at his house.
If it were just one person calling at his house, then it would
be an implied assertion that the Df was a trafficker
The majority view is that the number of callers is irrelevant
Remarks:
Why is this is a case of implied assertion and not express
assertion?
Lord Griffiths: The requests for drugs made by the callers were
not hearsay as generally understood, namely an out-of-court
narrative description of facts which have to be proved in evidence.
The callers were neither describing the appellant as a drug dealer
nor stating their opinion that he was a drug dealer. They were
calling him up or visiting him as customers, a fact revealed by the
words they used in requesting drugs from him.

Wright v doe d Tatham (1837) 7 Ad & E 313; 112 ER 488

Issue was whether the testator was mentally competent to make a
will; party sought to adduce letters that were written to the testator
for the purpose of showing that the writers must have assumed his
sanity. Held: Letters were rightly excluded because they were
tendered to prove the truth of the writers assumptions as to the
testators sanity.
Facts:
One of the facts-in-issue was the testators sanity
Letters written to the testator were adduced to show that the
writers assumed the testators sanity
Held (Parke B)
All facts as have not been admitted by the party against whom
they are offered, or some one under whom he claims, ought to
be proved under the sanction of an oath, either on the trial of
the issue or some other issue involving the same question
between the same parties or those to whom they are privy.
the letters are without doubt admissible on an issue in which
the fact of sending such letters by those persons, and within
that limit of time, is relevant to the matter in dispute;
"But the question is, whether the contents of these letters are
evidence of the fact to be proved upon this issue, - i.e., the
actual existence of the qualities which the testator is, in
those letters, by implication, stated to possess: and those
letters may be considered in this respect to be on the same
footing as if they had contained a direct and positive
statement that he was competent.

24
 HEARSAY

For this purpose they are mere hearsay evidence, statements

of the writers not on oath, of the truth of the matter in question,
with this addition, that they have acted upon the statements on
the faith of their being true, by their sending the letters to the
testator."
Evaluation:
The majority in Kearley approved Wright
Would the minority in Kearley have said that since 3 people have
written the letters, let us look at the fact that 3 people have
written those letters and well decide on the weight later
i.e. admit the statement and let the court determine whether it
should draw the inference/implication that Kearley was insane

C. Implied assertions: by conduct

No cases have actually considered implied assertions by conduct.

We only have examples given by Parke B in Doe d Tatham
Rupert Cross argued that a distinction should be made between
implied assertions in statements and conduct:
Cross felt that implied assertions made by conduct were more
reliable than those made by statement
deeds speak louder than words would a Captain set sail
unless he was sure that the ship were seaworthy
Crosss views are found in s. 378(4) of the CPC
s. 378(4) recognises implied assertions in statements (but not
conduct) as hearsay
This was because the amendments to the CPC which included s.
377 385 were based on a report of the English Criminal Law
Revision Committee (of which Cross was a member)
*The crucial point to note is that implied assertions would
not be mentioned in provisions dealing with the
exceptions to the hearsay rule if the rule did not apply to
implied assertions the implication is that the hearsay
rule does apply to implied assertions by statements

Wright v doe d Tatham (see above)

Others were supposed on the part of the plaintiff in error, which,
at first sight, have the appearance of being mere facts, and
therefore admissible, though on further consideration they are
open to precisely the same objection.
Of the first description are the supposed cases of a letter by a third
person to any one demanding a debt, which may be said to be a
treatment of him as a debtor, being offered as proof that the debt
was really due; a note, congratulating him on his high state of

25
 HEARSAY

bodily vigour, being proposed as evidence of his being in good

health; both of which are manifestly at first sight objectionable.
*To the latter class3 belong:
the supposed conduct of the family or relations of a testator,
taking the same precautions in his absence as if he were a
lunatic;
his election, in his absence, to some high and responsible office;
the conduct of a physician who permitted a will to be executed
by a sick testator;
the conduct of a deceased captain on a question of
seaworthiness, who, after examining every part of the vessel,
embarked in it with his family;
all these, when deliberately considered, are, with reference to the
matter in issue in each case, mere instances of hearsay evidence,
mere statements, not on oath, but implied in or vouched by the
actual conduct of persons by whose acts the litigant parties are not
to be bound.

CPC, s. 378(4)
Admissibility of out-of-court statements as evidence of facts
stated.
378.(1) In any criminal proceedings a statement made, whether
orally or in a document or otherwise, by any person shall, subject to
this section and section 379 and to the rules of law governing the
admissibility of confessions, be admissible as evidence of any fact
stated therein of which direct oral evidence by him would be
admissible, if

(4) For the purposes of this section and of sections 379 to 385, a
protest, greeting or other verbal utterance may be treated as stating
any fact which the utterance implies.

Notes
CPC, s 378(4) appears to exclude implied assertions by conduct
from the scope of hearsay rule.

EA, s 8(2)
Motive, preparation and previous or subsequent conduct
8.(1) Any fact is relevant which shows or constitutes a motive or
preparation for any fact in issue or relevant fact.

(2) The conduct of any party or of any agent to any party to any suit
or proceeding in reference to such suit or proceeding OR in
3
Those cases which are not manifestly objectionable at first sight, but on closer
inspection fall foul of the hearsay rule

26
 HEARSAY

reference to any fact in issue therein or relevant thereto, and

the conduct of any person an offence against whom is the
subject of any proceeding, is relevant IF such conduct influences
or is influenced by any fact in issue or relevant fact, and whether
it was previous or subsequent thereto.

Notes
One could say that such conduct constitutes implied assertions by
conduct
But s. 8(2) provides that conduct of the parties to the suit or their
agents is admissible
The rationale is that the parties conduct is spontaneous and self-
incriminating
People dont usually do something against their interests
So our main concern is with the conduct of non-parties

D. Negative hearsay (assertions by omission)

The position at common law

R v Patel [1981] 3 All ER 94 (CA)

Df was charged with assisting someone to enter UK illegally. The
prosecution sought to adduce evidence that A was not listed in the
Home Office records and that therefore he was an illegal immigrant.
The absence of his name was in fact an assertion that he was an
illegal immigrant and therefore not admissible.
Facts:
Df was charged with assisting X to enter UK illegally.
PP called immigration officer to give evidence that Xs name was
not in the Home Offices immigration records of legal entrants.
Held: (Bristow J)
CA held that the officers evidence and the immigration records
were inadmissible. The records could have been admitted if the
officer who compiled and had custody of the records testified as
to their effect.
In the judgment of this court, the Home Office records relied
on by the prosecution in this case are hearsay, just as were the
commercial records in question in Myers v. Director of Public
Prosecution, and since they cannot therefore speak for
themselves in criminal proceedings, and are not within those
classes of documents which, since the Criminal Evidence Act
1965, have been allowed to speak for themselves in criminal
proceedings, an officer responsible for their compilation and
custody should have been called to give evidence that the

27
 HEARSAY

method of compilation and custody is such that if Ashraf's name

is not there, he must be an illegal entrant.

R v Shone (1983) 76 Cr App Rep 72 (CA)

Facts:
Df was charged with received stolen car springs.
Stock clerk and manager testified that: (i) that stock records
showed receipt of springs; and (ii) there was no indication in the
records that the springs had been sold or otherwise disposed of.
Held: (Leonard J) not hearsay
The clerk and manager were entitled to explain the significance
of the absence of entries on the cards signifying the absence of
entries.
This was direct evidence on the basis of which the jury was
entitled to come to the conclusion that the springs were stolen.

The position under the Evidence Act

The scope of the hearsay exceptions in the EA extends to positive
as opposed to negative assertions.
It is thus arguable that such evidence is not hearsay and is
admissible under either s. 9 or s. 11 of the EA
Illustration (b) to s. 11 supports this interpretation

(b) The question is whether A committed a crime.

The circumstances are such that the crime must have been
committed either by A, B, C or D. Every fact which shows that the
crime could have been committed by no one else and that it was
not committed by either B, C or D is relevant.

Sagurmull v Manraj [1900] 4 CWN ccvii

Issue was whether X travelled to Calcutta on a business trip. The
firms account book did not make any mention of any expenses
connected with the trip. The book normally included such
expenses.
Held:
Book was admitted pursuant to ss. 94 and 115 of the Indian EA to
how that the trip was not made.

4
Facts necessary to explain or introduce relevant facts
5
When facts not otherwise relevant become relevant

28
 HEARSAY

VII. Loopholes to the hearsay rule

A. Statements tendered to prove the makers state of mind

Cases where it has worked

R v Ratten [1972] AC 378 (PC) (see above)

Df charged with murdering wife by shooting her. Telephone operator
was called as witness to give evidence that the wife called her to ask
for the police and that she was hysterical. Held: statement was
admissible as original evidence of the Vs state of mind (this was
relevant to the defence of accident). Even if it were hearsay, it was
admissible under the doctrine of res gestae.

Problem: Even if not hearsay, it may not be relevant to the facts in issue

R v Kearley (see above)

The PP tried to argue that they were not relying on any assertion
but, rather, wanted to show the state of mind of the callers
The obvious response was why? Why would you want to show the
state of mind of the callers? The answer was that the prosecution
wanted to show the underlying fact that Kearley was a supplier.

R v Blastland [1986] AC 41 (see above)

29
 HEARSAY

B. Hearsay and real evidence

R v Rice [1963] 1 QB 857 (CCA)

Facts:
R charged with conspiracy to commit fraud with several persons
including M.
PPs case turned on whether R took a plane from London to
Manchester with another conspirator.
PP wanted to adduce evidence that a used ticket found in a
repository of used tickets used for that flight showed Rs and
Ms names.
Held: Winn J Not hearsay.
The ticket was admissible as circumstantial evidence from
which the jury may draw any inference it chose, including the
fact that R was on the flight:
The relevance of that ticket in logic and its legal
admissibility as a piece of real evidence both stem from the
same root, viz., the balance of probability recognised by
common sense and common knowledge that an air ticket
which has been used on a flight and which has a name upon
it has more likely than not been used by a man of that name
or by one of two men whose names are upon it
Evaluation: JP 86
The difficulty about this interpretation is that it relies on a
statement (contained in the ticket) of a relevant fact (whether
Rice flew to Manchester on the day in question)
The ticket would only be circumstantial and real evidence if the
ticket itself, and not the assertions contained in it, were relevant
For example, if an issue was the age or condition or size or the
nature of the ticket, then it would be real evidence which the
court could observe and from which it could draw necessary
inferences.

Interface between hearsay and real evidence in the context of mechanical

or technological output

A video film or photograph

Reg. v. Tolson (1864) 4 F. & F. 103, 104 Willes J.:

"The photograph was admissible because it is only a visible
representation of the image or impression made upon the minds of the
witnesses by the sight of the person or the object it represents; and, it
therefore is, in reality, only another species of the evidence which
persons give of identity, when they speak merely from memory."

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 HEARSAY

Real evidence
Even though a photo or a video is an out of court assertion, a video
or a photo captures the exact situation.
No chance of unreliability unless the camera has a fault.
It is as if the camera is a witness the photo or video is a
statement of the camera
You will have to argue that the video output is not clear or that that
the persons on the video were not the parties

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 HEARSAY

A sketch

R v Percy Smith [1976] Crim LR 511

The case concerned attempted murder. The a sketch of the defendant
had been made by a police officer in accordance with a description of
him provided by a young girl who had seen him at a relevant time
near the scene of the crime. An unsuccessful objection was made by
counsel for the defence to the admissibility of that sketch. Not
hearsay because the sketch is the assertion of the person who saw the
accused.
Lawton LJ:
the argument put forward on behalf of the appellant was
that the document could only have come into existence as a
result of the conversation between [the witness] and the police
officer making the sketch, and that what [the witness] had said
to the police officer and what he had said to her was not
admissible evidence because it was hearsay.
That was right.
But the prosecution at the trial never sought to put in evidence
what was said by [the witness] to the police officer and vice
versa.
It was submitted that what was said was a necessary link
between [the witness] and the sketch.
In our judgment it was not. [the witness], using her memory, had
directed the sketching hand of the police officer.
The result of exercising her memory in that way was to produce
a sketch which was admissible in evidence.
It was her sketch made through the hand of the police
officer.
We can see no reason for saying that that sketch was not
admissible in evidence
Evaluation:
There is an element of the sketch artists own assertions
However, the cases are clear
The only way to challenge the evidence is to argue that the
artist wasnt qualified or that the sketch was not done properly
or attack the witness who provided the description

A photofit

R v Cook [1987] QB 417

Photofit is not hearsay. The photofit artist is merely doing what the
witness could do if he possessed the requisite skill. A photofit is akin
to a photograph, albeit that it is imperfect and not made

32
 HEARSAY

contemporaneously with the witnesss perception of the relevant fact

or fact in issue.
Facts: Victim of robbery and indecent assault described her
assailant to a police officer who put together a photo-fit picture. At
trial, Df submitted that a photo-fit picture was hearsay
Held: (Watkins LJ) not hearsay
The rule is said to apply not only to assertions made orally, but
to those made in writing or by conduct.
Never, so far as we know, has it been held to apply to this
comparatively modern form of evidence, namely, the sketch
made by the police officer to accord with the witness's
recollection of a suspect's physical characteristics and mode of
dress and the even more modern photofit compiled from an
identical source.
Both are manifestations of the seeing eye, translations of vision
on to paper through the medium of a police officer's skill of
drawing or composing which a witness does not possess.
The police officer is merely doing what the witness could
do if possessing the requisite skill.
When drawing or composing he is akin to a camera without, of
course, being able to match in clarity the photograph of a
person or scene which a camera automatically produces
There is no doubt that a photograph taken, for example, of a
suspect during the commission of an offence is admissible
We regard the production of the sketch or photofit by a police
officer making a graphic representation of a witness's memory
as another form of the camera at work, albeit imperfectly
and not produced contemporaneously with the material incident
but soon or fairly soon afterwards.
As we perceive it the photofit is not a statement in writing made
in the absence of a defendant or anything resembling it in the
sense that this very old rule against hearsay has ever been
expressed to embrace.
It is we think sui generis, that is to say, the only one of its kind.
It is a thing apart, the admissibility to evidence of which would
not be in breach of the hearsay rule
Both the sketch and photo-fit are manifestations of the seeing
eye
The police officer is merely doing what the witness could do if
possessing the requisite skill

PP v Ang Soon Huat [1991] 1 MLJ 1 (HC)

Facts: Df charged with trafficking heroin. PP needed to prove that
the quantum was more than 15 grams. PP adduced computer
printouts of the results of chromatograph and spectrogram tests.

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Held: (Chan Sek Keong J) Computer printouts of results of the

scientific testing was admissible as real evidence.
The court made a distinction between the situation in which the
computer printouts are nothing more than a regurgitation of
information fed in and are tendered without accompanying oral
evidence (this would constitute hearsay) and the situation in
which the computer not only records but processes and
calculates the information fed into it and there is accompanying
oral evidence to confirm these matters (here the printouts would
constitute real evidence)
Here, not hearsay because it was not a regurgitation of
information fed in
The computer processed, calculated information fed into it and
the information was explained by an expert.
Evaluation:
Because of amendments to the EA, all computer printouts,
regardless of whether they are real evidence or hearsay
evidence, will have to comply with the s. 35 requirements

Seminar
General Remarks:
There is no right answer
Many items of evidence spread across many categories
Chandrasekera: isnt there an implied assertion by conduct
also?
Doesnt matter if there are many ways of looking at it; explain
all the ways that you can look at it
Unless you are very clear on hearsay, try to attempt the other
questions
Explore the different avenues for classification of the evidence,
how you deal with the evidence and exceptions to hearsay
Classification of hearsay

Overview
The same themes come out:
(i) evidence act versus common law
This is crucial because of the recent case of Lee Chez Kee
Read Lee Chez Kee at least para. 66 until the end of hearsay;
stop before discussion on common intention
Crucial because it clarifies the law in Singapore makes it
clear that the common law hearsay rule doesnt apply in
Singapore
Before Lee Chez Kee, there was a lot of grappling as to
whether the hearsay rule can be included under s. 62, some

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 HEARSAY

courts have completely ignored it and applied the common

law
Soon Peck Wah is overruled
Cases like Roy S Selvarajah try to reconcile common law
and EA;
But still need to discuss the common law and answer whether
the common law still applies in light of Lee Chez Kee
(ii) Another problem is the EA v CPC
What happens when CPC is inconsistent with EA
Must leave it to Parliament to legislate and correct
For the purposes of exam: explain the situation in the EA and
the sitatuion in the CPC and discuss whether they are
reconciliable; if not, explain that Parliamnet should correct
inconsistencies
(iii) Types of hearsay
Express assertions by statement
Express assertions by conduct
Implied assertions by statement
Implied assertions by conduct
The problem with implied assertions is that they are based on
inferences; inferences are based on common knowledge and
assumptions; what happens when people dont act i.a.w.
common knowledge? What happens if the Judge doesnt have
in his personal knowledge the experience to deal with the
situation.
(iv) Real evidence
Photographs, photo-fits treated in the same manner; but is
this right? Might want to critique this
S. 35 of the EA: was drafted at a time when computers were
not that commonly used; so there are all these pre-conditions
that you need to satisfy, which in modern day seems odd. At
the moment, we still have to deal with s. 35
(v) Negative hearsay:
Arises where there are omissions in records
There is a school of thought that feels that negative hearsay
shuld be treated more leniently because: (i) it is in a record;
(ii) harder for someone to prove a negative than a positive
The question than arises as to what happens if your data
entry clerks were mistaken conflicting views on negative
hearsay

1. Don has been charged with causing grievous bodily harm to Vic
by stabbing him in a street at about 10pm. Don denies having stabbed
Vic and contends that he was at a cinema at the time of the alleged
offence. At the trial, the prosecution (who does not have any direct

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 HEARSAY

evidence of the alleged crime) intends to adduce the evidence

specified in paragraphs (a) to (d) below. Consider whether the
evidence in these paragraphs are hearsay. [Do not consider the
exceptions to the rule against hearsay or the doctrine of res gestae as
these topics are to be covered in the context of this question in the 2 nd
tutorial (see question 3).]

(a) PW1, who was on the same street at the time of the alleged
stabbing, to testify that he did not see Don stab Vic but did hear an
unidentified person (X) shout out: Don, put that knife down. Xs
whereabouts are unknown.

Ms Khng
With Lee Chez Kee, we can admit evidence that was previously
inadmissible by reason of the hearsay rule Can fit this into s. 9 of
the EA?

but should still discuss the common law position.

Preliminary issue: Is the fact that Don was carrying a knife

relevant?
Don denies having stabbed Vic this means that the actus reus of the
offence is at issue. i.e. whether Don stabbed Vic is a fact in issue.

That Don was carrying a knife is a relevant fact (in the sense of logical
relevance) its existence increases the probability that a fact-in-issue
(the actus reus of the offence) exists.

Does the statement amount to hearsay?

The definition of hearsay:

The assertions of persons made out of court whether orally or

in documentary form or in the form of conduct tendered to
prove the facts which they refer to (ie facts in issue and relevant
facts) are inadmissible unless they fall within the scope of the
established exceptions.
Soon Peck Wah v Woon Chye Chye [1998] 1
SLR 234

The only relevant (in the sense of logical relevance) purpose for the
prosecution adducing evidence of Xs statement is to prove that Don
was carrying a knife. This means that the statement is tendered to
prove the facts to which it refers (i.e. the assertion that Don was
carrying a knife).

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 HEARSAY

(b) PW2, who came to the street after the alleged stabbing, to
testify that he saw a police officer (PO) talking to a person (Y).
PW2 overheard PO asking Y about the identity of the person who had
stabbed Vic. PW2 could not hear what Y said in response but saw Y
making gestures indicating that the person who had stabbed Vic was
very short, very fat and had very long hair. (Don is very short, very fat
and has very long hair.) Y has left Singapore.

Ms Khng
PW2 heard the questions posed to Y. Y was making gestures in
response to the questions.
Diff from chandrasekera

What if the PO

Shouldnt mention s. 62 because of Lee Chez Kee

In light of Lee Chez Kee, may want to familiarise yourself with the
relevancy provisions

Brief answer: PW2s testimony that he saw Y making gestures fitting

Dons description amounts to an implied assertion (by conduct) that
Don was the person who stabbed Vic.

Hearsay evidence can take the form of conduct observed of another

person (Chandrasekera).

PW2s testimony does not amount to an express assertion that Don

was the person who stabbed Vic.

(c) SMS messages sent by five of Dons friends and received on

Dons mobile phone a day before the alleged stabbing. All the
messages were substantially the same and can be represented by the
following statement: Don, please dont hurt Vic. He will pay back
what he owes you. We are really worried about you. Dons friends are
not called as witnesses because they are not identifiable.

Ms Khng
SMS messages are just regurgitations

The problem with R v Kearleys minority uncertain; where do we

draw the line?

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 HEARSAY

CPC is exclusionary; EA is inclusionary; in order to reconcile the two,

we have to resort to certain artificialities.
Doesnt make sense that CPC has a more generous admissibility
framework.

The messages contain an implied assertion that Don was the person
who attacked Vic. As such, it constitutes hearsay because it is
admitted as evidence of the facts to which it refers

Counterarguments:
Argue that the messages constitute real evidence and accordingly
is not hearsay. It is up to the court to draw its inferences from the
real evidence R v Rice
Argue on the basis of the minority decision in R v Kearley that the
purpose of adducing the evidence is not for the underlying
assertion that Don attacked Vic but rather for the purpose of
showing (from the sheer number of identical messages) that Vic
had a motive?... (how will this argument work)
Argue that the evidence is adduced to prove the state of mind of
the senders that they believed that Don would injure Vic

(d) A computer-generated picture of Dons face based on

information supplied by Vic to the police.

Analogous to a sketch (R v Percy Smith) or a photo-fit (R v Cook): the

computer generated picture is a manifestation of the human eye. The
computer is merely doing what Vic could do if he possessed the same
skill.

Ms Khng
Criticise R v Cook many differences between a photograph and a
photo-fit

Note s. 9: facts necessary to explain or introduce a fact in issue.

If Vic is giving evidence, there is no issue. But if Vic is not available,

can we admit the CGI photograph without his presence. This is where
the hearsay issue comes in.

But slightly different from a photo-fit because this is computer

generated less human intervention. Probably requires a technician
to input certain parameters and the computer by a series of processes
generates a photograph matching the criteria entered.

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 HEARSAY

Since this is not a regurgitation of information but involves a

process analogous to calculation, it should not be taken as hearsay.

2. The law of evidence has been unnecessarily complicated by

the doctrine of implied assertions. Evidence of statements or conduct
should always be admitted as circumstantial evidence from which
inferences may be drawn. It is artificial and confusing to consider
some of these inferences as assertions and others as not for the
purpose of admissibility. The only issue is what weight should be
accorded to the inference and this is for the court to decide.
Discuss with reference to the cases considered in the lectures.

Preliminary discussion:
What is an implied assertion?
Mason CJ in R v Walton:
An implied assertion is one which can be inferred or
implied from a statement or from conduct, and will
generally not be deliberately intended by the author
It may take the form of conduct or, as here, statements, but
in either case the same principles should be applied with
respect to the admission in evidence
What is the law on implied assertions?
In the UK, the position is that implied assertions constitute
hearsay (R v Teper, R v Kearley, R v Blastland; Wright v Doe d
Tatham)
In Australia, Mason CJ has suggested that a flexible approach
can be taken towards implied assertions: if the dangers which
the rule seeks to prevent are not present or are negligible in the
circumstances of a given case there is no basis for a strict
application of the rule

Ms Khngs remarks
Competing policies:
Probative value v danger of fabrication/unreliability

The judge/jury argument in the presenters slides:

But this argument applies to hearsay in general:
The problem with that is that one reason why we exclude hearsay
is not just about unreliability; its about fairness:
Especially in criminal cases, the Df should be allowed to
confront the makers of the statement
People who know that they will never have to be responsible for
their statements in court, will find it easier to exaggerate and
distort
So this is not just about best evidence and weight

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 HEARSAY

A judge even with his best knowledge will never know if

someone is concocting or exaggerating evidence.
The judge can never tell whether the maker of the statement
has reason to exaggerate
So note that the reasons for excluding hearsay are manifold

Note:
Be careful not to talk about discretion s. 5 states that relevancy
is exhaustive so the court shouldnt have the discretion to exclude
evidence that doesnt fall within the EA
Also consider Phyllis Tan

My prep
Agree with the statement Disagree with the statement
There are good reasons for Inconsistency with express
drawing a distinction between assertions: if the implication
express and implied assertions: were only made express, it
Conduct is more reliable would be hearsay
than words if in doing Unreliability implied
what he does, a man has no assertions can still be
intention of asserting the unreliable
existence of a fact, his
evidence is trustworthy
Lord Bridge in Kearley: Put
shortly, the speakers' words
and conduct are motivated
quite independently of any
possible intention to
mislead and are thus
exempt from the suspicion
attaching to express
assertions and are, in that
sense, self-authenticating
Need for a flexible approach:
Mason CJ in R v Walton
Even if we admit the evidence,
it does not mean that it will be
conclusive the trier of fact
will be advised to ensure that
he doesnt place too much
weight on evidence that
carries implied assertions
because of the lack of cross-
examination
Unnecessary sophistry in the
current law evidence that

40
 HEARSAY

carries an implied assertion

may nevertheless be admitted
if it concerns the state of mind
of the maker and in
circumstances where the state
of mind of the maker is
relevant
E.g. of R v Ratten
evidence not hearsay
insofar as it constitutes
evidence of a state of mind
but is hearsay and hence
admissible only under the
doctrine of res gestae
insofar as it carries an
assertion as to the identity
of the caller.

Ms Khngs remarks
There are many statements
Breakdown the statements you may agree with some statements
but not the rest
First statement
The law of evidence has been unnecessarily complicated by
the doctrine of implied assertions.
Agree with this
But has it been unnecessarily complicated; is this
development necessary in light of the need for justice in the
case
Was it unnecessary in Kearley to stick to the implied
assertion is hearsay rule
Second statement:
Evidence of statements or conduct should always be admitted as
circumstantial evidence from which inferences may be drawn. It
is artificial and confusing to consider some of these inferences
as assertions and others as not for the purpose of admissibility.
The only issue is what weight should be accorded to the
inference and this is for the court to decide.
Have there been cases where the statements were
considered as implied assertions but actually arent
Look at Chandrasekera: the signs and gestures were not
implied assertions
Is it artificial and confusing to say that in Chandrasekera it is
evidence from which one can draw inferences
At the end of the day all inferences from circumstantial
evidence can be viewed as implied assertions.

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 HEARSAY

The problem is that it gives the judge too much discretion to

the judge if he wants to admit it, he can reason backwards
and say that it is circumstantial evidence
There is a school of thought that implied assertions by conduct
requires conduct where the maker did not intend to assert
anything from his conduct this type of evidence is the most
reliable;
Intended implied assertion (US v Long one of the principal
goals of hearsay is to exclude when a declarant does not
intend to communicate anything
i.e. consider whether we should distinguish between true
implied assertions and cases where there is intentional implied
assertions
With respect to the point that actions speak louder than words:
E.g. of a Captain bringing his family onboard a ship implied
assertion that the ship is seaworthy: epitome of the maxim that
actions speaking louder than words because there are serious
consequences
But consider everyday actions such as handshakes the
consequence is not serious

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