Hearsay Evidence is Not Best Evidence, Part 1

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Hearsay Evidence is not best evidence, part 1

By

S J Tubrazy

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 upon his testimony is lost: Nevertheless the rule admits of certain carefully safeguarded and limited exceptions, one of which is that words may be proved when they form part of the res gestae. The rules controlling this exception are common to the jurisprudence of British Guiana, England and Scotland. It appears to rest ultimately on two propositions, that human utterance is both a fact and a means of commu­nication, and that human action may be so interwoven with words that the significance of the action cannot be understood without the correlative words and the dissociation of the words from the action would impede the discovery of truth. But the judicial applications of these two propositions, which do not always combine harmoniously, have never been precisely formulated in a general principle.

How slight a separa­tion of time and place may suffice to make hearsay evidence of the words spoken incompetent is well illustrated by the two cases cited. In Bedingfield’s case a woman rushed with her throat cut out of a room in which the injury had been inflicted into another room where she said something to persons who saw her enter. Their evidence about, what she said was ruled inadmissible by Cockburn, C. J. In O’Hara’s case, a civil, action, the event was an injury to a passenger brought about by the sudden swerve of the omnibus in which she was travelling. The driver of the omnibus said in his evidence that he was forced to swerve by a pedestrian who hurried across his path. Hearsay evidence of what was said by a man on the pavement at the scene of the accident as soon as the injured party had been attended to was held to be admissible in corroboration of the driver’s evidence. But what was said twelve minutes later and away from the scene by the same man was held not part of the res gestae.

In Christie’s case 1914 A C 545 the principle of the decision in Bedingfield’s case was approved by Lord Reading with whom Lord Dunedin concurred, and no criticism of it is to be found in the speeches of the other noble and learned Lords who sat with them. In the Queen v. Gibson [1887] 18 Q. B. D. 537 the prosecutor gave evidence in a criminal trial that, imme­diately after he was struck by a stone, a woman going past pointing to the prisoner’s door said “the person who threw the stone went in there”. This evidence was not objected to at the trial but it was admitted by counsel for the prosecution in a case reserved that the evidence was incompetent. The conviction was quashed and from their judgments it is clear that the learned judges who took part in the decision were far from questioning the correctness of counsel’s admission. In Gibson’s case the words were closely associated in time and place with the event, the assault. But they were not directly connected with that event itself. They were not words spontaneously forced from the woman by the sight of assault, but were prompted by the sight of a man quitting the scene of the assault and they were spoken for the purpose of helping to bring him to justice.

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