Hearsay Evidence is not best evidence, part 2
S J Tubrazy
The special danger of allowing hearsay evidence for the purpose of identification requires that it shall only be allowed if it satisfies the strictest test of close association with the event in time, place and circumstances. “Identification is an act of the mind, and the primary evidence of what was passing in the mind of a man is his own testimony, when it can be obtained. It would be very dangerous to allow evidence to be given of a man’s words and actions in order to show by this extrinsic evidence that he identified the prisoner, if lie was capable of being called as a witness and was not called to prove by direct evidence that he thus identified him.
There is yet another proposition which can be affirmed, that for identification purposes in a criminal trial the event, with which the words sought to be proved must be soy connected as to form part of the res gestae, is the commission of the crime itself, the throwing of the stone, the striking of the blow, the setting fire to the building or whatever the criminal act may be. The respondent’s counsel submitted that any relevant event or action may be accompanied by words which may have to be proved in order to bring out its true significance. There is a limited sense in which this is true, but it is not always true, and much depends on the use to be made of the evidence. In Christie’s case hearsay evidence of certain words uttered by a child, the victim of an indecent assault, in the presence and hearing of the accused were held to be admissible in explanation of the demeanour of the accused in response to them. But the evidence was held inadmissible for the purpose of showing that the child identified the accused as his assailant. In the present cases identification is the purpose for which the hearsay was introduced, and its admission goes far beyond anything that has been authorized by any reported case.
Before assessing the prejudice caused by the wrongful admission of the hearsay evidence and deciding whether it affected the substantial justice of the trial, the natures and effect of the other evidence must be looked at.