4.19 The hearsay rule under the common law has significantly receded over the past 15 years, in large part because of the narrow definition of a hearsay statement. The hearsay rule provides that only a witness giving evidence could testify to the truth of the assertions he made in evidence. In England & Wales, the hearsay rule was abolished for civil proceedings by s 1(1) of the Civil Evidence Act 1995. The Act applies to all civil proceedings,1 including proceedings in the magistrates’ court.2 By contrast, New Zealand relies upon an expansive reliability exception to the rule rather than differentiating between criminal and civil jurisdictions.3
1 Civil Evidence Act 1995, s 11.
2 The Magistrates’ Courts (Hearsay Evidence in Civil Proceedings) Rules 1999, SI 1999/681.
3 In terms of reliability as applied under the Canada jurisdiction, see the Canadian Supreme Court in R v Khelawon 2006 SCC 57, [2] Cf. Horncastle v R [2009] EWCA 964, [57].
4.20 In England & Wales, a party that intends to adduce hearsay evidence in civil proceedings is required to give the other party or parties notice of his intention and, should it be requested, particulars of the evidence.1 This requirement to give notice is not unique to England & Wales. A criticism of hearsay evidence said to justify the existence of a rule of exclusion is that admission of hearsay would amount to an unjustified element of surprise causing delay and unwarranted disruption in a proceeding.2 This criticism has largely been addressed through the need to give notice of an intention to call a witness.3 In New Zealand, where the requirement for notice can be waived by a judge, it has been suggested in one case that the nature of the statement as hearsay evidence could in effect be overlooked by a determiner of fact by considering the reliability that comes with a ‘course of business’.4 Although the case involved the purchase of a precursor chemical to the manufacture of methamphetamine, the Court
gave an analogy of purchasing petrol at a service station. According to the members of the New Zealand Court of Appeal, a customer purchasing petrol was not relying on the label on the bowser (fuel dispenser), but rather the course of business giving surety to the fact that it was petrol and not diesel coming from the bowser. If this analogy was relied upon in the context of digital evidence, an entirely new rule would develop. It would not be as an exception to the hearsay rule, but in parallel to the rule, causing difficulty not only in differentiating the circumstances in which the hearsay rule would or would not apply, but potentially undermining authenticity and the business document exception. A more robust approach is to acknowledge the hearsay value of the document or electronic record, and then directly address the issue of notice, and if notice is not given, consider whether a waiver is in the interests of justice, rather than attempting to devise a further exception to or subversion of the hearsay rule.
1 Civil Evidence Act 1995, s 2.
2 See Chris Gallavin, Evidence (LexisNexis 2008) 127. The irony of this justification for the rule of exclusion is that argument over the application of the rule was likely to lead to more delay and greater expense as would otherwise have been the case.
3 In the context of New Zealand, see Evidence Act 2006, s 22; in Australia, Evidence Act 1995 (Cth), s 67.
4 R v Lenaghan [2008] NZCA 123. See also Chris Gallavin, ‘R v Lenaghan: is it business as usual in New Zealand despite the reforms of the Evidence Act 2006?’ (2008) 12 E & P 325.
4.21 Returning to the Civil Evidence Act 1995 (as an example of an approach to hearsay applicable to digital evidence across the common law), the Act includes a number of exceptions to the hearsay rule that are particularly relevant to documents stored in digital form. Published works dealing with matters of a public nature, public documents and public records are all admissible under the provisions of s 7(2) of the Civil Evidence Act 1995 – similar to provisions operating in other jurisdictions. More distinctively, where a document can be shown to be part of the records of a business or public authority, the document can be received into evidence in civil proceedings without further proof in accordance with s 9. The wording of this and similar provisions in other jurisdictions means that the form a technology takes will not prevent the admission into evidence of data stored in digital form.
Criminal proceedings
4.22 The right of confrontation under the United States Constitution only applies to criminal proceedings, and evidence that is testimonial in nature. For all other evidence, the hearsay rule applies, with its board application of the reliability exception. As stated above, in England & Wales, the enactment of the Criminal Justice Act 2003 repealed the provisions relating to hearsay in the Criminal Justice Act 1988, and by doing so, reversed the decision on implied assertions in the case of DPP v Kearley,1 as well as abrogated most of the common law of hearsay.2 The operative provision is s 114(1), which reads:
Admissibility of hearsay evidence
(1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if—
(a) any provision of this Chapter or any other statutory provision makes it admissible,
(b) any rule of law preserved by section 118 makes it admissible, (c) all parties to the proceedings agree to it being admissible, or
(d) the court is satisfied that it is in the interests of justice for it to be admissible.
1 DPP v Kearley [1992] 2 AC 228 (HL).
2 Previously, where a computer recorded the numbers of various components that were fitted to motor cars, the print-out was a hearsay statement where it was offered in evidence to prove that a number of components were fitted to a specific motor car: Myers (James William) v DPP [1965] AC 1001 (HL); Michael Hirst, ‘Hearsay, confessions and mobile telephones’ (2011) 75 Journal of Criminal Law 482, 483.
4.23 The provisions of s 114 serve as an introductory provision to the other provisions in that chapter. Section 114 retains the exclusion of the hearsay rule,1 but operates to admit hearsay statements in criminal proceedings within the parameters set out in (a) – (d) (although a number of common law exceptions are retained by virtue of s 118). In addition, s 121 provides for additional requirements for the admissibility of multiple hearsay,2 and s 126 provides for the general discretion to exclude evidence.
1 Tapper, Cross & Tapper on Evidence 602.
2 Evidence from a Police Incident Log was wrongly admitted under s 117 at trial, but on appeal, the members of the court decided that the evidence was correctly admitted under s 121(c), in Maher v DPP [2006] EWHC 1271 (Admin).
4.24 Of particular relevance to electronic evidence is s 129. It reads:
129 Representations other than by a person (1) Where a representation of any fact—
(a) is made otherwise than by a person, but
(b) depends for its accuracy on information supplied (directly or indirectly) by a person,
the representation is not admissible in criminal proceedings as evidence of the fact unless it is proved that the information was accurate.
(2) Subsection (1) does not affect the operation of the presumption that a mechanical device has been properly set or calibrated.’
4.25 The UK Law Commission considered the admissibility of a computer print-out, whether it is hearsay, and whether the print-out itself is relevant:
The question is, on what basis should such evidence be excluded? One view is that it is hearsay, because it is tantamount to a statement made by the person who fed the data into the machine. An alternative view is that the statement by the machine, properly understood, is conditional on the accuracy of the data on which it is based; and that, if those data are not proved to have been accurate, the statement therefore has no probative value at all. The question of hearsay does not arise, because the statement is simply irrelevant.
We believe that the latter view is closer to the truth, and that it is therefore unnecessary to complicate our hearsay rule by extending it to statements made by machines on the basis of human input. On the other hand we do not think it would be safe to assume that everyone will share this view. We must anticipate the argument that, if such statements are inadmissible at present, that is because they are hearsay; that, under our recommendations, they would no longer be hearsay, because our formulation of the rule would apply only to representations made by people; and that they would therefore cease to be inadmissible.1
1 Law Commission, Evidence in Criminal Proceedings: Hearsay and Related Topics (Law Com No 245, 1997) paras 7.48–7.49.
4.26 Notwithstanding the other routes of admissibility in s 114(1), one particularly wide1 route is to admit hearsay evidence ‘in the interests of justice’ under s 114(1)(d),2 subject only to the conditions in s 114(2). However, a number of cases that deal with the inclusion of evidence of telephone calls and text messages sent on mobile telephones, especially in relation to cases involving illegal drugs, have caused some confusion. For instance, in R v Chrysostomou,3 the trial judge admitted four text messages apparently sent to the appellant by someone called ‘John’ who attempted to set up a supply of drugs to provide evidence that the appellant was a dealer in drugs. In giving judgment for the court, Aikens LJ agreed that the text messages were not caught by the statutory code on hearsay on the basis that the messages were adduced, not to prove, as fact, any matters stated in the messages, but ‘as evidence of an underlying state of affairs, which was the basis on which “John” apparently sent the texts to the appellant, namely that the appellant dealt with drugs and so could meet John’s demands.’4 In his commentary, Professor Ormerod agreed with the conclusion reached by Aikens LJ but disagreed with the reasoning, pointing out that the text messages were actually relied upon for the truth of the implied assertion contained in the message that the accused was a dealer in illegal drugs. This, however, did not render the message hearsay because, as Professor Ormerod noted that for a statement to be hearsay, the purpose of making the statement must be to cause another to believe the matter or to act on the matter a stated,5 but, ‘the purpose of the texter [‘John’] was not to cause [the appellant] C to believe/act on his being a dealer.’6 (emphasis added) This must be right.7 Additionally, Professor Hirst observed that if there is nothing to prove an established relationship, or an incriminating response or reaction from the defendant, it may be inadmissible, regardless of whether it is hearsay or not.8
1 See e.g. R v Humphris [2005] EWCA Crim 2030, [11].
2 R v Xhabri [2005] EWCA Crim 3135; however, note the commentary (and references to other relevant articles) by Tom Worthen, ‘The hearsay provisions of the Criminal Justice Act 2003: so far, not so good?’ [2008] Crim LR 431; Roderick Munday, ‘Athwal and all that: previous statements, narrative, and the taxonomy of hearsay’ (2010) 74 Journal of Criminal Law 415; Michael Stockdale and Emma Piasecki, ‘The safety-valve: discretion to admit hearsay evidence in criminal proceedings’ (2012) 76 Journal of Criminal Law 314.
3 [2010] EWCA Crim 1403, [2010] Crim LR 942 (note).
4 [2010] EWCA Crim 1403, [28].
5 Criminal Justice Act 2003, s 114(1) read with s 115(3)(a), (b).
6 [2010] Crim LR 942 (note), 944.
7 See the analysis of this precise point by Professor Ormerod at [2010] Crim LR 938–941, in which he cites R v Singh [2006] EWCA Crim 660, [2006] Crim LR 647 (note); R v Mayers [2008] EWCA Crim 2989; R v Leonard (Mark Alan) [2009] EWCA Crim 1251, [2009] Crim LR 802 (note); R v Fox [2010]
EWCA Crim 1280; R v Bains [2010] EWCA Crim 873, [2010] Crim LR 937 (note); regarding inferences to be drawn from the absence of an entry on a record, see R v Shone (1983) 76 Crim LR 72; M Khan,
‘Hearsay’ (1984) 48 Journal of Criminal Law 25–27.
8 Hirst, ‘Hearsay, confessions and mobile telephones’ 491 fn 25, citing R v William O’Connell [2003]
EWCA Crim 502.
4.27 With the abolition of implied or unintended assertions from the scope of the hearsay rule, not any assertion made with the intention to communicate will be a qualifying hearsay statement. The inadmissible hearsay assertion has to be associated with the object for which it is tendered in evidence in support, failing which it is
admissible as an implied or unintended assertion. This illustrates the fundamental weakness of the rule. By excluding unintended assertions, there arises a possibility that arbitrary limits may arise in that the difference between a hearsay statement and a non-hearsay statement will rest with the question of whether there exists an intention to communicate. The existence of an intention to communicate is of such little value as to render the distinction meaningless. Furthermore, such a distinction exposes the application of the exclusionary rule to the formulation of a clever submission of a lawyer in that the application of the rule might be avoided by classifying the statement as a reflection of the mindset of the maker as opposed to an intention of the maker. In such a case, no real distinguishing factor truly exists.
4.28 Careful consideration needs to be made of the provisions of s 114(2) regarding evidence in digital form when it is obtained from the Internet and where the evidence relating to the material, such as its authorship and ownership of the web site from which it originates, is not known, as in the case of Bucknor v R.1 In this case, the trial judge admitted evidence found by the police on a BEBO page, consisting of 46 separate
‘pages’, on the website www.bebo.com. The material included a number of photographs of Bucknor that he had taken of himself after he had left prison. The photographs had been placed on the page by someone in such a manner as to portray Bucknor as a member of the Organised Criminals (OC) gang. There was a hyperlink to a YouTube page that portrayed the OC gang as violent. The YouTube page, which was recorded on a DVD, was also shown to the jury. The prosecution did not have any evidence of the IP address from which the material was uploaded. The trial judge admitted the evidence as part of the background to the case, but on appeal, the appellant argued that the judge failed to give a sufficient direction regarding the ownership of the web site in question. The members of the Court of Appeal agreed with the submission. The material was clearly hearsay because it seemed likely that the maker as the source of the material was representing as fact or opinion that Bucknor was a member of the OC gang. In considering the issues set out in s 114(2), Hooper LJ, giving the judgment for the Court, said, that the judge ought to have considered how reliable the maker of the statement was (sub-paragraph (e)), whom the judge failed to identify.2 Failing to identify the maker meant that it was not obvious how many levels of hearsay were involved. The judge also failed to consider the reliability of the statement that the appellant was a member of the OC. Hooper LJ concluded:
44. Furthermore it seems to us on the facts of this case that the judge should have considered how reliable the statement was. He should also have asked whether the prosecution could call the maker of the statement and if not why not.
45. In our view the judge did not approach section 114 as he should have done.
In any event, as we have said, his direction to the jury invited them to reach conclusions which no reasonable jury could have reached.3
1 [2010] EWCA Crim 1152.
2 [2010] EWCA Crim 1152, [42]–[43].
3 [2010] EWCA Crim 1152, [44]–[45].