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].
true, the difficulty lies in the translation of this rule into the realm of hearsay. A statement does not become hearsay nature merely because it may have probative value. As stated earlier, a statement will be capable of attracting the hearsay rule only if it encapsulates an intention to communicate and is adduced for the same purpose or object as the communication. It is not enough that it merely communicates something, or anything; this does not render it a hearsay statement as a matter of course.
1 Rosemary Pattenden, ‘The rule against hearsay’, in Hodge M Malek (ed.), Phipson on Evidence (18th edn, Sweet & Maxwell 2013) paras 28–32.
4.30 In his commentary to R v Leonard (Mark Alan),1 Professor Ormerod described four elements that establish that a statement is hearsay, as constituted by ss 114 and 115 of the Criminal Justice Act 2003:
1. a statement (i.e. a representation of fact or opinion) made by a person (not made automatically by a machine, if so, see s.129).2
2. made otherwise than in the course of the present proceedings (even testimony in previous proceedings is caught);
3. relied on by the party seeking to adduce it at trial to prove the “matter stated”
and not simply that the statement was made or for some other purpose;
4. where the purpose (or one of the purposes) of the maker must have been to cause someone to believe the ‘matter stated’ (i.e. that content of the statement now relied on at trial) or to act upon that matter stated.3
1 [2009] EWCA Crim 1251, [2009] Crim LR 802 (note).
2 Although not expressly provided for under the Evidence Act 2006, the application of the hearsay rule in New Zealand undoubtedly relies on the same premise – that the statement be the result of conscious human thought.
3 ‘R v Leonard (Mark Alan)’ [2009] Crim LR 802 (note), 804.
4.31 In R v Leonard (Mark Alan),1 the members of the Court of Appeal (Criminal Division) determined that two text messages sent by unknown people to the appellant on two separate mobile telephones were hearsay evidence, and should not have been admitted at trial. The content of the messages are set out as follows:
The first, timed at 10.24 on 2nd May 2008, reads:
‘Cheers for yday! Well sound gear:-S! feel well wankered today!’
The second text message was from a different phone number and was on the second mobile phone. It was timed at 10.51 on 6th May 2008. It read:
‘Mark, that was a proper dog cunt move mate, that joey was a £5 joey and that was my last £10. Thanks. I dont why I think u would not do that 2 me. I dont.’2 1 [2009] EWCA Crim 1251, [2009] Crim LR 802 (note).
2 [2009] EWCA Crim 1251, [3].
4.32 It was assumed that the content described feedback on the quality of the drugs purported to have been supplied. Professor Ormerod considered the decision by the Court of Appeal to be incorrect because the Crown did not rely on the content of the text messages for the truth of whether the quality was good or bad, or the nature of what had been supplied. The issue was whether the appellant had supplied a controlled drug, not the quality of the drugs supplied, which was irrelevant.1 This is undoubtedly correct, and the argument illustrates the absurdity of the largely arbitrary line between hearsay and non-hearsay statements. To conclude that anything inferred from a
statement is not hearsay whereas anything directly stated is to establish a distinction that dances on the head of a pin. The better approach is to treat all types of assertions – express or intended and implied or unintended – as prima facie hearsay and leave their admission to the judge on the basis of an analysis of a list of balancing criteria.
1 See R v MK [2007] EWCA Crim 3150 where a conversation over a telephone by covert recording equipment was not considered to be hearsay, and it was therefore admissible without having to comply with the statutory provisions relating to hearsay.
4.33 This point is illustrated in the next case. In R v Twist,1 the issue was the admissibility of text messages sent over mobile telephones. Whether the text messages were admissible depends on the ‘matter stated’, which will usually be a fact, but may also be an opinion in accordance with s 115(2) of the Criminal Justice Act 2003. In determining the general approach to take whether the hearsay rules apply in this way, Hughes LJ set out the following approach:
i) identify what relevant fact (matter) [the statement] is sought to prove;2 ii) ask whether there is a statement of that matter in the communication. If no, then no question of hearsay arises (whatever other matters may be contained in the communication);
iii) If yes, ask whether it was one of the purposes (not necessarily the only or dominant purpose) of the maker of the communication that the recipient, or any other person, should believe that matter or act upon it as true? If yes, it is hearsay. If no, it is not.’3 (emphasis in the original)
1 [2011] EWCA Crim 1143, [2011] Crim LR 793 (note); note the criticism of Hirst, ‘Hearsay, confessions and mobile telephones’ 491–3.
2 Hughes LJ indicated at [11] that it must be a relevant matter.
3 [2011] EWCA Crim 1143, [17].
4.34 Hughes LJ went on, at [18], to indicate that the ‘… answers to these questions will be case-sensitive. The same communication may sometimes be hearsay and sometimes not, depending on the matter for which it is relied upon and the fact which it is sought to prove.’1 While correct, this line of argument emphasizes the largely arbitrary nature of the distinction. A text message commenting on the quality of drugs bought will not be a hearsay statement and can be adduced in support of a contention that the recipient actually sold drugs. However, a statement to the effect, ‘thanks for selling me those drugs’ will be inadmissible hearsay. And an argument might be made that what was sought to be established was the state of mind of the maker of the message, not whether drugs were actually sold by the recipient of the message. And that may be admissible, depending on the issue to be proved.
1 Note the criticism by Hirst, ‘Hearsay, Confessions and Mobile Telephones’ 491–2.
4.35 Evidence of the actions of others recorded in digital form is certainly hearsay.
In the Australian case of Hansen Beverage Company v Bickfords (Australia) Pty Ltd,1 working television sets in homes were monitored by a meter system that recorded that a person was physically located in the home when he registered his presence by pressing a button when a television was on. This was for the purposes of establishing the size of the audience that might be watching a particular programme. That the evidence was produced on a print-out and was automatically recorded by software was not at issue. Middleton J, it is suggested correctly, identified the evidence as
hearsay because it was a representation of fact that a certain number of people clicked on the buttons. The judge commented:
Undoubtedly, Hansen seeks to prove the estimated audience sizes for a particular program derived by statistical methods from the data, but such data is not automatically recorded by the meters without the human intervention of deliberately pressing the button to show a person or persons are in the room where the television is on. When the people are in the room they intend to, and do, make the representation to assert the existence of this fact, the existence of which needs to be proved to form the basis of the statistical analysis. It seems to me that the necessary reliance by Hansen on the data derived from the sample homes must involve the representation … by a person that the person was in the room on the relevant occasion, namely when the television is operating.2 1 [2008] FCA 406.
2 [2008] FCA 406, [125].