Hearsay and Confrontation in Criminal Trials

By Andrew L.-T. Choo | Go to book overview

4
Implied Assertions

It will have been clear from the preceding chapters that the hearsay rule applies to express factual assertions made orally or in writing. Equally, the rule applies to express factual assertions made by conduct. Such conduct would include sign language, pointing to something or someone, nodding the head in response to a question or suggestion, shaking the head in response to the same, and so on. In Chandrasekera v. R.,1 evidence was adduced that a murder victim, whose throat had been cut and who was therefore unable to speak, had made certain gestures indicating that it was the accused who was responsible for her injuries. Asked whether it was the accused who had cut her throat, she nodded. The Privy Council, drawing an analogy between this and the use of the finger alphabet by a person unable to speak, held that the evidence was hearsay, albeit hearsay which was admissible under an exception substantially similar to the common law dying declarations exception2 and contained in section 32 of the Evidence Ordinance 1895 of Ceylon.3 Also of interest is the case of R. v. Gibson, 4 which concerned a statement made partially in words and partially by gestures. At a trial for malicious wounding, evidence was admitted that, just after the victim had been hit by a stone, a woman, pointing to the door of the accused's house, had said, 'The person who threw the stone went in there'. The accused's conviction was quashed.

Where there has been no express factual assertion (either by words or by conduct), but where it is possible to infer a factual assertion from words or conduct, is evidence of such words or conduct inadmissible under the hearsay rule to prove the relevant fact in the same way that it would be had the assertion been express? Thus, is evidence that a child said 'Hello daddy' over the telephone admissible to prove that the person on the other end of the line was the child's father? Is evidence that X said 'Good morning, Y' admissible to prove that it was morning? Is evidence of the fact that people were walking around under opened umbrellas admissible to prove that it was raining? Is evidence of the fact that a doctor placed a patient in a

____________________
1
[ 1937] AC 220.
2
See ch. 5.
3
See also the US case of US v. Caro, 569 F.2d 411 (5th Cir. 1978), in which a person's 'pointing out' of the location of the source of drugs was held to constitute hearsay.
4
( 1887) 18 QBD 537.

-74-

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Hearsay and Confrontation in Criminal Trials
Table of contents

Table of contents

  • Title Page iii
  • General Editor's Introduction v
  • Preface vii
  • Contents ix
  • Table of Cases xi
  • Table of Statutory Material xxii
  • 1 - The Rule Against Hearsay in Criminal Trials 1
  • 2 - The Rationales for the Rule 11
  • Conclusion 42
  • 3 - The Hearsay Rule in Operation (and Inoperation) 44
  • Conclusion 73
  • 4 - Implied Assertions 74
  • Conclusion 100
  • 5 - Common Law Exceptions to the Hearsay Rule 102
  • Conclusion 141
  • 6 - Statutory Exceptions to the Hearsay Rule 143
  • 7 - Reform Options 163
  • 8 - Conclusion 192
  • Appendix A: United States Federal Rules of Evidence 201
  • Appendix B: Evidence Act 1995 (Commonwealth of Australia) 207
  • Appendix C: Law Commission Consultation Paper--Suggestions for Reform 214
  • Bibliography 217
  • Index 231
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