Report No. 69

II. Various Definitions of Hearsay

26.11. Definitions of hearsay.-

So much as regards theoretical aspects of the rule. We shall now consider the rule in detail. We have stated above that hearsay is variously defined. According to Morgan:1

"an utterance offered for a purpose which required the Trier (of fact) to treat the utterer as a witness is hearsay unless the utterer was, when making it, subject to all the conditions prescribed for witnesses."

1. Morgan Hearsay Dangers, (1948) 62 Harvard Law Review.

26.12. A shorter definition is that: "The rule excluding hearsay forbids the use of extra judicial statements1 for the purpose of proving the truth of their content."2

1. This could be changed to "assertions".

2. Strahorn A Reconsideration of the Hearsay Rule and Admissions, (1957) 85 U. Pa. L. Rev. 4 in Selected Writings on Evidence and Trial (W. Fryer ed., 1957), p. 756.

26.13. Another adequate working definition of hearsay would be: "Extra-judicial assertions offered for the purpose of proving the truth of their contents." "Extra judicial" is to be understood as including any legal proceeding except the one in which the assertion is offered.

26.14. Phipson1 has stated the rule thus: "Oral or written statements made by persons who are not parties and who are not called as witnesses are inadmissible to prove the matters stated." This formulation overlooks two matters at the periphery of hearsay, about which more will be said shortly. First, it exclude conduct from the ambit of the rule, and, secondly, it allows a witness to reiterate his own previous statements, a concern of the rule against narrative.

1. Phipson Evidence, (1970), para. 632.

26.15. It would be more accurate to say that hearsay is an utterance offered for a purpose which requires the court to treat the utterer as a witness when the utterer was not subject to the conditions prescribed for witnesses. The statement challenged as hearsay must be tendered for proving the truth of the contents.

26.16. Statement tendered to prove truth of its contents.-

When A testifies that he saw C strike B, A's credibility is relied on in proof of the truth of such fact if, however, A testifies that D told him that C struck B, A's credibility give support only to the fact that D made that statements. If A is giving evidence as what D said, then A is in the same position as if he were reporting any other fact within his knowledge. But, as to the truth of the contents of D's statement, A'S oath and his liability to cross-examination are not in any way a guarantee of D's credibility and so, the latter, not being under oath nor subjected to cross-examination, his statements are rejected as being untrustworthy1.

This is the reason why the term "hearsay" is properly applicable only, where a third party's out-of-court statements are offered to prove the truth of their contents. Its use in a wider sense, so as to include any statement made out of court by a person who is not called as a witness, is, accordingly, improper. It shows a lack of understanding of the basic reason for the exclusion of hearsay.2

1. Phipson Evidence, (1970), para. 632.

2. Baker Hearsay Rule, (1950), p. 2.

26.17. The case of Subramaniam1 illustrates this. This was an appeal, by special leave, by Subramaniam, a rubber tapper, from an order of the Supreme Court of the Federation of Malaya (Court of Appeal at Kuala Lumpur), dated 12th "September, 1955, dismissing his appeal against a judgment and order of the High Court of Johore Bahru, whereby he was found guilty on a charge of being in Possession of twenty rounds of ammunition without lawful authority, contrary to Regulation 4(1)(b) of the Emergency Regulations, 1951, and sentenced to death. It was common ground that on 29th April, 1955, at a place in the Rangam District in the State of Johore, the appellant was found in a wounded condition by certain members of the security forces; that when he was searched, there was found around his waist a leather belt with three pouches containing twenty live rounds of ammunition.

1. Subramamiam v. Public Prosecutor, (1956) 100 Solicitor's Journal 566: 1 ILR 965 (PC).

26.18. The defence put forward was that he had been captured by terrorists, that all material times he was acting under duress, and that at the time of his capture by the security forces he had formed the intention to surrender, with which intention he had come to the place where he was found. He gave evidence describing his capture and sought to give evidence of what the terrorists said to him, but the trial judge ruled that evidence of the conversation with the terrorists was not admissible unless they (the terrorists) were called. The judge said that he could find no evidence of duress, and in the result the appellant was convicted.

26.19. Mr. L.M.D. De Shiva, giving the judgement of the Privy Council, said that the trial judge was in error in ruling out peremptorily the evidence of conversation between the terrorists and the appellant. Evidence of a statement made to a witness by a person who was not himself called as a witness might or might not be hearsay. It was hearsay and inadmissible when the object of the evidence was to establish the truth of what was contained in the statement. It was not hearsay and was admissible when it was proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.

26.20. Statements could have been made to the appellant by the terrorists which, whether true or not, might (if they had been believed by the appellant) reasonably have induced in him an apprehension of instant death if he failed to conform to their wishes within section 94 of the Penal Code of the Federated Malaya States. Thus, a complete, or substantially complete, version according to the appellant, of what was said to him by the terrorists and by him to them had been shut out, and their lordships had to consider whether, in the circumstances of this case that exclusion of admissible evidence afforded sufficient reason for allowing the appeal. We would also like to point out what was in issue was the factum of the oral threat. The appeal was allowed.

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