THE CONCEPT HEARSAY WITH PARTICULAR EMPHASIS ON IMPLIED HEARSAY ...

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THE CONCEPT OF HEARSAY
WITH PARTICULAR EMPHASIS ON
IMPLIED HEARSAY ASSERTIONS
Andrew Peter Paizes
A Thesis Submitted to the Faculty of Law
University of the Witwatersrand, Johannesburg
for the Degree of Doctor of Philosophy
Johannesburg 1983
TO MOM, DAD, ALEX AND ANITA
•
DECLARATION
I declare that this thesis is my own, unaided work.
It is being submitted for the degree of Doctor of
Philosophy in the University of the Witwatersrand,
Johannesburg. It has not been submitted before
for any degree or examination in any other Univer
sity.
/S ber
~ day of 1:>ec 4l-~ 1983.
-----------------------
---L-~~~----
Page i.
PREFACE
Some years ago, while I was still an undergraduate
student, I had occasion to assist my father, who was
then involved in legal practice, on a matter that raised
a difficult point of law. It concerned the scope of the
hearsay rule and the applicability of one of the common
law exceptions to the rule. Having little knowledge of
hearsay law, I consulted the major texts on the subject,
but what I found there only increased my sense of bewild
erment. The hearsay rule, I remember thinking, was
certainly an odd part of our law. At any rate, with my
legal studies imminent, enlightenment was surely at hand.
A few years later, and a course in the Law of Evidence richer,
t was ruefully to recognize that the hearsay concept
remained, for me, an enigma. It seemed, moreover, that the
full complexities of the hearsay rule were not taken very
seriously in practice, an attitude which I found rather
puzzling in the light of the long tenure the rule has
enjoyed in the Anglo-American evidentiary system. Something,
it was clear, was seriously wrong with the common law, and
I resolved to find out what it was. This thesis is the
result of that resolution.
I wish to express my heartfelt appreciation to my super
visor, Professor David Zeffertt, for his invaluable
Page ii.
advice and insight, to Mrs Stella Beyleveld for her
willing and excellent work in typing the thesis, and
to the members of my family for their help in proof-reading
the drafts and for their moral support. I am indebted,
also , to the Australian Law Reform Commission for their
swift and helpful co-operation in making available to me
copies of their Research Papers on the reform of the hearsay
rule in Australia.
Johannesburg Andrew Paizes
December 1983
Page iii.
THE CONCEPT OF HEARSAY WITH PARTICULAR
EMPHASIS ON IMPLIED HEARSAY ASSERTIONS
PAIZES, Andrew Peter, Ph.D University
of the Witwatersrand, 1983
This thesis explores the reasons for the frustration
and confusion elicited by the hearsay rule and seeks
to remedy the problem by proposing possible ways of
improving the present state of the law. The rule is
critically examined from three separate angles, its
historical origin, its rationale and its scope, and
the following submissions are made:
(i) The hearsay rule is largely a product of the
adversary system of trial procedure.
(ii) Hearsay is generally excluded because its ad
mission would violate the values served by that
system, in that the adversary would be denied
access to those standard procedural devices to
which a witness is normally subjected.
(iii) The exclusion of hearsay evidence is thus only
justifiable if the prejudice caused to the
adversary and the prestige of the fact-finding
process exceeds its probative value.
(iv) The inflexible exclusionary rule of the common law,
qualified as it is by a host of equally inflexible
exceptions, does not square with this conception
of hearsay and is thus unsatisfactory.
Page iv.
(v) The courts, appreciating the untenable state
of the common law, have sought to mitigate its
effect by resorting to a narrow definition of
hearsay which, in effect, excludes from the
scope of the rule evidence of so-called "implied
assertions"; such evidence, however, shares the
same dangers or testimonial infirmities as that
evidence which is excluded, thus causing a dis
tortion of the hearsay concept.
The artificial definition of hearsay and the rigid ex
clusionary rule at common law emerge therefore as the main
reasons for the present impasse. The thesis accordingly
concludes with draft proposals for the reform of the law
in South Africa in which:
(a) hearsay is defined as evidence raising particular
dangers, thus bringing within its purview implied
assertions; and
(b) the admissibility of hearsay evidence is governed
by a judicial discretion which, although not
fettered, is guided by criteria which seek to en
trench the values served by the adversary trial.
Page v.
TABLE OF CONTENTS
pREFACE i
iii
ABSTRACT
v
TABLE OF CONTENTS
xi
LIST OF CASES
xix
LIST OF ABBREVIATIONS
Chapter I INTRODUCTION 1
Notes to Chapter I 6
Chapter II ORIGIN OF THE HEARSAY RULE 7
Notes to Chapter II 14
Chaeter III THE RATIONALE OF THE HEARSAY RULE 15
15
Section A •••.•.. WHY IS HEARSAY EXCLUDED?
(A) The inconvenienae .. caused to efficient trial procedure 18
(B) Hearsay contains intrinsic dangers or weaknesses
that are not normally present in original testimony 20
(C) Dangers not intrinsic to hearsay that are rendered
peculiarly difficult to assess through the absence
of the standard procedural safeguards.
28
Page vi.
(D) The absence of those procedural devices that
characterize the Adversary System 37
Conclusion to Section A 58
section B IS THE EXCLUSION OF HEARSAY JUSTIFIABLE? 60
(I) The Exclusion of All Hearsay 60
(II) The Exclusion of Any Hearsay 61
(1) How often will the hearsay cost alone justify
the exclusion of hearsay evidence? 70
(2) How often will the exclusion of hearsay evidence
be cost-efficient and thus justifiable? 74
Conclusion to Section B 80
Notes to Chapter III 83
Chapter IV THE SCOPE OF THE HEARSAY RULE: THE
MEANING OF HEARSAY 90
Generally 90
(A) Evidence of the Declarant's State of Mind 117
I Evidence of Express Assertions of State of Mind 117
II Circumstantial Evidence of A Declarant's State
of Mind 118
III The Public's State of Mind - Public Survey Polls 1 36
(a) The United Kingdom 137
(b) Canada 138
(c) The United States 144
(d) New Zealand 148
(e) South Africa 149
Conclusion on Evidence of State of Mind 152
(I) Utterances which Explain Certain Types of Conduct 155
(a) Verbal Acts 156
(b) Verbal Parts of Acts 157
Illegal Gambling Cases 165
1. Australia 165
2. New Zealand 171
3. The United States 1,77
4. Canada 181
5. South Africa 182
Page vii.
Academic Commentary on these cases 183
Notes to Chapter IV 191
Chapter V STATEMENT AND ORIGIN OF THE PROBLEM OF
IMPLIED ASSERTIONS: WRIGHT v DOE d TATHAM 198
The Origin of the Problem : Wright v Doe d Tatham 200
The Arguments of Counsel 204
1. Pollock 204
2. Cresswell 206
3. Starkie 207
The Opinions of the Judges 208
1. Coltman J 208
2. Bosanquet J 209
3. Parke B 210
4. Tindal c J 212
5. Gurney B 212
6. Park J 213
Academic Commentary on Wright v Tatham 214
Notes to Chapter V 227
Chapter VI SUBSEQUENT CASES ON IMPLIED ASSERTIONS 229
(A) The Illegal Gambling Cases 229
(B) The Flight Cases 229
(C) The Medical Treatment Cases 235
(D) The Treatment as Evidence of Relationship Cases 240
(E) The Silence Cases 253
(F) The Identity Cases 267
Conclusion 270
Notes to Chapter IV 271