Friday, June 27, 2008

More hearsay ...

In this season of contemplation of hearsay, the Supreme Court of Canada chips in with R v Blackman [2008] SCC 37 (26 June 2008). This concerns the principled approach to admission of hearsay that is not covered by another recognised exception to the exclusionary rule.

Here the hearsay statements were by the now deceased victim to his mother, the witness who would report the statements to the court. They were relevant to an issue: the identity of his killer.

Some points made by the Court:
  • At the stage where the determination of admissibility has to be made, the judge may have to accept an assurance from counsel that other evidence will establish the relevance of the proposed hearsay statements (para 32).
  • The proponent of the hearsay must establish the necessity for it and its reliability on the balance of probabilities (33).
  • It is wrong for the judge to ask whether the hearsay statement is inherently unreliable; that is to reverse the burden of proof. Because hearsay is presumptively inadmissible, the question is whether the proposed statement is inherently reliable (37-38).
  • Absence of evidence of a motive to fabricate the assertion in the statement is not the same as evidence of an absence of motive to fabricate (39).
  • The focus is on the trustworthiness of the hearsay statement (R v Khelawon, blogged here 15 December 2006): what are the dangers in admitting the statement and can these be overcome? (54)
  • It is important not to confuse the determination of admissibility by referring to the wider circumstances of the case (57), but there can be occasions where the presence of corroboration does go to the trustworthiness of the hearsay statement (55).

These points, I suggest, have some relevance to the approach to hearsay in New Zealand: see Evidence Act 2006, ss 16 – 22, especially s 18(1)(a). In other respects the decision in Khelawon is not applicable here, insofar as in some circumstances it passes to the jury the assessment of the reliability of the statement and this could confuse reliability with probative value. The last point is difficult: it means that generally the reliability of the hearsay statement is assessed by reference to the context in which it was made, and not by the context of the overall evidence in the case, except that sometimes corroborative evidence will assist in deciding admissibility.

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