Legislative Council of the Hong Kong Special Administrative Region

LC Paper No. CB(2)225/98-99(01)

Discussion Paper For Bills Committee Meeting on 17 September 1998 Evidence (Amendment) Bill 1998

In the meeting of the Bills Committee on 29 July 1998, the Administration was asked to prepare -

a comparison on the provisions of the Evidence (Amendment) Bill 1998 ("The Bill") with the recommendations of the Law Reform Commission ("The LRC") published in its report on hearsay rule in civil proceedings in July 1996, highlighting major differences;
a comparison on existing law and practice in relation to hearsay evidence in civil proceedings in other common law jurisdictions with the proposed system in the Bill and information on relevant commentaries on the operation of those systems. I set out the relevant information below.

(I) The Bill and the LRC recommendations

2.The object of The Bill is to implement all the recommendations of the LRC contained in its report on the hearsay rule in civil proceedings published in July 1996 ("the Report")¹ . The Bill, if passed, would abolish the rule against admission of hearsay evidence in civil proceedings and introduce a simpler regime for its admission.

3.For easy reference, a table listing out the LRC recommendations with the corresponding provisions of The Bill is set out below, with additional remarks where appropriate.

	LRC Recommendations	Section introduced by The Bill	Remarks
1.	Subject to safeguards, in civil proceedings whether held with or without a jury, evidence should not be excluded on the ground that it is hearsay and that both first-hand hearsay and multiple hearsay should be admissible (para.6.1 of the Report).	s.47(1)of "hearsay" in s.46
2.	The existing statutory provisions making hearsay evidence admissible should not be affected by our reform proposals (para.6.2 of the Report).	s.47(3)
3.	No special provision should be made for the giving of notice of intention to adduce hearsay evidence and the issue as to whether such a notice should be given should be left to the informal arrangement between the parties (para.6.3 of the Report).	Nil	This follows the Scottish approach, i.e. whether prior notice of hearsay is required should be left to be determined by parties informally.
4.	Rules of court should be made to allow a party to call a witness whose evidence has been tendered as hearsay by another party, and to enable that party to cross-examine that person on the statement (para.6.4 of the Report).	s.48	The Bar suggested that the Bill should provide for rules of court be made to allow parties to call additional evidence to attack or support the reliability of the hearsay statement. This has been reflected in s.48(b).
5.	Statutory guidelines should be laid down to assist courts in assessing the weight they should attach to hearsay evidence (para.6.5 of the Report).	s.49	The Bar suggested an additional factor in the guidelines, namely whether a statement is consistent with previously provided statement. This is incorporated in s.49(g).
6.	The requirement that the maker of a statement which is adduced as hearsay should be competent to give direct oral evidence should be retained. The date on which the statement was made should be the date on which the statement maker is required to be competent to give direct oral evidence (para.6.6 of the Report).	s.50(1)
7.	Evidence should continue to be admissible to impugn or support the credibility of the maker of a hearsay statement who is not called as a witness, and evidence tending to show that such a person made previous or later inconsistent statement, should also continue to be admissible (para.6.7 of the Report).	s.50(2)
8.	Previous consistent or inconsistent statements of a person called as a witness should continue to be admissible as evidence of the matters stated (para.6.8 of the Report).	s.51
9.	Adverse admissions, published works dealing with matters of a public nature, and public documents and records, which are now admissible under section 54 of the Evidence Ordinance, should be admissible (para.6.9 of the Report).	s.52(2)
10.	Evidence of reputation or family tradition should be admissible (para.6.10 of the Report).	s.52(3)
11.	Where a statement contained in a document is admissible as evidence in civil proceedings, it should be capable of being proved, either by the production of that document, or by the production of a copy of that document, authenticated in such manner as the court might approve. It should be immaterial how many removes there are between a copy and a original (para.6.11 of the Report).	s.53
12.	Documents, including those stored by computer, which form part of the records of a business or public authority, should be admissible as hearsay evidence (para. 6.12 of the Report).	s.54(1)
13.	Unless the court otherwise directs, a document, including a document stored by computer, should be taken to form part of the records of a business or public authority if it is certified as such by an officer of the business or authority and should be received in evidence without being spoken to in court. No special provisions should be made in respect of the manner of proof of computerised records (para.6.13 of the Report).	s.54(2)&(3)
14.	The definition of "records" should cover records in any form, and should include computer-generated records (para.6.14 of the Report).	s.54(4)
15.	The absence of an entry should be capable of being formally proved by the oral evidence or affidavit of an officer of the business or public authority to which the records belong (para.6.15 of the Report).	s.55	This is the Scottish approach, i.e. the absence of an entry could be proved by oral evidence as well as affidavit of an officer.
16.	An "officer" of a business or public authority should include any person occupying a responsible position in relation to the relevant activities of the business or authority or in relation to its records (para.6.16 of the Report).	s.54(4)
17.	Our reform proposals should apply to all civil proceedings to which the strict rules of evidence apply (para.6.17 of the Report).	s.46 & s.47
18.	There should be power to make rules of court to make such provisions as are necessary for putting the LRC recommendations into effect (para.6.18 of the Report).	s.55A
19.	The exclusion of evidence on grounds other than it is hearsay under any statutory provision or common law rule should not be affected (para.6.19 of the Report).	s.55B
20.	A "statement" should mean any representation of fact or opinion, however made (para.6.20 of the Report).	s.46

(II) Hearsay in Other Common Law Jurisdictions

England and Wales

4. The rule against hearsay evidence in civil proceedings was abolished in England and Wales by the Civil Evidence Act 1995 ("the English Act") on which The Bill is largely modelled. The English Act however provides a simplified hearsay notice provision which is not adopted in The Bill.

5. Under the English Act, parties intending to rely on hearsay evidence should be under a duty to give notice of that fact to other parties wherever it is reasonable and practicable in the circumstances to enable those parties to deal with any matters arising from its being hearsay. This duty is subject to any agreement, or any rules of court, to the contrary. Failure to comply with this duty should not affect the admissibility of the evidence but might attract costs or other sanctions at the court's disposal.

6. The other differences between The Bill and the English Act are that -

The Bill provides that rules of court may be made to allow parties to call additional evidence to attack or support the reliability of the hearsay statement (new s.48(b)). This is included in The Bill at the suggestion of the Bar Association. The English Act does not contain such a provision.;
The Bill provides a further consideration in the guidelines for assessing the weight of hearsay evidence, that is, whether the statement adduced by the party is consistent with any evidence previously adduced by the party (new s.49(g)). This is also included at the suggestion of the Bar Association;
The Bill allows for the absence of an entry in a record of a business or public authority to be proved by oral evidence as well as by affidavit of an officer of the business or the authority. This is the Scottish approach. The English Act only provides for this to be proved by affidavit of the officer only. The Bill adopts the Scottish approach which is considered by the LRC to be more flexible.

7. Similar to The Bill, the English 1995 Act does not provide any residual discretion for the Court to exclude hearsay evidence. The English Law Commission when deliberating on the proposal prior to the enactment of the English Act 1995 was of the view that -

a statutory discretionary power to exclude repetitious and superfluous evidence could not sensibly be limited to evidence of a hearsay nature. Such a power has an effect on evidence whether or not it is of a hearsay nature. It raises policy issues which are not within the terms of reference of the hearsay project;
if repetitious and superfluous evidence is a problem, it is best dealt with by stricter control of trial processes;
the power to exclude repetitious and superfluous evidence already exists. It resides both in the court's ability to exclude insufficiently relevant evidence and in the High Court's inherent jurisdiction to regulate its proceedings. These powers are adequate to deal with the problem;
if it is thought that any further articulation of this power is desirable, taking into account the modern approach to civil litigation generally, it is better dealt with by amendment of the Rules of Court.

Scotland

8. In Scotland, the rule against hearsay in civil proceedings was abolished by the Civil Evidence (Scotland) Act 1988 ("the Scottish Act"). The Scottish Act largely followed the recommendations of the Scottish Law Commission except the recommendations in relation to notice requirement and residual discretion.

9. The UK Government, when implementing the recommendations of the Scottish Law Commission, took the view that to introduce a simpler notice procedure and a residual discretion for the Court to exclude hearsay evidence as recommended by the Commission would lead to the reintroduction of hearsay by another route, would be complicated and would make the reform not worth following through.

10. Despite the Scottish Act does not provide any residual discretion for the court, it leaves untouched any other means whereby evidence might be considered inadmissible. For instance, the court might hold that evidence was irrelevant and could be excluded on that ground, whether or not it was hearsay² .

11. The Scottish Act appears to be the first legislation anywhere in the common law world to have abolished the hearsay rule³ . A comparison of the main features of the Scottish Act with The Bill is set out below.

The Scottish Act	The Bill
Evidence shall not be excluded solely on the ground that it is hearsay. Hearsay of whatever degree is admissible (s.2(1) & s.9).	Evidence shall not be excluded on the ground that it is hearsay. Hearsay includes hearsay of whatever degree (ss.46 & 47).
The Court may still exclude evidence on other grounds, for example, if the evidence is collateral to the facts in issue, or is a statement of opinion given by a person not entitled to express such an opinion (Journal of the Law Society of Scotland August 1993. p.296).	Nothing in the Bill affects any rights of the court to exclude evidence on grounds other than that it is hearsay (s.55B).
Safeguards
There is no requirement of giving notice of intention to adduce hearsay evidence.	No requirement of giving notice of intention to adduce hearsay evidence. Whether notice should be given would be left to the parties to determine informally.
Parties cannot insist that an available witness whose statement is challenged should attend and give direct oral evidence.	Parties are allowed to call a witness whose evidence has been tendered as hearsay by another party, and to enable that party to cross-examine that person on the statement (s.48).
The Court has power to allow a witness to be recalled or an additional witness to be called before the commencement of closing submissions (s.4).	Parties may call additional evidence to attack or support the reliability of the hearsay statement if the person making that statement is called as witness (s.48).
No statutory guideline for the courts to assess the weight of the hearsay evidence is provided.	Statutory guidelines are laid down to assist courts in assessing the weight they should attach to hearsay evidence (s.49).
Statements made by witnesses which are consistent or inconsistent with their evidence in court shall be admissible for the purpose of supporting or challenging the witnesses' credibility. (s.3）	Similar provision in s.51
no similar provision.	Previous inconsistent or consistent statements of a person called as a witness are admissible as evidence of the matters stated (s.51).
no similar provision	Evidence for attacking or supporting the credibility of a person who is not called as a witness or tending to prove that he made previous consistent or inconsistent statement is admissible (s.50(2))
Business records
A document may be taken to form part of the records of a business or undertaking if it is certified as such by a document purporting to be signed by an officer of the business or undertaking to which the records belong and a statement contained therein may be received in evidence without being spoken to by a witness (s.5). Records include records of whatever form (s.9)	Similar provision in s.54.
Absence of a statement in the records of a business or undertaking could be proved by oral evidence or affidavit of an officer of the business or undertaking (s.7)	Similar provision in s.55.

Northern Ireland

12. The rule against hearsay was abolished in Northern Ireland by The Civil Evidence (Northern Ireland) Order 1997, No.2983 (N.I. 21) ("the Order") which implemented the recommendations of the Law Reform Advisory Committee for Northern Ireland contained in its report published in 1996⁴ . The Order appears to be modelled on the 1995 English Act and is therefore very similar to The Bill. The similarities between the Order and The Bill is set out below-

Evidence should not be excluded on the ground that it is hearsay. Hearsay includes hearsay of whatever degree (Article 3 of the Order; s.47 of The Bill);
Parties are allowed to call the maker of the hearsay statement as a witness and to cross-examine that person on the statement (Article 4 of the Order; s.48 of The Bill);
Statutory guidelines are laid down to assist courts in assessing the weight they should attach to hearsay evidence (Article 5 of the Order; s.49 of The Bill);
The maker of a statement which is adduced as hearsay should be competent to give direct oral evidence. The date on which the statement was made should be the date on which the statement maker is required to be competent to give direct oral evidence (Article 6(1) of the Order; s.50(1) of The Bill);
Evidence and previous consistent or inconsistent statements are admissible to impugn or support the credibility of the maker of a hearsay statement who is not called as a witness (Article 6(3) of the Order; s.50(2) of The Bill);
Previous consistent or inconsistent statement of a person called as a witness are admissible as evidence of the matters stated (Article 7 of the Order; s.51 of The Bill);
Documents, including those stored by computer, shall be taken to form part of the records of a business or public authority if it is certified by its officer and shall be received as evidence in civil proceedings without further proof (Article 9 of the Order; s.53 of The Bill);
The power of the Court to exclude evidence on grounds other than that it is hearsay is preserved (Article 12(1) of the Order s.55B(1) of The Bill).

13. Same as the Bill, the Order does not provide for any requirement of giving notice of intention to adduce hearsay evidence or any residual discretion for the court to exclude hearsay evidence. However, the Order provides that the court in assessing the weight of hearsay evidence shall have regard to whether the party adducing the hearsay evidence gave notice to the other party of his intention to adduce it.

14. Another difference between the Bill and the Order is that the Order, same as the English Act, provides that the absence of an entry in a business record could only be proved by the affidavit of the officer while the Bill provides that this can be proved by either the oral evidence or the affidavit of the officer.

Ireland

15. The rule against hearsay has not yet been codified in Ireland. However, many statutory exceptions to the rule had been created. According to the Irish Law Reform Commission⁵ , such exceptions are in general made when other factors give the evidence a "ring" of reliability. The main exceptions to the rule arise where the statement of its very nature is likely to be true, e.g. where a person makes an admission against his own interests, statements in public documents, contemporaneous and spontaneous statements made "in the heat of events" and declarations made in the course of duty. 16. The Irish Law Reform Commission is of the view that the existing Irish law, in so far as it consists of exceptions to the rule which are developed in a piecemeal fashion, can legitimately be criticised as illogical, arbitrary and unduly complex. In addition, the general law as to hearsay, whatever the historical reasons may be, is manifestly far too restrictive. It considers that the approach which most effectively deals with the inadequacies in the present law is to provide, in general, hearsay evidence should be admissible subject to certain conditions and specific safeguards. The following are some of the recommendations ⁶ -

An out-of-court statement should be admissible as evidence of any fact therein if (i) the maker or the person from whom the information derived is unavailable, e.g. dead or outside jurisdiction; (ii) advance notice is given to the other parties, this may be waived in the discretion of the court; and (iii) the statement is proved in court by the best evidence available;
A statement should be defined to include assertive conduct and verbal utterance or statement in document;
The judge should have discretion to exclude an out-of-court statement if it is of insufficient probative value or if its admission would operate unfairly against any party;
Prior inconsistent statements of a witness should be admissible as evidence of the facts stated without any requirement that advance notice should be given to the other parties;
It should be permissible to give evidence of any matter impugning the credibility of the maker of an out-of-court statement proved in any proceedings if the matter could have been put to him in cross-examination for the purpose of impugning his credibility had he testified.

17.However, no legislative reform measures have been introduced to implement the above recommendations.

South Africa

18. The Law of Evidence Amendment Act 1988 (No.45 of 1998) ("the South African Act") provides a new approach to the reform of the hearsay rule by making its admission in contested cases wholly discretionary. Section 3 of the South African Act provides that hearsay evidence shall not be admitted as evidence unless -

each party against whom the evidence is to be adduced agrees to the admission;
the person upon whose credibility the probative value of such evidence depends, himself testifies at such proceedings; or
the court having regard to -
1. the nature of the proceedings;
2. the nature of the evidence;
3. the purpose for which the evidence is tendered;
4. the probative value of the evidence;
5. the reason why the evidence is not given by the person upon whose credibility the probative value of such evidence depends;
6. any prejudice to a party which the admission of such evidence might entail; and
7. any other factor,
is of the opinion that such evidence should be admitted in the interests of justice.

19. The provision has been criticised as providing no guidance in advance of trial of the evidence likely to be admitted, and will thus hamper pre-trial advice, negotiation, settlement and preparation and its aim may be frustrated by an ultra-conservative judicial approach⁷ .

New Zealand

20. The Evidence Amendment Act (No.2) 1980 ("the Amendment Act") provides for the admissibility of hearsay evidence in civil proceedings subject to specific conditions. The Amendment Act provides for the admissibility of -

documentary hearsay evidence (s.3) if
1. the maker of the statement had personal knowledge of the matters dealt with in the statement and is either unavailable to give evidence or undue delay or expense would be caused by obtaining his evidence; or
2. the document is a business record, and the person who supplied the information cannot with reasonable diligence be identified, is unavailable to give evidence, or cannot reasonably be expected to recollect the matters dealt with in the information he supplied.
previous statement of a witness (s.4);
oral hearsay evidence if the maker of the statement had personal knowledge of the matters dealt with in the statements and is unavailable to give evidence (s.7);
hearsay evidence adduced with consent of all the parties to the proceedings (s.15).

21. It also contains an overriding provision in s.18 which provides that the court in a jury trial may exclude otherwise admissible hearsay evidence on the basis that its prejudicial effect would outweigh its probative value, or the court is otherwise satisfied that it is not necessary or expedient in the interests of justice to admit the statement.

22. As in other common law jurisdictions, the legislation was criticised by lawyers, judges and law reformers in New Zealand as complicated and confusing. Changes in technology also made some of the exceptions in the legislation out of date.

23. In 1991, the New Zealand Law Commission published a discussion paper on the hearsay rule in civil and criminal proceedings⁸ . The provisional conclusion of the Commission was that the hearsay rule should be effectively abolished. The Commission commented that "the rule is already honoured more in the breach than in the observance". They were of the view that judges in a civil case, by reason of experience and training, should be able to assess the risks pertaining to hearsay evidence and juries had shown themselves capable of mastering difficult tasks. Taking all the factors into accounts, they proposed that the hearsay rule be effectively abolished subject only to the following two safeguards: -

power to require available makers of the statements be called; and
power to call further witnesses or to recall earlier witnesses.

24. The Commission was of the view that the assessment of hearsay evidence will be a matter of weight and costs sanction will ensure the development of informal notice procedures. Where necessary, the parties can rely on the general power of the court to exclude hearsay evidence on the grounds of unfair prejudice, misleading, confusing effect or time-wasting⁹ .

25. The above proposals have not yet been implemented in New Zealand.

Australia

26. For many years, the Australian States were content to accept the old English system in relation to hearsay with only minor modifications. Before 1995, many States and Territories had legislation which were identical or substantially similar to the English Evidence Act 1938 which provides for the first limited relaxation in relation to documentary hearsay in civil proceedings. Although more radical reform was made in 1968 in England, no jurisdiction in Australia followed suit. It might be the case that judicial reform and a more radical interpretation and expansion of the common law had rendered statutory reform less urgent in Australia . However, the hearsay rule in Australia was criticised as complex and unpredictable since judges differed on the application of the rule.

27. In April 1995, the Evidence Act 1995 (Commonwealth) ("the Australian Act") came into force codifying the hearsay rule and its exceptions. It contains a number of new provisions providing fundamental changes to the law of evidence. The following are some of the main features of the Australian Act -

The exclusionary hearsay rule is retained (s.59).
Specific exceptions to the rule are as follows -
1. evidence of a previous representation relevant for a purpose rather than proof of the fact intended to be asserted (s.60);
2. first-hand hearsay whether the maker of the representation is unavailable (s.63) or available (s.64) provided that reasonable notice has been given to the other side who has no objection or the Court grants leave ;
3. business records (s.69);
4. tags and labels (s.70);
5. telecommunications (s.71);
6. contemporaneous statements about a person's health etc. (s.72);
7. marriage, family history or family relationships (s.73);
8. public or general rights (s.74);
9. use of evidence in interlocutory proceedings (s.75);
10. admissions (s.81);
11. representations about employment or authority to act for another person (s.87(2));
12. admission or use of evidence of the grant of probate, etc. to prove death or the due execution of a testamentary document and admission of a conviction (s.92(3));
13. character of and expert opinion about accused persons (ss.110 &111)
The court may, at the request of a party, order that the person who made the previous representation be called as a witness. It may, on application, direct that evidence in relation to which the request was made is not to be admitted if the order is not complied with (ss.167 &169).
In a jury trial, if there is evidence of a kind that may be unreliable and a party requests a warning, the judge is under a duty to warn the jury that the evidence may be unreliable, and warn them of the need for caution in determining whether to accept the evidence and the weight to be given to it (s.165).
The court has a discretion to exclude evidence if its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party, be misleading or confusing, or cause or result in undue waste of time (s.135).

USA

28. The Federal Rules of Evidence ("The Rules") enacted in 1975 affirms the rule against hearsay which have been modelled on by more than 30 states in their codes of evidence. Under the Rules, hearsay is not admissible except where it falls within one of the specific exceptions prescribed in the Rules. The exceptions are divided into two categories. The first category refers to the situation where availability of the declarant as a witness is immaterial¹¹ . The exceptions in this category include-

statements describing a present sense impression;
excited utterance;
statements of the declarant's then existing mental, emotional or physical condition;
statements for purposes of medical diagnosis or treatment;
records made by the witness when the matter was fresh in his memory;
records of regularly conducted activity;
absence of entry in records of regularly conducted activity;
public records and reports;
records of vital statistics, such as records of births, deaths or marriages;
absence of public record or entry;
records of religious organisations;
marriage, baptismal and similar certificates;
family records;
records of documents affecting an interest in property, if the records are records of a public office;
statements in documents affecting an interest in property;
statements in documents in existence 20 years or more;
market reports and commercial publications generally used and relied upon by the public;
learned treatises or periodicals;
reputation concerning personal or family history;
reputation concerning boundaries or general history;
reputation as to a person's character;
judgement of previous conviction;
judgement as to personal, family or general history, or boundaries.

29. The second category of exceptions refers to the situation where the declarants are unavailable as a witness. The exceptions include¹² -

former testimony;
statements under belief of impending death;
statements against declarant's interest;
statements of personal or family history.

30. Even if hearsay is not admissible under one of the above exceptions, it may be admissible under the residual or "catchall" exceptions in Rules 803(24) and 804(b)(5). They provide for the admissibility of statements of equivalent circumstantial guarantees of trustworthiness where the court determines that -

the statement is offered as evidence of a material fact;
the statement is more probative than any other evidence which the proponent can procure through reasonable efforts;
the purposes of the federal rules of evidence and the interests of justice will best be served by admission of the statement into evidence, provided that notice has been given to the adverse party sufficiently in advance of the trial.

31. There have been criticisms in the USA on the complexity of the Rules and the unpredictability brought by the Court's discretionary power to admit hearsay evidence. Academics and commentators has called for a reform of The Rules.¹³ .

Canada

32.The common law rule against hearsay evidence has not yet been codified in Canada. However, exceptions have been added by statute to those which were recognised at common law and some of the common law exceptions have been modified by statute¹⁴ . Such statutory exceptions provide for the admissibility of documentary records such as business records, banker's records, previous court proceedings records and prints from photographic film, etc.

33. Apart from these statutory exceptions, the courts have held that hearsay evidence which does not fall within any of the recognised exceptions but is logically probative of some facts in issue would be admitted if it meets the test of necessity and reliability¹⁵ .

34. In 1977, the Uniform Law Conference of Canada created the Federal/Provincial Task Force on Uniform Rules of Evidence to make recommendations on the law of evidence. In 1982, the Task Force published its recommendations¹⁶ . The new regime proposed by the Task Force is similar to that adopted in the USA. The Task Force recommended that¹⁷ -

the rules governing the reception of hearsay evidence be put into legislation;
the general rule excluding hearsay evidence be retained;
the general rule be qualified by particular admissible exceptions;
hearsay evidence be admissible if the declarant is not available;
it is not necessary to legislate directions to the court for the determination of the fact that the declarant's testimony is unavailable;
the court continue to have the power to create new principled exceptions to the rule against Hearsay where the circumstances sufficiently guarantee the trustworthiness of the statement;
the court should not have a special discretion to exclude otherwise admissible hearsay by reason of its prejudicial effect or for the purpose of expediting the trial process;
otherwise inadmissible hearsay evidence be admissible where the parties to the proceedings so agree;
in civil proceedings any requirement to give notice of the intention to introduce hearsay evidence be left to the rules of court in each jurisdiction.

35. In 1982, a bill was introduced into Parliament to implement the recommendations but the bill was withdrawn by the Government after the second reading. It was reported that no similar legislation has been introduced at the federal and provincial level since then¹⁸ .

Conclusion
Notice procedures

36. Those responding to the LRC consultation paper in 1992 were of the view that the notice requirements were complex and wasteful of resource and time. Parties to proceedings have either adopted an informal approach or omitted to serve hearsay notices altogether. As a result, the first day of trial is often taken up by application for the court's leave under its residual discretion to admit the hearsay evidence.

37. A member of the Judiciary commenting on the LRC Consultation Paper said that "The frequency of applications to serve hearsay notices out of time or to dispense with such notices make a mockery of the present rules. I do not believe the present rules achieve anything, nor is there any further justification for their retention"¹⁹ . In 1992, the Bar Association pointed out in its reply to the LRC consultation that the main complaints are directed not so much at the difficulty of compliance with the notice procedure but rather at the unnecessary inconvenience caused by the procedure. The view of the Law Society was that the existing rules gave rise to additional and unnecessary expense in the conduct of litigation. They were of the opinion that abolition would merely reflect the reality of the present situation and would dispense with the need for what are generally regarded as artificial procedural requirements.

38. The LRC was of the view that the requirement for exchange of witness statements and a strict enforcement of the requirement for full discovery by exchange of lists of documents effectively put all parties on notice of any documentary and oral hearsay evidence. The objective of eliminating any element of surprise at the trial as to the substance of the hearsay evidence intended to be adduced can thus be achieved without any formal notice procedure. Besides, where the court is of the opinion that informal notice should have been given but was not, the court has the power to take this into account in considering the exercise of its power with respect to the control of proceedings and costs. We agree with the LRC that whether notice of intention to adduce hearsay evidence should be served should be left to informal arrangement between the parties.

Residual discretion 39. The LRC share the views of the English Law Commission. They take the view that our courts have not experienced any difficulty in dealing with repetitious and superfluous evidence, whether hearsay or not. They do not consider that the risk of the courts being swamped by superfluous evidence would be any greater in relation to hearsay than it is in relation to other types of evidence. In addition, the LRC takes the view that the adduction of evidence of low probative value is futile because such evidence will not be given any significant weight and costs sanction will act as an effective deterrent to the adduction of such evidence²⁰ .

Common law jurisdictions

40. The common law rule of hearsay has been found to be unsatisfactory in many jurisdictions. Reforms on the rule have, as a result, either been introduced or proposed in some of those jurisdictions. Although the rule is still retained in some jurisdictions, numerous exceptions have been developed which rendered the rule confusing and complex.

41. The more radical reforms took place in Scotland (in 1988), England and Wales (in 1995) and Northern Ireland (in 1997) where the hearsay rule was abolished completely. In New Zealand, hearsay evidence is admissible subject to a number of specific conditions. The complexity of the system leads to the New Zealand Law Commission proposing the abolition of the rule effectively. Apart from New Zealand, the Irish Law Reform Commission have also recommended the abolition of the rule in Ireland. It seems that abolition of the rule would become a new trend of law reform in common law jurisdictions.

Department of Justice
Legal Policy Division
September 1998

File Ref: LP/5019/5

1 "Report on Hearsay Rule in Civil Proceedings (Topic 3)" July 1996

2 Hansard (House of Commons) 16 May 1988, col 743-4.

3 Western Australia Law Review, 1992 Vol.22, p.47.

4 Law Reform Advisory Committee for Northern Ireland "Hearsay Evidence in Civil Proceedings" (LRAC No.3, 1996).

5 Irish Law Reform Commission, "The Rule Against Hearsay in Civil Cases" LRC 25-1988, p.4

6 Ibid, p.20

7 Western Australian Law Review 1992 Vol.22, p.45- 46.

8 New Zealand Law Commission, Preliminary Paper No.15 "Evidence Law: Hearsay"-A discussion paper 1991.

9 Ibid, paragraph 58.

10 Western Australian Law Review 1992 Vol. 22 p.48.

11 Rule 803 of The Rules.

12 Rule 804(b) of The Rules.

13 "A Subject Matter Approach to Hearsay Reform", 86 Michigan Law Review 51-122 1987; "Abolishing the Hearsay Rule" 75 California Law Review, 495-519 Ja 1987; "The Residual Exceptions to the Federal Hearsay Rule: The Futile and Misguided Attempt to Restrain Judicial Discretion" Georgetown Law Journal 1992 Vol.80, p.873-908.

14 Note 18, p.125.

15 Ares v Venner [1970] SCR 608; 14 DLR (3d) 4

16 "Report of the Federal/Provincial Task Force on Uniform Rules of Evidence" 1982.

17 Ibid, p.146.

18 Note 1, p.122.

19 Ibid, para.2.33.

20 Ibid, paras. 5.104, 5.105 & 5.106.