The common law exceptions to Hearsay (ESSEKU AND CO).

Hearsay in its non-legal sense means a gossip or rumour and gives the
impression that what is being said is not first hand information and
detached from the original. This explains the inadmissibility of hearsay
in the law of evidence which demand the originality of testimony so that
its reliability can be properly tested. The hearsay rule considers as
inadmissible statements made out of court which are tendered for the
purpose of establishing the truth of what is contained in them. These
statements are made by way of gestures or signs orally or in writing.

Though hearsay is generally inadmissible there are certain aspects of it

which are admissible because they fall within one of the exceptions to
the hearsay rule; namely the common law exceptions. These are statements
forming part of the res gestae, statements of deceased persons.,
declaration as to public and general rights, declarations as to family
pedigree, informal admissions, declarations in furtherance of a common
purpose, statements in a public documents and works of reference.

Statements forming part of the res gestae.

spontaneous exclamation – here the victim or a witness says something
instinctively which is seen as intrinsic to the event in question . the
requirements here are contemporaneity with the event and absence of
concoction. If the interval of time was long enough for the person to
think about what he has seen or about what has happened, then there is
the risk that the statement has lost its spontaneity and could be
premeditated. In R v Beddingfield 1879 14 cox cc 341 these requirements
were taken to extremes. Beddingfield was charged with the murder of a
woman. The deceased her throat cut, came out of a room where she had been
with the accused and immediately exclaimed, “Oh dear Aunt, see what Harry
has done to me.” This statement was held to be inadmissible because it
was something stated by her after it was all over and not while it was
being done. This case is clearly distinguished from Ratton v R 1972 AC
2378 where the evidence given by a telephonist was admitted as part of
the res gestae because not only was there a close association in place
and time between the statement and the shooting, but also the way in
which the statement came to be made in a call to the police, the tone of
voice showed that the statement was being forced from the wife by an
overwhelming pressure of contemporary events. Another illustration of
statements admissible as part of the res gestae are statements of present
intention. This principle is clearly exemplified by R v Buckley 1873 13
cox cc 293. a police constable was murdered. On the crucial issue of
whether it was the accused who had committed the offence, the judge
admitted a statement made by the deceased to a senior officer on the
morning of the day in question to the effect that he intended to watch
the movements of the accused that night. The authorities conflict on this
based on R v Wainwright 1875 13 cox cc 171 where it was held that
evidence of a statement of the victim of a murder on leaving her lodgings
that she was going to the accused premises was inadmissible because it
was only a statement of intention which might or night not have been
carried out.
statements accompanying an act. – a statement is also admissible as part
of the res gestae if it contemporaneously accompanies and explains the
act of the person making it. that is the statement must be made by the
person performing the act and not someone witnessing it. in the case of
Howe v Malkin 1878 40 LT 196 the evidence was inadmissible because the
statement was made by one person and the accompanying statement was made
by another person. another common law exception to the hearsay rule is
categorising under statements of deceased persons which are broken down
into dying declarations in homicide cases, declarations against interest
and statement made in the course of duty.

Dying declaration
In such situations persons making them must realise that they are on the
brink of death, or more accurately the declaration must be made in the
settled hopeless expectation of death. In a case where what the victim
said could not qualify as a dying declaration because he gave no
indication that he thought he was dying and indeed he survived for
another two months with the help of a life support machine. The law
assumes that someone who is almost dying would be motivated only to tell
the truth, not wishing to die with a lie on his lips. In R v Penny the
test was whether all hope of life had been abandoned so that the person
making the statement thinks that death must follow. The deceased
statement “oh God I shall go but keep this a secret. Let the worst come
to the worst. That woman opened my womb with something like a crochet
hook on good Friday” was held to be admissible.
The next type of statement is the declaration against interest. If a
deceased makes a statement which he knows is against his pecuniary or
proprietary interest at the time the statement was made it is considered
admissible because it is expected that a person would not make such a
statement unless it were true. It would be when he makes it and must have
personal knowledge of the facts stated.
Hyham v Ridgeway 1808 10 east 109 concerned the admissibility of a
written statement of a deceased make midwife to the effect that he had
delivered a woman of a child on a certain date, that he had made a charge
for his attendance and that this had been paid. The acknowledgement of
payment was held to be against his interest because it repelled a claim
which the midwife would otherwise have had for work performed and this
emphasised the fact that the midwife was not owed any money. Provided
that part of the statement is against the interests of its maker, the
connected or related statements are admissible even if they are in his
interest.

In taylor v witham 1876 3 ch d 605 the statement to the effect that a

testator had lent money to one witham was held admissible to prove the
ban because they were connected with and preceded by another entry
against the interests of the testator that witham had paid him 3 months
interest. Because the 3 months interest was against him, he would not
have entered if it were not true.
If a deceased has made a statement in the performance of his duty, such a
statement will be admissible provided that
the statement is made in circumstances of near contemporaneity with the
act recorded
the statement is made personally by the person performing the duty and
records only his acts
there is a duty owed to another both to do the very thing to which the
entry relates and then to record and
no motive exists on the part of the maker if the statement to
misrepresent the facts. In the henry cox on 1878 3 pd 156 an action
concerning a collision at sea one of the reasons why entries made in a
ships logbook by the mate was held to be inadmissible was that they
concerned not only the manoeuvres and navigation of his own ship but also
those of the other ship. And also the entries were made nearly 2 days
after the collision and were in the interest of the party who made them,
the mate. Declarations in the course of duty are evidence only of those
facts which the declarant was under a duty to record. Thus in chambers v
Bernasconi 1834 1 cr M e R 347 it was held that certificate prepared by
a sheriff officer stating the fact, date and place of arrest was
inadmissible after his death, to prove the place of arrest because this
was a matter which he was under no duty to record.

Declarations as to family pedigree

An issue of family pedigree involves such matters as legitimacy,
succession, age, or celibacy. The case must be one in which pedigree is
directly in issue. In haines v Guthrie 1884 13 qbd 818 the plaintiff sued
for goods sold and the defendant pleaded infancy. Since pedigree was not
directly in issue the statement in question relating to the defendants
age was held to have been improperly admitted.
The statement must be made by a person who is since deceased and must be
made before any dispute has arisen about the matter in question and the
person making it must be related either by blood or by marriage to the
person whose pedigree is in issue. The statement can be oral or written
ranging from a description in a will or settlement to an inscription on a
tombstone or by conduct.

An informal admission is an out of court statement which is adverse to

the case of the person making it. the reason that admissions are
admissible by way of exception to the hearsay rule is that it is though
that people rarely say things adverse to themselves unless those things
are true.
At common law the statement constituting these kinds of admissions can be
made orally, in writing, conduct and silence.
In Bessalav Stem 1877 2 CPD 265 the defendant did not respond when the
plaintiff rebuked him for failing to keep his promise to marry her. His
silence was held to be an admission because this failure to respond could
be taken as some evidence of the truth of the statements.
Similarly written admissions such as statements contained in a letter or
a diary or other private memorandum are also admissible. A common law
example of admission by conduct is Moriaty v London chatham and dover rly
co 1870 lr 5 qb 314 where evidence of the plaintiffs conduct in
subpoenaing witnesses was admitted as an admission by him of the weakness
and falsity of his claim.
Declarations in furtherance of a common purpose is another type of common
law exception to the hearsay rule. For example where two or more persons
conspire to commit an offence the acts and declarations of conspirator. A
are admissible in evidence not only against a but also against
conspirators b as well as against any other conspirators. Thus the
statements or acts should be admitted conditionally upon some other
evidence of common design on behalf of the other. In tripodi v R it was
stated that the combination or preconcert to commit the crime is
considered as implying an authority to each to act or speak in
furtherance of the common purpose on behalf of the others. However if it
transpires that there is no other evidence of common design then the
statements should be excluded.
It must however be stated that if there are 2 conspiracies what does in
pursuance of the first is not admissible against B in respect of his
involvement in the second. Additionally the acts or declarations must be
in furtherance of the conspiracy.
In r v Devonport and Pirano 1996 document showing the proposed division
of the proceeds of conspiracy to defraud was held to be admissible
because the prosecution were allowed to rely on a document, dictated by
one accused which showed the proposed division of the proceeds of the
conspiracy among all five accused,

The final common law exception to the hearsay rule is that which permits
statements in public documents to be admitted as evidence of the truth of
their contents if
It concerns a public matters
It was made by a public officer acting under a duty to inquire and record
the results of such inquiry and
It was intended to be retained for public reference or inspection
A typical example of a public document is a birth, marriage or death
register
In sturla v freccia 1880 5 app cas 623 it was said that public in this
context should not be taken to mean the whole world: the matter in
question may concern either the public at large or a section of the
public sharing a common interest.