Res gestae evidence. A phrase which defies meaningful translation but which (as a concept) comprises evidence of all facts so closely bound up with the facts in issue that it would be a form of distortion to exclude them from the case, even if they conflict with the hearsay rule or some other exclusionary rule of evidence. Such facts are said to be “part of the res gestae” or “part of the story” (Professor Cross). They are usually contemporaneous with the facts in issue, or closely connected with them in time and place — but this is not invariably so (as in those cases where the defendant’s motive dates back many years).
Where res gestae evidence consists of things said (or otherwise communicated) rather than things done, there is often a conflict between the res gestae rule and the rule against hearsay. However, the res gestae rule will prevail provided that the statement was made contemporaneous with or spontaneous to: (1) something relevant which was done by that person; (2) something relevant which was seen by that person; (3) something relevant which was thought by that person (eg his present intentions); or (4) something relevant which was felt by that person (eg pain) — provided that the statement confines itself to the physical sensations felt by him and does not speculate upon their cause. Although the Civil Evidence Act 1968 is not entirely clear on this point, it appears that a party to a civil case will be required to give notice to the other party before he can expect to call hearsay evidence of a res gestae statement. (In other words, the Act appears to treat such evidence in the same way as any other hearsay evidence.)
Secondary evidence. Any evidence which suggests that it is a substitute for something better. If primary evidence is readily available, the adduction of secondary evidence may be said to infringe the “best evidence rule”. Thus in Omychund v Barker (1745) 26 ER 15 Lord Hardwicke LC said: “There is but one general rule of evidence — the best that the nature of the case will admit.” But the “best evidence rule” has now been called “one of the ghosts of the law of evidence” (Murphy, A Practical Approach to Evidence, 2nd ed, 1985) — and the modern approach is to view secondary evidence as, sometimes, of less weight than primary evidence, but seldom of less admissibility. However, in the case of documents (especially leases, contracts, deeds, letters, wills, and other documents in the traditional sense of that term), the courts will not accept secondary evidence of their contents unless: (1) a statutory provision permits such evidence (eg the Bankers Books Evidence Act 1879); or (2) evidence is given to show that the original document cannot be produced; or (3) the other party refuses (after notice) to supply the original document which is in his possession; or (4) in civil cases, the other party consents to a copy being used, even though he does not have possession of the original document. If secondary evidence becomes admissible, then (unless statute otherwise provides) any form of secondary evidence will be allowed. A photocopy will not be any more admissible than a witness’ memory of the contents of the document (but it may, of course, be of greater weight).
Prima facie evidence. Evidence which tends to show “on the first face” of things that the proposition in question is (or, at least, may be) true. It is the duty of the party who bears the burden of proof on any particular issue to adduce prima facie evidence of that issue. If no such evidence is adduced, the court or tribunal will not be entitled to accept that proposition as true, unless some presumption operates to that effect (eg the presumption or negligence in cases where the doctrine of res ipsa loquitur applies). In civil litigation, the fact that the parties have to give “discovery” of their documents to each other may assist a plaintiff to establish a prima facie case, since the documentation of the defendant may provide evidence of his negligence or some other breach of duty (as in British Railways Board v Herrington [2] 1 All ER 749). In criminal law, the defendant seldom bears any burden of proof. (In the case of statutory crimes, this depends upon the presumed legislative intention: R v Hunt (1986) Crim LR 172.) In civil law, the defendant bears the burden of proving any counterclaim which he has made and any new allegation of fact which he has raised in his defence (eg an allegation of misrepresentation).
Occasionally, the burden of proof may be the decisive factor in a civil case, as it was in the case of Joseph Constantine SS Line v Imperial Smelting Corporation [1] 2 All ER 165, where a boiler in a ship had exploded from an unknown cause. As this was prima facie evidence of frustration of a contract to charter the ship, the House of Lords held that the burden of proof lay upon the party who was disputing frustration of contract and alleging negligence against the shipowners.
Hearsay evidence. The bete noire of the law of evidence. W M Best described it as “secondhand or derivative evidence” and he distinguished it from secondary evidence because “no matter how unanswerably the absence of the original source is accounted for, the inferior evidence will not be received” (Treatise on Evidence, 1849). The “rule against hearsay” has been authoritatively stated by Professor Cross in the following terms (and has been impliedly adopted by Parliament in the Civil Evidence Act 1968 — although the Act itself does not use the word “hearsay”). Professor Cross’ statement of the rule against hearsay is that “an assertion, other than one made by a person while giving oral evidence in the proceedings, is inadmissible as evidence of any fact asserted”.
Hearsay therefore consists of three elements: (1) an assertion of fact; (2) a communication of that assertion to a court at some later time; and (3) a purpose in making that communication to the court (viz to prove the truth of the assertion). The rationale of the rule is that the absence of the original percipient witness renders inoperable the normal method of challenging the credibility of that witness, and testing the weight of his evidence (viz cross-examination). Thus, even if the evidence relates to a very simple statement, not likely to have been misunderstood by any witness overhearing it, the rule against the admissibility of that statement still applies: Sparks v R [4] 1 All ER 727. Indeed, even if the statement is in writing, and can be produced by a witness who has kept it safe and unaltered, the exclusionary rule still applies.
The honesty and reliability of the witness repeating the statement, or producing the document as part of his evidence, does not assist the court in deciding the honesty and/or reliability of the witness whose evidence the statement truly encapsulates. But if the statement is being repeated to the court merely to prove (if it is relevant to do so) that the statement was made (by word of mouth, or in writing, or in any other way), then the hearsay rule is not infringed. In such a case the making of the statement (whether it be true or false) is a fact like any other fact, and it may be proved by any witness who personally heard it being made, or who can produce it in written form, or who can otherwise describe its essential nature. Thus threats, libels, slanders, misrepresentations, contractual terms, negligent misstatements and the like may all be proved by witnesses who have heard or seen those statements — because the purpose of their evidence is not to prove the statements to be true (sometimes quite the contrary) but merely to prove that they were made.
The common law evolved several exceptions to the hearsay rule: for example, admissions by a party (or his agent) in a civil case, voluntary confessions by a defendant in a criminal case, statements in public documents, res gestae statements, and certain declarations by persons since deceased. But in Myers v DPP [4] 2 All ER 881 the House of Lords indicated that the courts of law would not create any more exceptions to the hearsay rule (however desirable they might be) and indicated that it was the responsibility of Parliament to enact any measures of reform. Thus the status of hearsay evidence in the High Court and the county court is now regulated by the Civil Evidence Acts 1968 and 1972, and by Rules of Court made thereunder. These Acts make it possible (in certain circumstances) to adduce hearsay evidence, after giving notice. (Criminal evidence is now largely regulated by the Police and Criminal Evidence Act 1984.)
Because the concept of an “assertion” lies at the heart of the definition of a hearsay statement, much judicial and academic thought has been given to the question of whether or not a witness can give evidence of words which he has heard, or conduct which he has seen, if those words (or that conduct) was not intended to assert any facts, but necessarily does assert a fact by implication, eg the customer who refuses to drink his beer after tasting it (Manchester Brewery v Coombs [1] 2 Ch 608), or the telephone-caller who is heard to sob “Get me the police, please” (Ratten v R [1971] 3 All ER 801). Clearly such evidence is highly relevant to the question of (1) whether the beer was fit for its purpose or (2) whether the sobbing woman was afterwards murdered or accidently killed. Parke B in Wright v Doe d Tatham (1837) 112 ER 488 took the view that such evidence contravened the hearsay rule, but the balance of modern authority appears to be in favour of admitting such evidence. (The above evidence was admitted in both Manchester Brewery v Coombs and Ratten v R; and, indeed, in the former case the judge went so far as to admit evidence of what the customers actually said to the witness about the quality of the beer.)
When a witness repeats to a court something which he has said on a previous occasion, for the purpose of showing that (because he has said it before) it must therefore be true, this amounts to a breach of the hearsay rule in much the same way as if he were relating what another person had said to him. Such hearsay is usually known as “narration” or “self-serving evidence”. The witness may, however, refer to such statement if: (1) the judge gives leave, or (2) the other party (or his advocate) suggests that the witness has recently fabricated his evidence.
Expert evidence. Evidence given by a person experienced in a particular art or science for the purpose of assisting the court to understand a specialist matter. Experts are the only class of witness who are permitted to give opinion evidence, including evidence as to the ultimate issue which the court has to try, such as the cause of a disease, the value of a building, or the negligence or otherwise of a professional man.
The categories of specialist expertise will never be closed and the only fetter that can properly be put upon their usefulness to an English court is that they should not be allowed to give opinions on matters outside their own field of expertise, or on subjects which are not matters of technical expertise at all, but matters exclusively within the province of the court (eg the truthfulness or otherwise of another witness: R v MacKenney (1981) 76 Cr App R 271). An expert witness is permitted to make use of scientific works, periodicals, reference books, statistical data, and the like. However, (apart from this) he has no immunity from the hearsay rule. Thus, in English Exporters v Eldonwall [3] 1 All ER 726, Megarry J indicated that a valuer could only give evidence-in-chief (or evidence in re-examination) in accordance with the following rules: (a) he could express the opinions he had formed as to values, even though substantial contributions to the formation of those opinions had been made by matters of which he had no first-hand knowledge; (b) he could give evidence as to the details of transactions within his personal knowledge, in order to establish them as matters of fact; and (c) he could express his opinion as to the significance of any transactions which had been, or would be, proved by admissible evidence (whether or not given by him) in relation to the valuation with which he was concerned; but (d) he could not give hearsay evidence stating the details of any transactions not within his personal knowledge in order to establish them as matters of fact.
If, therefore, a valuer wishes to rely upon “comparables”, any details of which (eg the terms of the lease, or the dimensions of the building) are not within his personal knowledge, he would be well advised to seek to agree those details with the other party, so that a list of comparables can be submitted to the court with all the relevant details made admissible by “agreement of the parties” under section 1 of the Civil Evidence Act 1968. In the absence of any such agreement, the submission of a list of comparables amounts to a warranty by counsel of his intention “to tender admissible evidence of all that is shown on the list” (per Megarry J).
