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  • Writer's pictureGavin Jayapal

Hearsay evidence in affidavits


Fran, Cartoonstock (available at https://www.cartoonstock.com/cartoonview.asp?catref=for0505)

The House of Lords in R v Sharp [1988] 1 All ER 65 quoted from Cross on Evidence [6th Edn, 1985] to provide the following definition of hearsay:

an assertion other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact asserted

Closer to home, the Court of Appeal in Hassan Basari v PP [2019] 1 MLJ 390 utilised the definition of “hearsay evidence” from the Oxford Dictionary:

[42]  The Oxford Dictionary of Law gives a rather long definition of the words ‘ hearsay evidence’, as follows:
‘hearsay evidence’ Oral or written statements made by someone other than during his testimony in court but which the court is asked to accept as evidence for the truth of what is stated. In general, hearsay evidence has been inadmissible (the rule against hearsay) but this principle has always been subject to numerous exceptions. In civil proceedings, the Civil Evidence Act 1995 abolished the rule against hearsay and provides that what would formally have been called ‘hearsay evidence’ may be used when a notice of the intention to rely on that evidence is given. It is for the court to decide at trial what weight to put on any particular evidence, whether it is hearsay or not. The admissibility of hearsay evidence in criminal proceedings is now governed by the Criminal Justice Act 2003, which provides that a statement not made in oral evidence in the proceedings may be admissible as evidence of any matter stated if the court is satisfied that it is in the interests of justice for it to be admissible. The Criminal Justice Act 2003 specifically provides for the admissibility of hearsay evidence of unavailable witnesses and preserves the common law rules relating to the admissibility of res gestae and confessions in criminal proceedings. The Act also provides for the admissibility of previous inconsistent statements and other previous statements, including complaints made by a victim as soon as could reasonably be expected after the offence was committed.

Hearsay in affidavits


O. 41, r. 5(2) of the Rules of Court 2012 (ROC 2012) provides for the utilisation of hearsay evidence in affidavits affirmed for interlocutory proceedings:

5. Contents of affidavit (O 41 r 5)
(1) Subject to Order 14, rules 2(2) and 4(2), to paragraph (2) of this rule and to any order made under Order 38, rule 3, an affidavit may contain only such facts as the deponent is able of his own knowledge to prove.
(2) An affidavit sworn for the purpose of being used in interlocutory proceedings may contain statements of information of belief with the sources and grounds hereof 

It is of the imperative that a deponent explains the source and grounds for his belief.


Hearsay in affidavits that seek a final order


Although hearsay evidence is allowed in interlocutory applications, the same does not hold true for summonses and/or motions that seek a final order.


In Lim Yew Sing v Hummel International Sports & Leisure [1996] 3 MLJ 7, the Court of Appeal emphasised that hearsay evidence would only be admissible in affidavits for interlocutory applications:

The only evidence before the court consisted of affidavit evidence. The application was for a final order. Order 41 r 5(2) of the Rules of the High Court 1980 ('the RHC') provides that hearsay evidence may only be admitted in interlocutory proceedings. Although the attention of the court below was not directed to this rule, it did not change the evidentiary burden on the party upon whom the onus of proof rested. This fell upon the respondent, who was therefore obliged to show that there was uncontested material establishing the facts required to support the reliefs claimed.

 

Further, in Mohd Nazir Bin Badar Shair v Timbalan Menteri Dalam Negeri [2000] 2 MLJ 559:


Pursuant to O 41 r 5 of the RHC information which is not within the personal knowledge of a deponent is allowed only when an affidavit is affirmed for an interlocutory proceeding and not when a final order is sought (see Wan Othman bin Datuk Wan Yusuf v Kewangan Utama (M) Bhd [1993] 2 CLJ 572; Kassim bin Sulong & Anor v Guthrie Estates Holdings Ltd & Ors [1993] 3 MLJ 303 ; Zamrud Properties Sdn Bhd v Pang Mooi Gaid & Anor  [1999] 5 MLJ 180 ). Where there is an application for a final order it is fatal to rely on affidavits containing hearsay evidence (seeLim Yew Sing v Hummel International Sports & Leisure A/S  [1996] 3 MLJ 7 ). As an application for habeas corpus is final in nature the affidavit in support must not contain hearsay material. 

  • Kassim bin Sulong v Guthrie Estates [1993] 3 MLJ 303


  • Zamrud Properties v Pang Mooi Gaad [1999] 5 MLJ 180


Committal applications and hearsay in affidavits


Committal applications are an interesting diversion from the neat pattern outlined above; are they interlocutory or final applications?


 This question was clarified by Vincent Ng J (as the late JCA was) in Edmund Ming Kwan v Extra Excel (M) Sdn Bhd [2007] 7 MLJ 276, when His Lordship stated as follows:


[14] This special provision provides for an exception to the rule against hearsay evidence where an affidavit for use in interlocutory proceedings may contain hearsay evidence. However, this application to commit the said respondents for false and misleading statements is not an 'interlocutory proceeding'. Further, the purpose of the committal application is final, wholly punitive and not merely to seek an interlocutory order to maintain the status quo. Hearsay affidavit evidence are of lower quality as evidence and have less probative value than ordinary non-hearsay evidence and should not be admissible in evidence.
[15] Exception to the rule against hearsay applies to interlocutory proceedings where prima facie evidence are often admissible because these matters are often brought up as a matter of urgency. However, where proceedings are final, they are not urgent matters and the court must act on more cogent evidence and apply the ordinary rule of evidence. See also, CRC-Evans Pipeline [2001] ACWSJ-675607 (Alberta Queens Bench, Canada). Notably, both Aqua-Leisure and CRC-Evans Pipeline cases concern contempt proceedings. Clearly in my view, this exception to the rule against hearsay evidence, is strictly confined to affidavit evidence for use in interlocutory proceedings which by their very nature would have to be dealt with urgently and on interim rather than final basis. Thus, I hold that O 41 r 5(2) of the RHC is inapplicable to cases of criminal contempt, and the Utah Court transcripts are inadmissible under this provision.

 Refer also:


  • Aqua-Leisure Industries Inc [2001] HKCU 1189

  • Kulyk v Wigmore (1987) 53 Alta LR (2d) 44 (CA)

  • CRC-Evans Pipeline International v Noreast Services and Pipelines [2001] 108 ACWS (3d) 68


In-line with this, one must draw the irresistible conclusion that hearsay evidence is inadmissible for committal applications. One can very easily see the logic of this; to commit a person to prison without the benefit of first-hand evidence would be a very sorry state of affairs, to say the least.


Conclusion


Practitioners would do well to distinguish between the utilisation of hearsay in affidavits; it’s all well and good for interlocutory applications (provided the safeguards are adhered to) but in applications for committal, motions and/or summonses for final orders, one ought to steer clear of hearsay evidence.


GAVIN JAYAPAL

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