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Hearsay evidence was long rejected by the common law. Hearsay evidence is not the best evidence. The essence of the trial is orality, the witness present, on oath or affirmation, subject to cross-examination, displaying his demeanour. Hearsay evidence could be inaccurate, distorted, or fabricated, remain uncorrected, and mislead the jury or magistrates. The trial could be lengthened by irrelevant or unreliable evidence.
“Primary hearsay” is evidence of the fact that the statement by the other person was made, irrespective of its truth or falsehood.Evidence that a statement was made may be allowed, if relevant, for that limited purpose. The general rule of Common Law is that Hearsay evidence, inadmissible to prove factual content or veracity, but is admissible to prove that remark was made, Witnesses are confined to giving evidence of firsthand, personal perceptions, experience & knowledge.
The most comprehensive is Hearsay rule is;
“An assertion other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact or opinion asserted”in R. v. Sharp
This highlights the fact that not all evidence of what a witness not present in court has said is hearsay: it is essential to determine the purpose for which the evidence is tendered. A question of hearsay only arises where the words spoken are relied on a‘testimonially”, that is, as establishing some fact narrated by the words. Statements not given for the purpose of asserting the truth of the matter asserted fall outside the hearsay rule.
Hearsay evidence is inherently unreliable, misleading, can’t be tested in cross, objectionable and thus inadmissible generally. The Admissibility of Primary Hearsay as Original was seen in McLaren v McLeod 1913, where Leith brothel keeping charge, police witnesses allowed to give evidence of overheard conversations (not for truth of content) despite accused not present at time & persons overheard not called to give evidence.
The rule against hearsay has effectively been abolished in civil cases s2 of the Civil Evidence (Scotland) Act 1988. and is now subject to a number of statutory exceptions in the criminal sphere. Yet the rule and its common law exceptions remain of significance. If evidence falls within the hearsay rule it will be inadmissible unless it is covered by an exception.
The Scottish authorities cited so far have tended to favour the strict view that, to qualify as res gestae, a statement must somehow be part of the event under consideration. Yet the approach advocated in Ratten and Andrews is perhaps presaged by O’Hara v Central SMT Co, In O’Hara a passenger raised a claim for injuries sustained after she had tumbled from the platform of a bus, which had swerved violently across the road. After going to the assistance of the passenger, and helping her into a shop, the driver accosted a bystander who supposedly admitted walking out in front of the bus.
The question was whether the defenders could lead evidence of that statement. The Inner House took the view that it was admissible as a res gestae statement.