The Law Reform Commission today released the Hearsay in Criminal Proceedings Consultation Paper, which proposes to reform the ban on admission of hearsay evidence in criminal proceedings.

The court should be given a discretion to admit hearsay evidence where satisfied on a balance of probabilities that the admission of that evidence is "necessary", and it is "reliable", it said.

Hearsay evidence is presently inadmissible unless it falls within a number of common law or statutory exceptions.

New opportunity

The principal justification for the exclusion of hearsay is that, since the evidence is presented to the court second-hand by someone other than the original statement-maker, there is no opportunity for the other side to test the reliability of the evidence by cross-examining the original statement-maker as to what was actually said.

However, the hearsay rule has been criticised for being too strict and inflexible, and sometimes results in the exclusion of evidence that, by the standards of ordinary life, will be regarded as accurate and reliable. Also, the various present exceptions to the rule are complex and uncertain.

The commission said these problems are not unique to Hong Kong. A number of common law jurisdictions have already reviewed the law and recommended or enacted changes. 

The commission's Hearsay Sub-committee chairman Justice Stock said after examining the law and reform proposals in all the major common law jurisdictions, it is concluded that the present hearsay law should be reformed. 

He said the sub-committee has realised it would not be in the interests of either an accused person or of the public to reform the hearsay rules without adopting adequate safeguards, adding the proposal has struck the appropriate balance.

The sub-committee proposes that, while irrelevant and unreliable hearsay evidence should be excluded, if there is a need for relevant and reliable hearsay evidence, it should be admitted under a comprehensible and principled approach.

As a general rule, the present rule against the admission of hearsay evidence should be retained but there should be greater scope to admit hearsay evidence in specific circumstances. 

The sub-committee proposes that hearsay evidence should be admissible:

* if it falls within one of several common law exceptions to be preserved;

* if it falls within an existing statutory exception;

* if the parties agree; or,

* under the court's discretionary power to admit hearsay in prescribed circumstances.

Reliability necessary

Before the court can admit hearsay evidence under its discretionary power, it must be satisfied on a balance of probabilities it is "necessary" to admit the hearsay evidence, and that it is "reliable".

The admission of hearsay will be "necessary" only in certain specified circumstances, such as where the declarant is dead, or cannot be found, or refuses to testify on the ground of self-incrimination. 

In determining whether the evidence is "reliable" for the purposes of admission, the court must have regard to all circumstances relevant to the apparent reliability of the statement, including the nature and contents of the statement, the circumstances in which it was made, and factors that relate to the truthfulness of the declarant.

Hearsay evidence will not be admitted if its prejudicial effect is out of proportion to its probative value.

To give greater protection to an accused person against whom a prima facie case has been made out, where hearsay evidence has been admitted, the trial judge should have the power to direct a verdict of acquittal of the accused at the end of the prosecution's case if the judge considers that, taking account of a number of factors - the nature of the proceedings, the nature of the hearsay evidence, the probative value of the hearsay evidence, the importance of such evidence to the case against the accused and any prejudice to an accused resulting from the admission of the hearsay evidence - it would be unsafe to convict.

The sub-committee also makes recommendations in relation to other specific aspects of hearsay, including the admissibility of banking, business and computer records, and prior statements of witnesses.

The public are invited to comment principally on the specific options and recommendations set out in the consultation paper, and on any other proposals to improve the present law governing the admissibility of hearsay evidence in criminal proceedings.

The consultation will end on February 28. Copies of the consultation paper are available on request from the Secretariat of the Law Reform Commission at 20/F Harcourt House, 39 Gloucester Road, Wan Chai, Hong Kong. It can also be downloaded here.