The dissenters relied on a number of Commonwealth cases, which held that evidence of telephone calls to particular premises by persons seeking to place bets is admissible evidence that the premises are being used for illegal gambling.
On the issue of hearsay, the majority held that the use of evidence of words spoken by a person not called as a witness which are said to assert a relevant fact by necessary implication are inadmissible as hearsay. Essentially, the majority held that implied assertions are inadmissible as hearsay, applying the cases of Wright v Doe D Tatham, Myers v DPP and R v Blastland.
By comparison, according to Lord Griffith the requests for drugs made by the callers were not hearsay as the callers were neither describing Kearley as a drug dealer not stating their opinion that he was a drug dealer. Further, His Lordship refers to the case of Ratten v R (a case distinguished by the majority) where words of a telephone call were not held to be hearsay. His Lordship considered that the case of R v Blastland did not shed any light on the present case. Finally, he considered that the case of R v Harry was wrongly decided, where the Court of Appeal held that the particular evidence in that case was inadmissible because it was used testimonially.
Lord Browne-Wilkinson considered that there was no contravention of the hearsay rule if a witness gives evidence of what the callers said, provided the evidence was not being used testimonially, but only to explain what the callers purpose in making the calls. Further, he approved Ratten v R and distinguishes Wright v Doe d Tatham. Wright was distinguished on the basis that the letters in that case were being used testimonially to prove the belief of the witness. His Lordship asserts that the calls in this case were being tendered to prove a relevant fact and not the belief of the callers, and therefore the hearsay rule did not apply.
This piece will now consider the issue of relevance and implied assertions as hearsay and whether the dissenters were right and the evidence was correctly admitted by the trial judge.
Evidence is relevant if it makes the matter which requires proof more or less probable. Essentially this is the question posed by Hirst, whether any of the probative evidence in Kearley could properly be said to have made it more probable that the appellant was guilty of trading as a drug dealer ? It is submitted that ‘more probable’ means that the evidence shows that it is more likely that the defendant committed the offence charged. In this case, it is arguable that the disputed evidence went quite a long way to establish the guilt of Kearley.
According Dennis “17 people could not be wrong”. Whilst it is easy to envisage one or two people being mistaken, the higher the number of events the less likely it is that they will be mistaken.
Pattenden makes the point that “if something is relevant according to our everyday experience it is also legally relevant”. Everyday experience in this case suggests that the evidence was indicative that the defendant was a drug dealer. One associates a drug dealer with customers and frequent callers, a point made by Hirst. The nature of the word ‘dealer’ imports an element of potential customers and someone who can sell the product to potential customers.
It is submitted, that the layman would accord the disputed evidence a high probative value leading towards the conclusion that the defendant was a drug dealer. Further, a point made by Spencer is that people are more likely to try and buy a product from someone who makes a habit of selling it, than someone who does not. Once again this is indicative of what we mean by a dealer, a dealer is someone who regularly or has a ‘habit’ of selling a product. This point follows Spencer’s comment regarding what we mean by ‘prove’. He suggests that ‘prove’ is equivalent to ‘suggesting it’. It is submitted, that in essence this is what ‘prove’ means. Ultimately, it is the jury who are to decide what evidence they consider suggests guilt opposed to innocence.
Finally it is submitted that opinion expressed by Lord Browne-Wilkinson, regarding human activity necessarily implying that the human being has reasons and beliefs on which his actions are based, has some merit. It would seem unlikely that a potential customer of drugs would act and go somewhere to obtain a substance without prior knowledge that he would be able to obtain it.
It is clear, that the disputed evidence in Kearley was relevant, and was correctly admitted by the trial judge. It indicated potential customers or a market, which is probative evidence that the defendant was a drug dealer. It is submitted, that there could be no clearer evidence than this to establish that a person was in possession of a controlled substance with intent to supply.
Kearley concerned implied assertions. According to Keane an implied assertion is :
“ An assertion where made orally, in writing or by conduct from which it is possible to infer a particular fact.”
It could be argued that Kearley contained an implied assertion conforming to this definition. The inference in this case being that the appellant was a drug dealer and was therefore guilty of possession with intent to supply. Previous authorities support the view that implied assertions fall foul of the hearsay rule and should be inadmissible.
But can it truly be said that what occurred in Kearley amounted to an implied assertion ? According to Hirst a mere request for drugs contains no assertive words, nothing which could be described as either true or false. It is submitted that this view is entirely correct. It is difficult to see any truth or fallacy in what was said to the police officers. A similar point is made by Pattenden. According to her a ‘purely conceptual view of hearsay, a non-narrative statement can not be hearsay, since a statement which does not state facts can not itself be literally true’. It is the non-statement of facts in this case, which led their Lordships in the majority to the wrong conclusion. They needed to consider the true nature of these statements as a request and not declaring an implied assertion that the appellant was a drug dealer.
Assuming that the evidence was hearsay it is submitted that they should be admissible as the dangers associated with implied assertions are not as great as they are for express assertions. Firstly, according to Dennis insincerity will rarely be in issue, as ‘it would be a very elaborate kind of lie that sought to deceive observers by a statement and/or conduct that was not intended to assert facts’. In Kearley it would have to have been elaborate given the number of callers that the police intercepted. Allen on a similar point, argues that implied assertions are generally are more reliable than express assertions. He remarks that it is unlikely that a number of callers will telephone a defendant’s premises with the deliberate intention of deceiving the police into believing that the defendant is a dealer.
Pattenden argues there is a reduced risk of lying because there is no assertive intent. She makes the point that ‘people are not credited with the intention of lying indirectly’. There is no assertive intent in implied assertions by virtue of the fact that they are implied, they are almost said by accident.
The arguments that implied assertion should be included in the hearsay rule, largely depend on the notion that there is an increased risk of misunderstanding, what should actually be implied and honest mistakes of perception and memory according to Pattenden. It is submitted, that whilst in some cases this will be true. It is arguable that the approach of Rein would solve these issues. He argues that ‘all such evidence should be admissible (if relevant) but to leave the weight of if the evidence in each case to be assessed by the jury in light of the particular background circumstances’. This he argues would take account of the particular circumstances of the case and probative value of the evidence which is always a matter of degree to be determined by commonsense. It is submitted, that this is a potential solution to a problem which has caused problems since the 19th century.
The Law Commission has recommended a change in the definition of hearsay which would mean that implied assertion will only fall foul of the hearsay rule where there is an intention to assert. This is an approach favoured by a number of academics. It is submitted that this would take account of those situations where a person intentionally makes an assertion and therefore implied assertions by their very nature are not like this. The question is whether the findings of the Commission will find favour in the eyes of the Government of the day ?
It has been urged by the House of Lords in two cases Myers v DPP and Kearley that legislative intervention is necessary. The view of Lord Griffith in Kearley that judges should accept the responsibility for reviewing and adopting, was not agreed by any of the other four judges in the case. It is submitted however, that in practice it is the legal profession and judiciary who have to deal with hearsay on a day to day basis and thus they should have some say on any legislative intervention which may occur. Finally a point made by Spencer is that in three attempts made by Parliament, each one has made hearsay more muddled than before, which according to him makes it even more depressing when the court get the chance to knock some sense into it and refuse. Spencer clearly considers that any intervention should not leave the law in the same state that it was when the legislative last intervened.
In conclusion, the decision reached by the House of Lords in Kearley is one which has been subject to much criticism, largely due to the views of the majority. It is submitted, that the view of the dissenters in relation to the issue of relevance is to be preferred. The evidence established potential customers or a market which the prosecution would seek to show in a charge of this kind. Further, the sheer number of callers (by telephone and visit) is very hard to view it as something else, 17 people could not be wrong.
Further, it is submitted that an examination of the actual evidence suggests that the callers were merely making a request for drugs, and in no way amounted to an implied assertion. Nevertheless, assuming that the evidence was an implied assertion, the dangers associated with hearsay are certainly reduced compared to that with first hand hearsay.
Furthermore, the definition proposed by the Law Commission would involve the admission of implied assertions unless an intention to assert is discovered. Finally, it seems clear that as two House of Lords cases have spoken of the time for legislative action, it is submitted that the government of today should consider accepting the proposals by the Law Commission in relation to hearsay. Intervention of this kind would not only help students of this subject but, judges and the legal profession as to where to draw the line.
inter alia Davidson v Quike [1923] NZLR 552 and McGregor v Stokes [1952] VLR 347
DPP v Kilbourne [1973] AC 726 per Lord Simon at P756
[1993] 13 Legal Studies 54, 65
Law of Evidence (1999) Page 528
Per Lord Griffiths in Kearley at Page 348
The Modern Law of Evidence (4th Edition) (Butterworths)
Wright v Doe D Tatham (1837) and Teper v R (1952)
[1993] 13 Legal Studies 54 59
[1993] 56 MLR 138, 151-152
Report No. 245: Evidence in Criminal Proceedings and Related Topics (1997)
Pattenden, Rein - (modified version though), and Cross