Common Law Exceptions To The Hearsay Rule

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Although the general principle is that Hearsay evidence is inadmissible to prove the facts it expresses, over the years the courts have developed a number of exceptions. Although the Cja (2003) make some radical changes to the law regarding hearsay, it expressly preserves (s.118) many of these common law exceptions, including the following:

  • A public document or record (see Admissibility of public documents and records)
  • a Res gestae utterance (which now has a statutory definition);
  • a Confession;
  • The body of expertise drawn upon by an expert witness
  • Hearsay evidence of a person's reputation
  • A statement made by a party to a common criminal enterprise
  • Certain trivial matters such as evidence of name and address
     Note that merely being listed in s.118 does not make the evidence admissible; it must still satisfy the common law rules on admissibility. However not being listed in s.118 is definitive that a particular piece of hearsay evidence is not admissible on common law principles. Some common-law exceptions have not preserved by s.118. One is the Dying Declaration. Such a declaration would now be prima facie admissible under s.116(2)(a), as an oral statement made by a person who is unable to give evidence in person on account of his being dead. However, at common law a statement made against a persons own (pecuniary) interest was admissible in certain circumstances; there appears to be no equivalent in the new Act.

Criminal Law