(Prevention of Crimes Act 1871). Again, where there is a
question whether a person committed an offence, evidence may
be given of any fact supplying a motive or constituting preparation
for the offence, of any subsequent conduct of the person
accused, which is apparently influenced by the commission of
the offence, and of any act done by him, or by his authority, in
consequence of the offence. Thus, evidence may be given that,
after the commission of the alleged offence, the prisoner absconded,
or was in possession of the property, or the proceeds
of the property, acquired by the offence, or that he attempted
to conceal things which were or might have been used in committing
the offence, or as to the manner in which he conducted
himself when statements were made in his presence and hearing.
Statements made to or in the presence of a person charged with
an offence are admitted as evidence, not of the facts stated, but
of the conduct or demeanour of the person to whom or in whose
presence they are made, or of the general character of the transaction
of which they form part (under the res gestae rule mentioned
below).
2. Best Evidence Rule.—Statements to the effect of the best evidence rule were often made by Chief Justice Holt about the beginning of the 18th century, and became familiar in the courts. Chief Baron Gilbert, in his book on evidence, which must have been written before 1726, says that “the first and most signal rule in relation to evidence is this, that a man must have the utmost evidence the nature of the fact is capable of.” And in the great case of Omichund v. Barker (1744), Lord Hardwicke went so far as to say, “The judges and sages of the law have laid down that there is but one general rule of evidence, the best that the nature of the case will admit” (1 Atkyns 49). It is no wonder that a rule thus solemnly stated should have found a prominent place in text-books on the law of evidence. But, apart from its application to documentary evidence, it does not seem to be more than a useful guiding principle which underlies, or may be used in support of, several rules.
It is to documentary evidence that the principle is usually applied, in the form of the narrower rule excluding, subject to exceptions, secondary evidence of the contents of a document where primary evidence is obtainable. In this form the rule is a rule of exclusion, but may be most conveniently dealt with in connexion with the special subject of documentary evidence. As noticed above, the general rule does not apply to the difference between direct and indirect evidence. And, doubtless on account of its vague character, it finds no place in Stephen’s Digest.
3. Hearsay.—The term “hearsay” primarily applies to what a witness has heard another person say in respect to a fact in dispute. But it is extended to any statement, whether reduced to writing or not, which is brought before the court, not by the author of the statement, but by a person to whose knowledge the statement has been brought. Thus the hearsay rule excludes statements, oral or written, made in the first instance by a person who is not called as a witness in the case. Historically this rule may be traced to the time when the functions of the witnesses were first distinguished from the functions of the jury, and when the witnesses were required by their formula to testify de visu suo et auditu, to state what they knew about facts from the direct evidence of their senses, not from the information of others. The rule excludes statements the effect of which is liable to be altered by the narrator, and which purport to have been made by persons who did not necessarily speak under the sanction of an oath, and whose accuracy or veracity is not tested by cross-examination. It is therefore of practical utility in shutting out many loose statements and much irresponsible gossip. On the other hand, it excludes statements which are of some value as evidence, and may indeed be the only available evidence. Thus, a statement has been excluded as hearsay, even though it can be proved that the author of the statement made it on oath, or that it was against his interest when he made it, or that he is prevented by insanity or other illness from giving evidence himself, or that he has left the country and disappeared, or that he is dead.
Owing to the inconveniences which would be caused by a strict application of the rule, it has been so much eaten into by exceptions that some persons doubt whether the rule and the exceptions ought not to change places. Among the exceptions the following may be noticed: (a) Certain sworn statements.—In many cases statements made by a person whose evidence is material, but who cannot come before the court, or could not come before it without serious difficulty, delay or expense, may be admitted as evidence under proper safeguards. Under the Indictable Offences Act 1848, where a person has made a deposition before a justice at a preliminary inquiry into an offence, his deposition may be read in evidence on proof that the deponent is dead, or too ill to travel, that the deposition was taken in the presence of the accused person, and that the accused then had a full opportunity of cross-examining the deponent. The deposition must appear to be signed by the justice before whom it purports to have been taken. Depositions taken before a coroner are admissible under the same principle. And the principle probably extends to cases where the deponent is insane, or kept away by the person accused. There are other statutory provisions for the admission of depositions, as in the Criminal Law Amendment Act 1867; the Foreign Jurisdiction Act 1890; and the Children Act 1908, incorporating an act of 1894. In civil cases the rule excluding statements not made in court at the trial is much less strictly applied. Frequent use is made of evidence taken before an examiner, or under a commission. Affidavits are freely used for subordinate issues or under an arrangement between the parties, and leave may be given to use evidence taken in other proceedings. The old chancery practice, under which evidence, both at the trial and at other stages of a proceeding, was normally taken by affidavit, irrespectively of consent, was altered by the Judicature Acts. Under the existing rules of the supreme court evidence may be given by affidavit upon any motion, petition or summons, but the court or a judge may, on the application of either party, order the attendance for cross-examination of the person making the affidavit. (b) Dying declarations.—In a trial for murder or manslaughter a declaration by the person killed as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, is admissible as evidence. But this exception is very strictly construed. It must be proved that the declarant, at the time of making the declaration, was in actual danger of death, and had given up all hope of recovery. (c) Statements in pedigree cases.—On a question of pedigree the statement of a deceased person, whether based on his own personal knowledge or on family tradition, is admissible as evidence, if it is proved that the person who made the statement was related to the person about whose family relations the statement was made, and that the statement was made before the question with respect to which the evidence is required had arisen. (d) Statements as to matters of public or general interest.—Statements by deceased persons are admissible as evidence of reputation or general belief in questions relating to the existence of any public or general right or custom, or matter of public and general interest. Statements of this kind are constantly admitted in questions relating to right of way, or rights of common, or manorial or other local customs. Maps, copies of court rolls, leases and other deeds, and verdicts, judgments, and orders of court fall within the exception in cases of this kind. (e) Statements in course of duty or business.—A statement with respect to a particular fact made by a deceased person in pursuance of his duty in connexion with any office, employment or business, whether public or private, is admissible as evidence of that fact, if the statement appears to have been made from personal knowledge, and at or about the time when the fact occurred. This exception covers entries by clerks and other employees. (f) Statements against interest.—A statement made by a deceased person against his pecuniary or proprietary interest is admissible as evidence, without reference to the time at which it was made. Where such a statement is admissible the whole of it becomes admissible, though it may contain matters not against the interest of the person who made it, and though the total effect may be in his favour. Thus, where there was a question whether a particular sum was a gift or a loan, entries in an account book of receipt of interest on the sum were admitted, and a statement in the book that the alleged debtor had on a particular date acknowledged the loan was also admitted. (g) Public documents.—Under this head may be placed recitals in public acts of parliament, notices in the London, Edinburgh, or Dublin Gazette (which are made evidence by statute in a large number of cases), and entries made in the performance of duty in official registers or records, such as registers of births, deaths or marriages, registers of companies, records in judicial proceedings, and the like. An entry in a public document may be treated as a statement made in the course of duty, but it is admissible whether the person who made the statement is alive or dead, and without any evidence as to personal knowledge, or the time at which the statement is made. (h) Admissions.—By the term “admission,” as here used, is meant a statement made out of the witness-box by a party to the proceedings, whether civil or criminal, or by some person whose statements are binding on that party, against the interest of that party. The term includes admissions made in answer to interrogatories, or to a notice to admit facts, but not admissions made on the pleadings. Admissions, in this sense of the term, are admissible as evidence against the person by whom they are made, or on whom they are binding,
