Hearsay part 3
Last week I said we would look at another alarming application of the hearsay. it arises in the case of Sparks v. The Queen [1964] A.C. 964, P.C. . (one of the barristers in the case, G Le Quesne Q.C., was at the 50th Commonwealth law conference couple of years ago one of only two people, the other being an Indian lawyer, who had both been present at the first Commonwealth law conference 50 years previously. Sparks is another good illustration of how a doctrine, originally designed to protect the accused from the jury giving too much weight to evidence from witnesses they had not heard, could in practice end up being an instrument of oppression.
This was a case where the appellant was convicted of indecently assaulting a girl under the age of 4 years and in consequence was sentenced to two years' imprisonment. The little girl had been left in a car, and her mother checked on her from time to time. On one such occasion the little girl had gone missing. When the little girl was found she was given to her mother, and the mother gave the following evidence in the investigation (the little girl, being too young, gave no evidence at trial). "I lifted up her dress and I found blood on her body. I do not recall Wendy Sue saying anything to me at that time. But she did say that I should have looked the other way, I do not know what, she meant. Then I asked her who took her out of the car. I asked this and she said that she did not know. I then asked her what did the person look like, and she said that it was a coloured boy. She did not say anything more after that.". The defendant was a white man aged 27, married with three children, a staff sergeant in the United States Air Force. He had been drunk on the evening in question, and he said that he had seen the child in the street and the child had followed him. When he arrived at a friend's, Sergeant Cochrane, they took the child in the house and got in touch with the police. The defendant had a hazy recollection of the previous evening, having been drunk, but eventually he made a statement which included admissions, (and for someone in his state a suspiciously detailed account of what allegedly happened) which was said to have arisen because of threats or promises made by the police.
There was an issue in the case as regards the admissibility of the admissions given the circumstances in which they were made (suggesting that they were improper and unreliable). There was also in issue as to whether the comments made by the girl constituted part of what is known as the "res gestae" which is an exception to the hearsay rule. We shall examine next week how that was dealt with in this case. Other than that, the issue in the case was whether the statement by the little girl was hearsay or not.
As a matter of commonsense one would have thought that what the little girl said about the nature of the person who took her was critical. The person who took her out of the car was overwhelmingly likely to be the person who assaulted her. It is difficult to see how someone could have taken her out of the car and not been the party responsible. (Why were they taking her out of the car? The idea that someone could take her out of the car, do nothing, and then she had the misfortune to be assaulted by a passerby, is stretching credulity a little). Therefore one might have thought that the fact that the little girl said that the person who took her was coloured was a crucial piece of information which would the jury needed to know in deciding whether the white defendant could be guilty, or indeed whether his admissions were true or incredible or in some way coerced out of him. In fact the jury never heard a word of this. The evidence of what the little girl said was excluded on the grounds that it was hearsay. The appeal court upheld this.
Lord Morris of Borth-Y-Gest in delivering the judgement of the court stated as follows "The alleged utterance was made ..............very shortly after the girl was restored to her mother. That was probably within 11/2 hours of the time when the girl left the motor car. The words, if spoken, were probably spoken at the earliest opportunity for the making of a complaint to the mother............There was no suggestion that the girl made a complaint when in the company of anyone at Sergeant Cochrane's house. (This was the friend at whose house the defendant had attended when the girl was following him) The mother would clearly be giving hearsay evidence if she were permitted to state what her girl had said to her. ...............It was said that "it was manifestly unjust for the jury to be left throughout the whole trial with the impression that the child could not give any clue to the identity of her assailant." The cause of justice is, however, best served by adherence to rules which have long been recognised and settled. If the girl had made a remark to her mother (not in the presence of the appellant) to the effect that it was the appellant who had assaulted her and if the girl was not to be a witness at the trial, evidence as to what she had said would be the merest hearsay. In such circumstances it would be the defence who would wish to challenge a contention, if advanced, that it would be "manifestly unjust" for the jury not to know that the girl had given a clue to the identity of her assailant. If it is said that hearsay evidence should freely be admitted and that there should be concentration in any particular case upon deciding as to its value or weight it is sufficient to say that our law has not been evolved upon such lines but is firmly based upon the view that it is wiser and better that hearsay should be excluded save in certain well defined and rather exceptional circumstances.".
A hard rule indeed in the circumstances. However the decision did not really put their Lordships to the test, because the appeal was allowed on the basis of unreliability of the admissions. Whether their Lordships would have taken the same view as to unreliability without knowing of the hearsay comment, or absent that would have taken the same view as to the desirability or otherwise admitting the evidence of what the little girl said, we will never know. It does illustrate the harsh way that doctrine could operate.