Report No. 69
VI. Importance of Fact Being Relevant
25.21. Limited scope of exceptions.-
While on the subject of exceptions to the rule against hearsay, we may point out that even where, by virtue of an exception of the rule, evidence of some fact can be given by reporting a statement made by non-witness, it is necessary that the person who reports the statement should have himself heard the statement. This is explicit from the language of the section. in this sense, even where a fact can be proved by "hearsay" evidence in the sense that the provision in the section that the witness must have seen the fact is modified by virtue of a specific exception it is still necessary to comply with another part of the section, namely, if the evidence refers to a fact which could be ward, then the evidence must be the evidence of a person who says that he heard it.
While a reported fact, if otherwise admissible, can be given in evidence, (say, by virtue of, the rule permitting evidence of admissions and confessions), the person giving evidence must still comply with the rule that he must have himself heard the statement. In other words, oral evidence must, in all cases, be direct-which is what the general proposition given in the section seeks to lay down.
25.22. Section 60 to be read with section 5.-
It should be pointed out, in this connection, that section 60 should be read with section 5, which, in effect lays down that evidence may be given only of facts in issue and of relevant facts. when section 60 provides that oral evidence must be direct, and that, if the evidence refers to a fact which could be seen, then the evidence must be the evidence of a witness who says he saw that fact, the section assumes that the evidence relates to a relevant fact.1 The words "refers to" are crucial in this connection. The fact to which the evidence refers, must be a relevant fact.
1. This discussion is intended to meet the criticism of section 60 made by Markby, quote by Woodroffe.
25.23. If the evidence refers to an irrelevant fact, it is excluded by section 5 and, for this reason, wherever section 60 mentions the word "fact", one must also read the ford "relevant" as qualifying the "fact". If some such reading is not resorted to, section 60 may not fully achieve its object. If A, a Witness in a trial for an offence of theft, has been told of the theft, by B, and A reports in court what B told him, A's evidence can be said to refer to a fact which could be heard and further, A is a person who says he heard that fact.
Section 60 would, then be literally satisfie.- but it is not the intention of the legislature that A's evidence should be admissible in such a case. It is only when one reads the word "relevant' that by the combined operation of sections 5 and 60, such evidence is excluded In the hypothetical case put forth above, (i) the relevant fact is theft, and (ii) A does not say that he saw the theft. It is because of the co-existence of these two ingredient that the evidence is excluded. These two ingredients flow from section 5 and section 60, respectively.
25.24. Application of hearsay rule.-
This aspect of the matter was discussed in an article on hearsay evidence,1 published a few years ago in Australia. It is stated in that article. "The hearsay rule does not forbid the proof of what somebody said out of court. What it does forbid is the proof of a fact by telling what somebody said about that fact out of Court, a very different matter. Whether the evidence in a particular instance is admissible or not depends upon the question what fact it tends, to prove. If for example, the question is who was driving certain car when an accident took place, a witness cannot give evidence that somebody told him A was driving it.
But if the question is who told A to drive the car, the evidence of a witness who heard the instructions given, whether in the presence of the opposing party or not, stands on a quite different footing That fact is one about which he can speak from his own knowledge. If the evidence is not relevant to the issue, that may make it inadmissible: but assuming it to be relevant, it cannot be rejected on the ground that it is hearsay. If somebody told the witness to go for a doctor, or to pay a bill, or to shut the door, he may lawfully say so, provided it is part of the relevant history of the case."
1. Vol. 1, Australian U 195.