"I Saw That Guy Hit You!"' The Admissibility Of Hearsay Statements

• Published date: 30 June 2021
• Subject Matter: Litigation, Mediation & Arbitration, Transport, Rail, Road & Cycling, Personal Injury
• Law Firm: McLeish Orlando LLP
• Author: Mr William Harding

If you were involved in a collision, it is extremely beneficial to your case if the collision happened in the presence of available witnesses. People that saw the collision take place and can testify that the other driver was at fault for reasons "X, Y, and Z."

However, there are not always witnesses present at the time of a collision. Further, sometimes there are witnesses present but they cannot be located afterward.

Consider the following scenario: Let's say you're on a one-way street or highway and it is very difficult to pull over to the shoulder or to come to a complete stop. You're involved in a collision. Someone drives by you and says: "I saw that guy in the blue car hit you!" Unfortunately, this potential witness continues driving and cannot be located after the fact. Well, if you want to admit this evidence to support your case, this statement is considered hearsay.

CONCERNS WITH HEARSAY STATEMENTS?

The concerns with hearsay statements surround the inability to cross-examine the person that made the statement - the declarant. If someone is available for cross-examination, then that means that their evidence can be tested. This is not the case with hearsay statements, as the declarant is unavailable for examination.

IS THAT HEARSAY STATEMENT ADMISSIBLE?

There are two ways to admit a hearsay statement, to strengthen your case. 1) Through a traditional exception to the rule against admitting hearsay; OR 2) through the principled approach to hearsay, found in the Supreme Court decision in Khelawon1.

If the statement fits a traditional exception, then it is admissible. If the statement does not fit a traditional exception BUT meets the requirements under the principled approach, then it is also admissible. In rare situations, statements that fit within a traditional exception may still be excluded if found to be unnecessary or unreliable.2

THE TRADITIONAL EXCEPTION - RES GESTAE (SPONTANEOUS UTTERANCE)

The courts have created a handful of traditional exceptions to the rule against admitting a hearsay statement.

For our purposes, the only one of interest is the res gestae exception. This refers to statements that are made spontaneously in circumstances of emotional intensity. To fall within this exception, the statement must have a tight temporal connection or be sufficiently contemporaneous to the event in question.3 In R v Khan, Madam Justice McLachlin held that the criteria for a tight temporal connection was not met, since ten to fifteen minutes...