Two English Hearsay Heresies

Date01 March 2005
AuthorGreg Taylor
Publication Date01 March 2005
Two English hearsay
By Dr Greg Taylor
Faculty of Law, Monash University, Australia
Abstract. Using comparative material from other common-law jurisdictions
and Scotland, it is argued that two leading decisions of the House of Lords on the
scope of the hearsay rule are erroneous. In R v Kearley, the House held that
telephone requests by unknown persons for drugs made to the accused were
inadmissible hearsay. In Blastland, on an appeal against a murder conviction,
the House held that statements by a third person indicating that he knew of the
victim’s death before it became public knowledge were inadmissible. It is
noted that the reform of hearsay in the Criminal Justice Act 2003 may have an
impact on both rules, but it is submitted that this should not obscure the
fundamental errors underpinning these decisions revealed by recourse to better
reasoned decisions from other jurisdictions.
ecently, in R v O’Connell1 the English Court of Appeal found itself obliged to
allow an appeal against a conviction for possessing heroin with intent to
supply because the hearsay rule had, it was said, been infringed. The two
callers asked the accused, who they thought had answered the telephone, ‘Can you
sort me out two?’ and ‘Can you sort me out one?’. Following R v Kearley,2 the court was
constrained to hold that those statements by the callers, which could easily be
interpreted as requests for drugs, were inadmissible as hearsay. This article shows
that the view that the callers’ statements were hearsay is mistaken,3 and that Kearley
is opposed by the view taken in all major common-law jurisdictions outside England.
Although the decision on the precise facts of Kearley may be reversed as a result of the
implementation of the Criminal Justice Act 2003, its impact may still be felt in other
* Email: The author wishes to thank Mr Bruce Greenhalgh of
the Library of the Supreme Court of South Australia for his assistance in the research for this
article, and Roger Leng for his valuable suggestions on a draft.
1 [2003] EWCA Crim 502. The accused’s reactions at the time of the receipt of the calls were,
however, admissible: the accused attempted to inform the callers, by shouting towards the
telephone, that they were talking to the police rather than him.
3 For an earlier attempt to debunk Kearley on historical/precedential lines, see S. H. C. Wong,
‘The Common Law on Implied Assertions Re-Considered: Wright v Tatham in the House of
Lords’ (2003) 7 E & P 270.
circumstances and other jurisdictions, and it is therefore submitted that the decision
should be overruled at the first available opportunity. The second part of the article
is concerned with demonstrating that the infamous case of R v Blastland4 is not only
wrong, but also inconsistent with Commonwealth case law.
Heresy one—the rule in
The problem presented by cases such as O’Connell and Kearley is simple to state, but
much harder to resolve to the satisfaction of all. Is a statement which appears to be
made by a potential customer of an accused drug dealer asking for the supply of
drugs admissible to show that the accused was in fact supplying drugs? In Kearley,
the House of Lords held by the narrow margin of three to two that the requests for
drugs were inadmissible as hearsay. This was so whether the evidence was of one
request or of many. While the reasoning of their Lordships in the majority was not
uniform,5 it is reasonably accurate to say that the majority took the view that the
evidential significance of a request for drugs was that it implied a belief by the
speaker that drugs were available from the person to whom the request was made.
That belief was in itself inadmissible because irrelevant, and to the extent that it
asserted that drugs were in fact available from the person concerned, mere hearsay.
It is that latter portion of the reasoning which this article attacks. It will be argued
that the evidence of telephone requests is admissible as circumstantial evidence
tending to demonstrate the relevant fact that drugs are in fact available for purchase
from a person charged with possession of them as a dealer.
Hearsay is, as is well known, a statement made out of court which is admitted to
prove the matter asserted in it. For present purposes, it is not proposed to enter the
debate whether implied statements should be treated in the same way as express
ones,6 as was the law in England when Kearley and O’Connell were decided. The following
discussion will not be concerned with the question whether it is desirable and
intellectually defensible to treat implied assertions differently from express ones,
and whether it is part of the proper judicial role to ‘review … and adapt … the rules of
evidence to serve present society’.7 In England, Wales and Northern Ireland t his debate
is now affected by s. 115(3) of the Criminal Justice Act 2003 (expected implementation
4 April 2005).8 However, the thr ust of the current argument will not turn upon the
5 M. Hirst, ‘Conduct, Relevance and the Hearsay Rule’ (1993) 13 Legal Studies 54, 62 contains a
handy overview of the differences.
6 As, e.g., their Lordships did in Kearley [1992] 2 AC 228, 255. A different view was taken by
Mason CJ in Walton v R (1989) 166 CLR 283, 292ff.; Pollitt v R (1992) 174 CLR 558, 566.
7R v Kearley [1992] 2 AC 228 at 237.
8 See R. Taylor, M. Wasik and R. Leng, Blackstone’s Guide to the Criminal Justice Act 2003 (Oxford
University Press: Oxford, 2004) 145.

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