1. Common law exceptions

1. Common law exceptions

Confession

The most commonly invoked exception to the hearsay rule is confession or admission made by the defendant. It is well established that a voluntarily made out-of-court statement by a defendant which constitutes a confession or admission to certain elements of the offence, is admissible as evidence against the defendant.

Dying declarations

Dying declarations are admissible at common law if:

• they are used in criminal trials for murder or manslaughter;
• the deceased victim would have been a competent witness if he or she were still alive; and
• the deceased victim made the declaration under a settled hopeless expectation of death.

The assumption is that such a declaration must have high probative value because at the point of death, every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth.

Res gestae

Under the exception of res gestae, words that accompany material actions are admissible to provide their truth. The assumption is that the spontaneity of the exclamation and its contemporaneity provide some assurance of its truthfulness.

For example, “help me – that man who assaulted me is chasing after me” uttered by a victim of a sexual assault may be regarded as res gestae because of its spontaneity and it being part and parcel of the offence. It shows that the victim did not consent to the assault, and may also suggest that the defendant was still pursuing the victim after the victim objected to the assault by running away.