I got my driving license approximately two years ago, but I had not driven since then. I only started to drive again a month ago, and I had “successfully” caused a number of scratches to my car, which totally un-cool my cool silver Myvi SE (I know white is currently the coolest colour for car but the status of silver for car will never fade in my heart. I honestly and sincerely believe that silver is the colour of elegance and class!) . It happened in a shopping mall’s indoor parking where I panicked when a car got into my way and I swerved unnecessarily, which caused me to hit the wall. Yeah, dumb.

But that’s the point I’m trying to make. An amateur driver is more prone to accidents if compared to a driver who had been driving for years. When we see a car with a P sticker, we all tend to be more cautious so as to not get into their ways, right? (unless we notice that the driver is some old uncle and auntie, which lead us to think “okay so the driver is not the P license holder but the parent of the driver, I don’t have to tolerate with him.”) We expected them to be… clumsy.

Apparently some judges do not agree with our view. Let’s look at what happened in Nettleship v Weston [1971].

So there’s this lady, Mrs Weston who asked her friend, Mr Nettleship to teach her to drive. Mr Nettleship only agreed to the task after he was ensured that he was covered under her comprehensive car insurance policy. Of course, like all other learner-driver, Mrs Weston had accidents during her learning process. Guess what happened? During the course of a lesson when she was driving, she failed to straighten the car after having turned a corner with the result that it mounted the pavement and hit a lamp-post. Mr Nettleship broke his kneecap as a result of the collision, and sued for negligence. The trial judge dismissed his claim on the basis that the defendant only owed him a duty to do her best, and that she did not fail in that duty.
The judgment sounds fair to me but wait a minute, let’s see what Lord Denning MR had to say about this:

“The learner-driver may be doing his best, but his incompetent best is not good enough. He must drive in as good a manner as a driver of skill, experience and care, who is sound in mind and limb, who makes no errors of judgment, has good eyesight and hearing, and is free from any infirmity…”

Conclusion? Due to the fact that the standard of duty of care expected of learner-driver is the same as an experienced, skilled and careful driver, Mrs Weston, who is the driver at that time, is in control of the car and is liable for both the damage to the lamp-post and the injury done to Mr Nettleship.

I must say that this is a decision which is pretty fair for Mr Nettleship, who obviously would want to be compensated for the injuries he suffered, but I really feel so sorry for Mrs Weston. Being an amateur driver myself, I understand her predicament and difficulties so well – after all, most of us learn to be better through mistakes, don’t we? Most of us learn to ride a bike through nasty falls, isn’t it?

Lord Denning is an active judge who has an opinion on almost everything and I salute his way of thinking and the creative approach he adopted in interpreting statutes in order to enable justice to prevail, but seriously, to come up with a decision like this… I wonder if Lord Denning had ever driven a car before.

It happened when I was eight. I was in the living room, reading a storybook (Rapunzel, if I’m not mistaken) when my father entered the room. He looked furious, and he was holding a cane.

I’ve learned this formula since I’m 4…

Parent looking mad + a cane in hand = I’m going suffer some kind of injury, either on my palm or my butts, for whatever I’ve done which pissed them off.

So I got very scared. I wanted to apologize but the problem was, I had no idea what I’ve done wrong. My father got nearer and nearer and still my mind remained blank.

“I’m sorry,” I blurted out the words before he could start whacking me, even though I still don’t know what mistake I’ve committed. “I won’t do it again.”

When coerced, pressured or persuaded, people can confess to anything. Remember the Gypsy girl, Esmeralda, in Hunchback of Notre Dame? She had, against her will, falsely confessed to the murder of her lover after she was tortured by tightening a pair of heavy metal shoes on her feet, which was so painful that she eventually fainted.

Of course, there are also people who voluntarily make false confessions for the sake of notoriety, or to protect the real culprit, but today I would like to talk a little about false confessions which are involuntarily made. I would like to focus on the interrogation techniques used by the Chinese Communists, which, according to Hinkle and Wolff, “can force men to confess to crimes which they have not committed, and to believe in the truth of their confessions and express sympathy and gratitude towards those who have imprisoned them.”

  It was the latter part of the statement which aroused my curiosity. I understand that there’s plenty kinds of torture which can make a person confess to almost everything, but how on Earth can these interrogators make people believe in the false confessions they made?

  According to Schein, Schneier and Barker, the Communists achieved this by influencing people’s beliefs, attitudes, values and behaviour by psychological manipulation. This process requires three stages:

1. “Unfreezing” – where the forces pushing people towards confessing are strengthened (saying things likes “look, the evidence is adverse to you. It is better for you to confess.”)but at the same time the forces maintaining resistance are weakened (emotional distress, deprivation of sleep etc). The former is achieved via persuasion whereas the latter is achieved via coercion. During this stage, the subjects are usually placed in a situation where there is no escape, causing the subjects to feel hopeless and start to believe that the only means to escape is to confess.

2. “Changing” – This occurs after the prisoners’ needs and motives are changed and they now have a clear idea as to the new direction they should take. In my “cane-in-father’s-hand” example, this would have occured when my father got nearer to me. That’s when my motive is changed from “I am innocent therefore I should not confess” to “I’ll say anything just to avoid being caned.”

3. “Refreezing” – This is where new information or belief is being integrated into the prisoner’s self-concept and value system. Usually there will be some form of incentive for the prisoner to confess, such as a less severe sentencing.

  Usually, such influences would not be permanent. Once the prisoner is removed from the social support system which reinforces the attitude change, they will usually revert to their original beliefs.

  Anyway, just a little evil idea that came across my mind all of a sudden: to those with a partner, maybe you can use the unfreezing-changing-refreezing process on your partner to get them to confess to some kind of mistake just so they feel guilty and start to treat you better… Hey, I’m not making any suggestions, alright? I’m just sharing my thoughts, and there’s a distinction between sharing and suggesting *wink*

For every paper, I have to answer four questions, and for each question, the maximum score is 25. Same for my assignments. So far, the highest score I obtained for my assignments was 15, so you can imagine how surprised I was when I received 19 for my evidence assignment (2008 Zone B Part 1 Question 1). I know it’s going to be extremely boring for those who come across my blog to read a 3-page-plus assignment, but please bear with me, okay? The joy was so overwhelming that I had to share it here.

NOTE: My boyfriend thought it looked like a 14 instead of 19, but I was quite sure I saw my lecturer scribbled a 19 on my paper.

NOTE 2: Some paragraphs do not seem to be connected with the essay as a whole because my lecturer had striked off three whole paragraphs he considered as “unnecessary examples.”

Question:

What justifications have been put forward for having a rule against hearsay? How convincing are they?

Hearsay is defined in section 1(2) of the Civil Evidence Act 1995 as a statement made otherwise than by a person while giving oral evidence in the proceedings which is tendered as evidence of the matters stated. As a general rule, hearsay evidence is not admissible. This is stated in Cross on Evidence – “an assertion other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact asserted” – and this rule is adopted by Lord Havers LC in R v Sharp.

Oath is seen as a ceremonial and religious symbol which may induce in the witness a feeling of special obligation to speak the truth. Taking of the oath is also a powerful disincentive to perjury. Psychological and anecdotal evidence suggests that the taking of oath may at least have the effect of making witnesses more cautious when giving their testimony than they might otherwise be, and since hearsay evidence is made out of court rather than an oath in the court. However, even Tregarthen had argued in 1915 that the objection to admission of hearsay on the basis that one is not in fear of punishment for stating what is not true is, in the twentieth century, a consideration that has no weight, as people are no longer over-awed by the mummery of oath. Oath is not an absolute guarantor of reliability – even the substantive law of hearsay appears to treat the oath as being of secondary importance to cross-examination as a means of ensuring the reliability of evidence. Grose J had said in R v Eriswell (The Inhabitants): “Evidence, though upon oath, to affect an absent person, is incompetent, because he cannot cross-examine; as nothing can be more unjust than that a person should be bound by evidence which he is not permitted to hear.” Therefore, oath does not seem to be a convincing justification for rule against hearsay. What about cross-examination?

Wigmore had described cross-examination as “beyond any doubt the greatest legal engine ever invented for the discovery of truth”, as it constitutes a powerful weapon in exposing the possible unreliability of the witness’s testimony. Cross-examination is said to be able to expose faulty perception, erroneous memory, ambiguity in narration and insincerity. However, is cross examination that powerful? There may be situations where a witness’s testimony will be successfully “broken down” in cross-examination where the witness will end up admitting to lying, but a strong-willed witness intent on deceiving will be unlikely to be affected by the process of cross-examination. He would have planned his story ahead. He might even have rehearsed it. Therefore, cross-examination is likely to be much less effective in exposing insincerity. Furthermore, efficacy of cross-examination in exposing faulty perception may be limited too. Also, suggesting facts to a witness in cross examination may actually distort, rather than assist his or her memory. If a witness is being questioned on the scene of the murder :”How was the scene? Was the alley empty, or was there anything that might suggest that there might be someone lurking in the corner?” The witness probably had not observed anything strange at all, but the way the question was phrased could trigger him to think “I indeed saw some large boxes in the corner” and he would continue to think “the area where the boxes were located were darker… I think there were shadows around the boxes… It must be human’s shadow… What does a shadow indicate?” which eventually led him to think “yes! There was someone hiding behind the boxes!” After all, memories are fragile. Also, it should be noted that cross-examination would be of little utility in a case like Myers v DPP, where the hearsay evidence in question was a contemporaneous record made by workers in a motor car factory of cylinder block and chassis numbers. How could cross-examination help in such a situation? Surely the workers’ recollection of several years later of parts and numbers have been non-existent.

Apart from oath and cross-examination )both which our analysis above had proven them to be not that convincing as justification for rule against hearsay), demeanour is also another justification for rule against hearsay. Observation of the demeanour of a witness would provide a good indication of the reliability of his testimony. Sergel had argued that the stress experienced by a perjurer, coming from the fear and public humiliation and prosecution would contribute to their demeanour, which can be used to detect their unreliability. On the other hand, Wellborn had presented experimental research which revealed that demeanour is of little benefit to ordinary observers in assessing whether a person is untruthful. Observation of facial behavior may actually decreases the accuracy of lie detection, and little assistance would be gained from listening to the voice of the respondent, as there is no compelling evidence that lying is accompanied by distinctive body behavior which can be discerned by observers. The capacity of ordinary people to detect unreliability by observing demeanour could be said as nothing more than a myth, hence it is definitely not a convincing justification for having a rule against hearsay.

Perhaps the most convincing justification for having a rule against hearsay is the fact that hearsay evidence is not the best evidence. Allow me to quote A.Pope, The Temple of Fame:

“The flying Rumours gather’d as they roll’d;
Scarce any Tale was sooner heard than told;
And all who told it, added something new;
And all who heard it, made Enlargements too.”

The descriptions of events can become distorted as they are passed from person to person, either due to defects in the perception, memory, sincerity, or ability to narrate clearly of the maker of the statement. As Loftus described it, ability to perceive an event accurately is dependent on “event factor” and “witness factor”, which include length of time for which the witness was exposed to the event, frequency of exposure to the event and significance of the event, and a variety of other factors. Generally, the longer the time a witness is exposed to an event, or the more frequent he is exposed to it, or the more the significant the event is, the ability to perceive an event accurately will be higher. Faulty perception could also be caused by factors like cultural expectations, expectations from past experience, personal prejudices, momentary or temporary expectations, perceptual activity and stress. A classic experiment conducted by Allport and Postman clearly shows that people who are prejudiced against Blacks are more likely to perceive Blacks as criminals, even though this might not be the case.

Also, in detecting ambiguity, the “filling phenomenon” may make the task more difficult than it already is. On hearing an account of events, there is a tendency to compensate for any ambiguities by “filing in” gaps with considerations drawn from our past experience or knowledge. In Huff v White Motor Corp, there was a statement made by a deceased person that “as he was approaching the curve or starting into it his pant leg was on fire and he was trying to put his pant leg out and lost control and hit the bridge abutment and then the truck was on fire.” It is unclear, but most people who heard the statement would have formed a clear picture of the events in their minds through the filling phenomenon, and this formed picture might or might not be what actually had happened. Another example is found in the celebrated 1952 trial for murder of Derek Bentley, where Bentley had shouted to the principal offender, “Let him have it, Chris.” What as Bentley trying to say: to start the shooting, or to let the police have the gun? It remains unclear.

Another sound justification for rule against hearsay is extrinsic policy considerations. In Nesson’s view, hearsay rule is a mechanism for promoting continuing public acceptance of jury verdicts. Individuals would also surely regard as procedurally fairer a system where observers of events testify directly to what they saw, than one where hearsay evidence is adduced, which will in turn encourage compliance with the law. Hearsay rule also acts as a deterrent to certain types of police impropriety, discouraging police from extracting statements from witnesses by questionable means, as hearsay rule will prohibit admissibility of out-of-court statements. More importantly, the rule against hearsay protects the value of individual dignity in criminal proceedings. The ability of an accused person to confront and cross-examine the maker of a statement against him, and not just a person reporting the statement, is consistent with the right of accused person to be treated with dignity.

Some of the justifications for hearsay rule may seem irrelevant today, but most of it remain as sound and convincing justification for having a rule. Of course, there remains situations where hearsay evidence should be admitted in the interest of justice as there are circumstances where hearsay evidence will be the best evidence, but that will not be a discussion for the purpose of this essay. For now, it is enough to remember that although C.F.H. Tapper said that although the statements of third persons are acted upon in the practical affairs of everyday life without the slightest hesitation or suspicion and that ordinary experience shows that it is quite safe to infer the existence of a thing or the happening of an event from second-hand testimony, the fact remains that justice must not only be done but must be seen to be done, and that is why there is a need to have rule against hearsay.

  Have you heard of the news about the 14-year-old girl who was intoxicated and raped/sexually assaulted when she went karaoke with her friends?  5 suspects had been caught.  

I believe the news first appeared in Sin Chew approximately two or three days ago. There were no names reported so as to protect the identity of the victim, and the tone of the article was obviously siding the victim. It was written in a way as if the reporter was writing a story, not reporting a news. No pictures. It didn’t appear on the first page but the follow up on 12/12/2009 did (complete with pictures and all, albeit censored). There was a line saying something like “thanks to our previous publication this matter had received massive attention from all parties, hence the immediate apprehension of the 5 suspects.”

  Out of curiosity, I flipped through The Star. I couldn’t find any articles in The Star reporting about this matter.

  Taking into account the fact that the headmaster of the school refuse to shoulder responsibility for what had happened on the basis that it did not happen within the school compound and how the victim’s case had been postponed prior to the publication, I guess I can safely conclude that if the publication was really to be credited for the apprehension, then the media really ought to have more freedom of expression.

  This leads us to a discussion of qualified privilege.

  Per Lord Atkinson in Adam v Ward, the traditional qualified privilege applies where the person who makes a communication has an interest or a duty to communicate the information to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This privilege had been extended to apply in other situations. In later cases, qualified privilege was allowed in respect of politica speech, subject to a requirement of reasonable care and finallly, in Jameel v Wall Street Journal Europe Sprl, it appears to apply to publications in the media generally, as long as the issue is in public interest, and it is not published with malice, and the reporter reporting it exercised responsible journalism. This is a departure from the conventional qualified privilege, where reciprocity is the essence of the privilege.  

  The question is: what kind of issues are in public interest? Issues that interest the public are not necessarily issues of public interest. The public loves to know which star is hooking up with which star, and who’s breaking up with who, Who has fake boobs and who had more plastic surgeries and stuff like that, but that does not seem like issues of public interest (on the contrary it seems like invasion of privacy to me).

  Political issues are matters of public interest as we need to know who’s leading and ruling us tomorrow; it affects our lives (like, whether this leader will make us pay more taxes), and reportings of criminal offences must be matters of public interest too, as we all want the bad guys locked up so we can sleep with no fear.

  However, in reporting matters like political and criminal issues, it is of utmost importance to exercise responsible journalism because there’s a line between reporting and defaming, and the line between these two is a real thin one. Lord Nicholls of Birkenhead in Reynolds v Times Newspapers Ltd gave ten guidelines for responsible journalism:

1. The seriousness of the allegation.

2. The nature of the information, and the extent to which the subject-matter is a matter of public concern.

3. The source of the information.

4. The steps taken to verify the information.

5. The status of the information.

6. The urgency of the matter.

7. Whether comment was sought from the plaintiff.

6. Whether the article contained the gist of the plaintiff’s side of story.

9. The tone of the article.

10. The circumstances of the publication.  

  All that said and done, with all the applaud and cheers for Sin Chew’s success at prompting investigations which perhaps protect pontential victims, at the end of the day I wonder if anything done had actually made the victim felt better? Perhaps it made her felt better knowing that justice still exists, but the harm to her was done and it could not be undone.

  If I was put in her shoes, I believe I would have gone mad within days. I would have thought that I do not deserve to be loved anymore. I salute her for her ability to stand strong and for not losing respect in herself, and I wish that she will continue to stay strong, and my sincerest prayers for her to find the light at the end of the tunnel, to have a whole new and better life, and to find her true love someday in future.

I’ve watched Jump, a movie about a village girl who loves dancing and had travelled to the town to make her dreams come true. It’s a typical nobody-to-somebody Cinderella story with an “and they live happily ever after” ending with a modern day Prince Charming.

What left me thinking was when the employer told the village girl that she should be realistic. She’s got a job in the factory, and she should do her best in her job instead of trying to be a good dancer, which is not something that a normal village girl is expected to achieve. She should realize that pursuing unrealistic dreams cannot fill her tummy.

Of course, in the end the village girl did become somebody (what do you expect? This is a movie. It is supposed to be dramatically unreal). However, I find myself agreeing with what was said by the employer more. Perhaps two years ago when I was still immature, I would say that it is more important to pursue dreams but this is not how I think now.

The importance of being realistic leads us to a case: Fairchild v Glenhaven Funeral Services Ltd.

In this case, the employee were exposed to a dangerous substance – asbestos dust during their course of employments with a few employers. The exposure to asbestos dust had led them to suffer from mesothelioma, a type of cancer. The problem here was that human science could not prove which employer caused the employee to suffer from mesothelioma, because the precise manner in which asbestos dust caused the cancer was unknown to medical science.

Ideally, the employee need to prove on balance of probabilities that the employer’s negligence had indeed caused him to suffer from cancer, but this is now impossible due to the limitation of medical science. Does it mean that the employer would not be held liable? Lord Hoffman and Lord Rodger said no. The limitation of medical science must be taken into account and therefore, the employee need to prove it on balance of probabilities. The standard required would be lowered because judges have to be real too. They cannot expect the employee to prove something that no one else at that time can prove. Judges do not require the employee to carry out a mission impossible.

Therefore, if I am the village girl in Jump, I think I will stick to my job in the factory, and I will only attempt to pursue my dreams when I have the ability to pursue my dreams. Maybe some will argue that this is the easy way out, but I think I’m merely being practical, and there’s nothing wrong about being practical. It could also be argued that by the time I have the money to learn to dance, I might be too old to do so, but have you guys saw the news about a bunch of old Taiwan ladies who were in their 60’s actually try to learn Ballet, and they actually danced reasonably well after learning for two years?

I’ll give priority to my tummy over my dreams, but speaking of dreams, I do hope to learn pole dancing someday in future. Heh.

Most of us are prejudiced in one way or another. Me, for instance, when I notice a guy and a girl quarreling, being a feminist, I will immediately conclude that the guy had done something wrong. I knew that to assume is to make an ass out of “u” and me, and I know what I think does not necessarily reflect what’s actually going on, but I will subconsciously perceive it in that manner because I am prejudiced that way.

Our ability to perceive accurately is affected by a number of factors. Basically, we see what we expect to see. What we expect to see depends on our cultural expectations, past experiences, personal prejudices and momentary expectations. For me, cultural expectations, to a very large extent, depends on our personal prejudices. I have friends who think all Englishmen are good-looking, so when they get to know real Englishmen in real life, before they were introduced to each other, in their minds they were already expecting to be introduced to a Robert Pattinson-look alike.

  I’ll like to adduce evidence to prove my opinion. Allow me to share with you guys something I’ve came across when I was reading Andrew Choo’s article on hearsay rule, The Rationales for The Rule.

  In the 1940s, a series of experiments were conducted by Allport and Postman. They used a picture which showed the interior of a crowded subway, with two people standing up, talking to each other. One of them was a well-groomed black man. The other man was a white man, who was holding a razor blade. This picture was showed to a subject, Subject A,  for a brief moment. Subject A then has to tell Subject B about the contents of the picture, who then have to repeat the information to Subject C. The process keep repeating itself until it reaches six or seven subjects. This experiment was conducted on a number of people. It was found there most people end up recalling the picture as showing a black man holding the razor. Some even ended up recalling the black man “brandishing it widly” or “threatening the white man with the razor.”

  Conclusion? Don’t always believe in what you see.

P.S. I suppose that’s the reason why my boyfriend always tell me: Just because I’m looking at somewhere else, it does not mean I’m checking out hot chicks!

  Anyway, are you guys prejudiced against anything?

  Ladies, when you get to know a new guy, please take off that rosy-colored spectacles. Use the magnifying glasses to scrutiny him: You don’t want to end up with nothing but sadness and sorrows like the ladies in the cases below.

  Look at what happened in Chhokar v Chhokar [1984]. In this case, a husband and wife purchased the registered freehold of a matrimonial home (In simple English, they purchased a house). They both contributed to the purchase price and upkeep of the house, but guess what? It was registered in the name of the husband only. In the next year both of them went to India but the husband later returned home alone. Few weeks later the wife, who was seven month pregnant, returned home too. She was unaware of the fact that her husband had mad arrangement to sell the house to someone else at a price below market value. The wife and the new born baby returned home after discharged from hospital to discover that all the locks had been changed.

  None of us would want that to happen to us, right? For me, I would want my future husband to be by my side when I’m giving birth. Ideally, he should be there to hold my hands and comfort me as he watched me struggle. I want him to be there for me, not to be at somewhere else doing something that will ruin my life and break my heart. It’s bad enough that I’m breaking my vagina to give him a child; he doesn’t have to break anything else that could further enhance my detriment.

  Now let’s look at another case: Kingsnorth Finance Co Ltd v Tizard [1986]. Here in this case husband had the unregistered title of the property in his name only, but he held it on trust for sale for himself and his wife (meaning the wife was not the legal owner of the house). The marriage the broken down and the wife occasionally spent nights at her sister’s house. However, whenever her husband is absent from the house for business, she will return to their matrimonial home and continue to take care of the kids as well as to prepare herself for work.

  What happened next? The husband negotiated a loan with Kingsnorth Finance and he applied as a single. When an agent for Kingsnorth Finance inspected his property, he confessed to the agent that he was married, but he then claimed that his wife and left him and is currently living somewhere else, which is untrue.

  Tell me why: Why is it that a wife can continue to tolerate and take care of the kids when she is so angry with her husband, but the husband cannot do the same?

  We shall look at another case called Lloyds Bank plc v Rosset [1989]. This is a case where husband and wife purchased a semi-derelict farmhouse, where the wife had a beneficial interest in the property. The husband sought a short term loan without his wife’s knowledge and he had left his farm and wife when they were faced with matrimonial difficulties. The loan was not repaid and the bank now sought an order for possession.

  Why are some guys not only heartless and cruel but useless as well? I mean, if you are good-looking, smart, intelligent but you are cruel and heartless… well at least you are not a piece of crap, even though you obviously are nothing but crap in the eyes of the woman who had her heart broken by you, but at least to the rest of the world you are still reputable. You will be something like a vampire: you are dreadful, you are evil, people are scared of you, but the ladies will still pay money to watch you in the cinema. On the other hand, if you are cruel and heartless, and you have neither looks nor brains… you are nothing but crap towards everyone who is aware of your existence.

  Of course, while we point the finger of blame at the men, us ladies ought to learn a thing or two from these cases as well: Just because you are in love, it doesn’t mean you have to be a noble person and allow your man to do whatever he wants. Know your rights and protect your rights so he can’t take advantage of you. Being in love does not mean you have to stop being rational!

P.S. Studying land law sometimes make me hate men. So far I haven’t come across any case that portrays man as someone fantastic!