R. v. Kearley, (1992) 136 N.R. 81 (HL)

• Case Date: April 08, 1992
• Jurisdiction: Canada (Federal)
• Citations: (1992), 136 N.R. 81 (HL)

R. v. Kearley (1992), 136 N.R. 81 (HL)

MLB headnote and full text

Regina v. Kearley (appellant) (On appeal from the Court of Appeal

(Criminal Division))

Indexed As: R. v. Kearley

House of Lords

London, England

Lord Griffiths, Lord Bridge of

Harwich, Lord Ackner, Lord Oliver

of Aylmerton and

Lord Browne-Wilkinson

April 8, 1992.

Summary:

Kearley was suspected by the police of being a drug dealer. He shared a home with his wife and one Frampton. The police searched the premises and found a small quantity of drugs. Kearley was arrested and taken away. At that point, the problem for the Crown was that the quantity of drugs discovered was insufficient to support a charge of possession for the purpose of dealing as opposed to possession for per­sonal consumption. However, after Kearley was taken away, the police officers answered 15 telephone calls. Ten of the callers asked for Kearley and drugs. Also, nine persons called at the house in person and seven offered to purchase drugs. Kearley was charged with, inter alia, possession of drugs with intent to supply. At the trial, the police officers were called and gave evidence about the calls, the callers and what was said. Aside from one irrelevant exception, the callers did not testify. Kearley submitted that the police officers' testimony concerning the calls and callers was inadmissible as hearsay. Kearley appealed his conviction.

The Court of Appeal of England dismissed the appeal. Kearley appealed.

The House of Lords, in a 3:2 deci­sion, allowed the appeal.

Evidence - Topic 1500

Hearsay rule - General principles and definitions - Definition and general rule - Judicial development - The House of Lords considered an application by the Crown to extend the scope of the excep­tions to the hearsay evidence rule that would permit testimony concerning tele­phone calls and personal visits received by police while at a sus­pected drug dealer's home by would-be customers - Their Lordships stated that while the state of the hearsay evidence rule might be in need of extensive review, it was a matter for the legislature and not the courts - See para­graphs 39, 98 and 130.

Evidence - Topic 1504

Hearsay rule - General principles and definitions - What constitutes hearsay - The police searched the accused's premises and discovered a small quantity of drugs - The accused was charged with possession with intent to supply - At trial, the Crown called certain police officers to testify concerning the visit to the accused's prem­ises by a person who asked the officers for the accused and who offered to buy drugs - The would-be customer did not testify - The Crown offered the testimony in the hope that the jury would draw the infer­ence from the words spoken that the accused was a drug dealer - The House of Lords ruled that the offi­cers' testimony was inadmissible as hearsay - See paragraphs 30, 51, 66 and 91.

Evidence - Topic 1504

Hearsay rule - General principles and definitions - What constitutes hearsay - The accused was charged with possession of drugs with intent to supply - At trial, the Crown called police officers to testify concerning telephone calls and personal visits to the premises by persons who asked the officers for the accused and who offered to buy drugs - The would-be customers did not testify - The Crown offered the testimony in the hope that the jury would draw the inference from the words spoken that the accused was a drug dealer - The Crown submitted that while the evi­dence of one caller might be inad­missible hearsay, the evidence con­cerning numerous customers should be admitted - The House of Lords ruled that the officers' testimony regarding the customers was inad­missible as hearsay - See paragraphs 31, 51, 66 and 95.

Cases Noticed:

Myers v. Director of Public Prosecu­tions, [1965] A.C. 1001 (H.­L.), consd. [para. 7].

Ares v. Venner, [1970] S.C.R. 608; 14 D.L.R.(3d) 4; 12 C.R.N.S. 349; 73 W.W.R.(N.S.) 347, refd to. [para. 7].

Wright v. Doe d. Tatham (1837), 7 Ad. & El. 313, apprvd. [para. 8].

Ratten v. R., [1972] A.C. 378 (P.C.), dist. [para. 16].

McGregor v. Stokes, [1952] V.L.R. 347 (Sup. Ct.), not folld. [para. 18].

R. v. Blastland, [1986] A.C. 41 (H­.L.), folld. [para. 20].

R. v. Harry, [1986] Cr. App. R. 105 (C.A.), apprvd. [para. 21].

U.S.A. v. Zenni (1980), 492 F. Supp. 464 (Dist. Ct.), consd. [para. 34].

Sturla v. Freccia (1880), 5 App. Cas. 632 (H.L.), refd to. [para. 37].

Woodward v. Goulstone (1886), 11 App. Cas. 469 (H.L.), refd to. [para. 37].

R. v. Sharp, [1988] 1 W.L.R. 7 (­H.L.), refd to. [para. 52].

Teper v. R., [1952] A.C. 480 (P.C.), consd. [para. 53].

Subramania v. Public Prosecutor, [1956] 1 W.L.R. 965, consd. [para. 54].

Woodhouse v. Hall (1981), 72 Cr. App. R. 39 (C.A.), dist. [para. 64].

Kelly v. Purvis, [1983] 1 All E.R. 525, refd to. [para. 64].

Marshall v. Watt, Struthers and County, [1953] Tas. S.R. 1, not folld. [para. 84].

Davidson v. Quirke, [1923] N.Z.L.R. 552, not folld. [para. 93].

Lenthall v. Mitchell (1933), S.A.S.R. 231 (Sup. Ct.), not folld. [para. 93].

Mathewson v. Police, [1969] N.Z.L.R. 218, not folld. [para. 93].

Police v. Machirus, [1977] 1 N.Z.L.R. 288, not folld. [para. 93].

Fingleton v. Lowen (1979), 20 S.A.S.R. 313, consd. [para. 93].

Statutes Noticed:

Misuse of Drugs Act 1971 (Eng.), sect. 4(3), sect. 5(2), sect. 5(3) [para. 41].

Authors and Works Noticed:

Cross on Evidence (5th Ed.), p. 479 [para. 66].

Cross on Evidence (7th Ed. 1990), pp. 42, [para. 52]; 517 [para. 34]; 525 [para. 93].

Stephen, Digest of the Law of Evi­dence (12th Ed.), art. 1 [para. 77].

Taylor on Evidence [para. 93].

Wigmore on Evidence (3rd Ed.), vol. 6, para. 1772, pp. 190-191 [para. 118].

Counsel:

M. DeNavarro, Q.C., and J. Aspinall, for the appellant;

A. Goddard, Q.C., and R. Shawcross, for the respondent.

This appeal was heard on the 4, 5 and 9 of December 1991, by Lord Griffiths, Lord Bridge of Harwich, Lord Ackner, Lord Oliver of Aylmerton and Lord Browne-Wilkinson of the House of Lords. Their Lord­ships' decision was given on April 8, 1992, when the following speeches were delivered:

Lord Griffiths (dissenting) - see paras. 1 to 22;

Lord Bridge of Harwich - see paras. 23 to 40;

Lord Ackner - see paras. 41 to 67;

Lord Oliver of Aylmerton - see paras. 68 to 98;

Lord Browne-Wilkinson (dis­senting) - see paras. 99 to 131.