R v. Kearley (Alan Robert) (No.1)  2 A.C. 228 is a case concerning the rules on hearsay and admissibility of evidence.
The appellant (Chippie or K)was charged with possession of drugs and intent to supply. Some of the police that arrested K stayed behind to search his house during which time he received several calls requesting for supply of drugs. None of the callers were asked to provide evidence in court but the police was.
The counsel for the appellant argued that the evidence was irrelevant because it only illustrate the state of mind of the ten callers, not the state of mind of the accused citing Subramaniam v. Public Prosecutor , Blastland and Woodhouse v. Hall (1980). It was also contended that the number of calls do not make the evidence more relevant because if one call is irrelevant then 17 calls are equally as irrelevant.
It was held in Wright v. Doe (1837) that evidence is only relevant if weight can be properly attached to it as a step towards proving an issue in the case. This case was concerned with similar issue where the court held that the sanity of the testator as expressed by a third party's letter addressed to the testator was inadmissible because of hearsay.
Unreliable - anyone can add information to this!!
The majority of the court (Lords Browne-Wilkinson and Griffiths dissenting) found that the evidence was irrelevant because it only shows a belief manifested in the minds of the callers that K would supply drugs, and says nothing about whether K actually supplied them. And even if it did imply the notion that K was a supplier of drugs, the evidence was excluded by the hearsyy rule, and thereby rendered inadmissible.
Dissented saying that he agrees with Lord Browne-Wilkinson the appeal should be dismissed. He saw the admissibility of such evidence as a matter of common sense, as long as weight can be attached to the evidence then it should be admissible.
Is the sole possible relevance of the words spoken is that by manifesting the caller's belief that the defendant is a supplier? His lordship cites the argument of the counsel for the plaintiff in the case of Wright v. Doe arguing that a letter can be used to show an "ordinary course of life", which is relevant to the case and that if a letter was written in a foreign language it would show that the testator knew the language. His lordship believe that inferences will always have to be drawn, therefore the existence of multiple possible inference is immaterial to the admissibility of the specific evidence; what is material is the consistency of the inferences, in Blastland all the inferences are equally consistent/plausible, whereas in the current case it is clearly more plausible that Chippie was supplying drugs.
But according to Lord Ackner in Blastland if one was to draw a relevant fact by necessary implication from a person that is not called a witness then it is inadmissible as hearsay. But in the case of Ratten v. The Queen Lord Wilberforce seems to support the notion that the implied assertion of a relevant fact is excluded by the hearsay rule, but the fact must be relevant directly not impliedly. The fact that in the current case the act of calling the accused per se were completely irrelevant to his accusations. Hence it is irrelevant.
His lordship nonetheless went on to conclude that implied assertions should not be excluded as hearsay, thus dismissing the appeal.
His Lordship believed that this evidence is inadmissible. The evidence was and oral request for drugs to be supplied by the appellant:
- Not spoken in the presence of the appellant
- Or in the hearing of the appellant
- Or by a witness
The evidence invited the jury to draw the inference that the appellant was a drug dealer. The evidence was only able to show that the callers are under the impression that Chippie will supply drugs to them, but such impression says nothing about whether Chippie would actually supply.
The evidence was evidence only as to the state of mind of the caller11, who wished to obtain drugs and thought that the accused would supply them. Therefore even if the prosecution was able to get them to testify it would still be inadmissible in court.
A piece of evidence is relevant if it can be said to be probative. The calls in and of themselves are irrelevant, the calls must show that the accused is supplying drugs but all it does is show that the callers believe that the accused or someone living in the same premise as the accused was supplying drugs.
In response to Lord Griffith, Lord Oliver saids:
- Layman's approach is not a good guide in a criminal trial, using common sense as a determinate of relevance is inadequate.
- The existence of potential custom does not establish intention of the supplier.
His lordship thought that the calls were relevant because:
- It showed people were resorting to the premises for the purpose of obtaining drugs from the accused. Though such circumstantial evidence may be inadequate the jury may nonetheless draw an inference from it.
- Such existence of a potential market shows an opportunity for the accused to supply drugs. Example if a coffee shop had people lined up outside to buy coffee then the chances are that he had intended to sell coffee.
- Just because the calls were irrelevant does not mean they cannot go towards proving a relevant fact. Implied assertions derived from irrelevant evidence can still be relevant.
The number of calls was also relevant because it shows the size of the potential market hence the size of opportunity to sell. If the callers were able to testify his lordship sees no reason why they should be prevented hence no reason to prevent the police.
The NZ case of Davidson v. Quirke  was cited to show that calls were relevant. The case was concerned with illegal gambling and number of telephone calls made to place bets. So long as the fact is relevant in the sense that it tend to prove an issue of fact in the case.