Evidence: Hearsay

Question 1

What is the rule against hearsay?

Answer 1

A statement made outside of court may not be presented as evidence as proof of its contents

Question 2

s114 CJA 2003 makes hearsay admissible if…

Answer 2

(a) any provision of this chapter/other statutory provision
(b) s118
(c) all parties to proceedings agree
(d) interests of justice

Question 3

What is a statement?

Answer 3

representation of fact or opinion including sketches, photofit and pictures

Question 4

What is a matter stated?

Answer 4

purpose of making statement appears to have been
* To cause another to believe the matter
* To cause another to act or a machine to operate on that basis

Question 5

What is the method of identifying hearsay laid out in R v Twist?

Answer 5

(1) Identify what relevant fact is sought to prove
(2) Ask whether there is a statement of that matter (no = no hearsay)
(3) If yes, ask whether purpose was that recipient/other person should believe that matter or act upon it as true (yes = hearsay)

Question 6

What is not considered hearsay?

Answer 6

• Private diary
• CCTV/other device
• Questions
• Showing the effect of words
• Legally significant words
• Falsehoods

Question 7

What does original evidence mean?

Answer 7

Showing that the words were spoken, rather than that they were true

Question 8

Is original evidence hearsay?

Answer 8

Not if it is not evidence of a matter stated

Question 9

What can original evidence also be used for?

Answer 9

to show the state of mind of the maker of the statement

Question 10

What are the exceptions to hearsay?

Answer 10

• witness unavailable
• business documents
• interests of justice

Question 11

When can hearsay be admitted where a witness is unavailable?

Answer 11

• oral evidence would be admissible
• person identified
• a condition is met

Question 12

What are the conditions for unavailable witnesses?

Answer 12

• dead
• bodily/mental condition
• outside uk (practicality)
• cannot be found (practicality)
• fear

Question 13

What can fear where the witness doesnt attend include?

Answer 13

Death or injury to another
financial loss

Question 14

Does fear have to be caused by the defendant?

Answer 14

No

Question 15

What should police officers do when a witness does not want to attend?

Answer 15

Not give reassurances that statement will be admitted as evidence

Question 16

What is the rule where there is intimidation of a witness by the defendant?

Answer 16

where D intimidates witness proven to a high degree of probability, cannot complain of right to fair trial

Question 17

What are the requirements for business documents to be admitted?

Answer 17

a. Document/part created or received in course of trade, business, profession, occupation or as holder of office
b. Person supplying info had/reasonably supposed to have personal knowledge
c. Each person received in course of trade/business/profession/occupation or as holder of office

Question 18

When should hearsay evidence based on business documents be excluded?

Answer 18

where reliability is doubtful in view of:
* Contents
* Source
* Circumstances info was supplied/received
* Circumstances document was created/received

Question 19

What are the considerations to allow hearsay in the interests of justice?

Answer 19

a) Probative value/understanding other evidence
b) Other evidence given on the matter/evidence in a)
c) Importance in context
d) Circumstances
e) Reliability of maker
f) Reliability of evidence of making of statement
g) Difficulty in challenging
h) How that difficulty would prejudice party

Question 20

What are the common law exceptions to the rule on hearsay?

Answer 20

• Public information
• evidence of reputation
• res gestae
• confessions
• statements in furtherance of common enterprise
• body of expertise

Question 21

What are the rules for admissible res gestae hearsay evidence?

Answer 21

o statement so emotionally overpowered that possibility of concoction or distortion can be disregarded
o accompanied by act which can only be evaluated as evidence if considered in conjunction with the statement
o related to physical sensation or mental state

Question 22

When are previous inconsistent statements admissible?

Answer 22

• witness admits to having made
• witness is proved to have made

Question 23

When are previous consistent statements admissible?

Answer 23

to rebut suggestion of recent fabrication/recent complaint evidence

Question 24

When is multiple hearsay admissible?

Answer 24

• admissible under s117, s119 or s120
• all parties agree or
• taking into account reliability, interest of justice

Question 25

What are the protections to test the credibility of hearsay evidence?

Answer 25

opposing party can put into evidence anything that would have been challenged credibility in cross examination

Question 26

What are the protections for unconvincing hearsay evidence?

Answer 26

judge can stop case where depends wholly or partly on hearsay and evidence so unconvincing that conviction would be unsafe

Question 27

What is the effect of a judge considering hearsay evidence as unconvincing?

Answer 27

Judge discharges jury and orders retrial, or directs acquittal

Question 28

What are the protections for superfluous hearsay evidence?

Answer 28

court can exclude where would result in a waste of time

Question 29

When is notice required for hearsay evidence?

Answer 29

• interests of justice
• witness unavailable
• document in contemplation of criminal proceedings
• multiple hearsay

Question 30

When must the prosecution serve a notice of hearsay application?

Answer 30

• 20 business days after not guilty plea in MC
• 10 business days after not guilty plea in CC

Question 31

When must the defence serve a notice of hearsay application?

Answer 31

as soon as reasonably practicable

Question 32

What is the deadline for opposing hearsay evidence?

Answer 32

no more than 10 business days after the latter of:
* Service of notice
* Service of evidence
* D pleads not guilty