Hearsay

Question 1

What are the three evidential principles?

Answer 1

• relevance
• excluding evidence
• hearsay

Question 2

Subject to the exclusionary rules - is all evidence which is sufficiently relevant to the facts in issue, admissible?

Answer 2

Yes

Question 3

What should be done with all evidence which is irrelevant to the facts in issue?

Answer 3

Should be excluded

Question 4

What is the effect of an exclusionary rule?

Answer 4

If an exclusionary rule applies, it doesn’t matter how relevant the evidence in question may be, it will be inadmissible.

Question 5

What is the rule against hearsay?

Answer 5

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

Question 6

What is the general rule of hearsay?

Answer 6

That it’s inadmissible (example of exclusionary rule)

Question 7

What are the two questions which must be asked (separately)?

Answer 7

1) does the evidence fall within the definition of hearsay evidence?
if yes, then it’s prima facie inadmissible

2) does it fall within one of the exceptions to the general exclusionary rule?

Question 8

The common law excluded statements apart from which ones?

Answer 8

Apart from statements made in oral evidence given in court from being admitted as evidence of the truth of their contents
(the main reason for this was that the maker of the out of court statement wasn’t available to be cross-examined so the quality of the evidence couldn’t be tested)

Question 9

example …

Answer 9

For example, in D’s trial for the murder of V, A gives evidence that B said that D killed V.

The problem is that only A is in court to be cross-examined. There is no way of testing the credibility of B’s statement.

B may have had a motive for wanting to get D into trouble. B may be passing on what someone else said. B may simply be mistaken. What B said may have been misunderstood.

In any event, it could not be safe for a conviction to be founded on this evidence.

Question 10

Because hearsay evidence can’t be tested by cross examination in court, is there a risk of unfairness to the defendant where it is admitted?

Answer 10

yes - that risk gets greater as the importance of the hearsay evidence to the prosecution case increases… the ECHR Article 6 right to a fair trial may be engaged where hearsay evidence is admitted

Question 11

the UKSC and the ECHR have considered the effect of hearsay evidence on the fairness of trials - principles that emerged from the decided cases…

Answer 11

• the UK statutory framework for the admission of the evidence of absent witnesses is sufficient, properly applied, to provide for a fair trial
• the court must always be satisfied that there’s sufficient basis for the absence of the witness and that a fair trial will be possible
• it will be harder for the court to be satisfied that fair trial will be possible if the evidence of the absent witness is the sole or decisive evidence against the accused

Question 12

Where the hearsay evidence is critical to the case, the question of whether there can be a fair trial depends on three principal factors - what are they?

Answer 12

1) whether there’s a good reason to admit the evidence pursuant to the CJA 2003

2) Whether the evidence can be shown to be reliable

3) the extent to which counterbalancing measures have been properly applied (eg exclusionary discretion, proper directions to the jury in summing up

Question 13

What does s114 CJA 2003 say about hearsay?

Answer 13

That it’s admissible, but only if it falls within one of the exceptions in s114(1)

Question 14

S114(1) CJA 2003 - admissibility of hearsay evidence

Answer 14

1) in criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated, but only if..

a) any provision. of this chapter or any other statutory provision makes it admissible

b) any rule of law preserved by s118 makes it admissible

c) all parties to the proceedings agree to it being admissible

d) the court’s satisfied that it’s in the interests of justice for it to be admissible

Question 15

s115 CJA 2003 - statements & matters stated

Answer 15

1) In this chapter references to a statement or to a matter stated are to be read as followed

2) a statement is any representation of fact or opinion made by a person by whatever means; and it includes a representation made in a sketch, photofit or other pictorial form

3) a matter stated is one to which this chapter applies (and only if) the purpose, or one of the purposes, of the person making the statement appears to the court to have been

a) to cause another person to believe the matter or

b) to cause another person to act or a machine to operate on the basis that the matter is as stated

Question 16

Is it hearsay - the effect of s114(1) and s115 taken together was considered in R v Twist 2011

Answer 16

the court of appeal reformulated the sections as a test that determines whether or not a communication is hearsay - its in three parts

1) identify what relevant fact/matter it’s sought to prove

2) ask whether there’s a statement of that matter in the communication - if no, then no q of hearsay arises (whatever other matters may be contained in the communication)

3) if yes, ask whether it was one of the purposes (not necessarily the only or dominant purpose) of the maker of the communication that the recipient, or any other person, should believe that matter or act upon it as true
- if yes it’s hearsay
- if no it’s not hearsay

Question 17

is anything written in a private diary where the writer didn’t intend that anyone else should ever read it, hearsay?

Answer 17

no it cannot be hearsay - because there’s no intention on the part of the maker of the statement that any other person should believe anything

Question 18

Is there an issue of hearsay when the piece of evidence in question was created entirely by a device such as a CCTV system without any human input?

Answer 18

No - s115(2) contains the words ‘made by a person’

Question 19

Could an issue of hearsay arise where there’s no statement of a matter (eg where the communication consists only of the asking of a question)?

Answer 19

No - the court in Twist though that no issue of hearsay could arise

Question 20

Case law - Twist

Answer 20

In Twist the communications in question were text messages received by the defendant asking for drugs.

There was no statement that he was a drug dealer (which was the matter that the prosecution sought to prove), so the messages were not hearsay and were admissible.

The court went on to say that even if on these facts there was an implied statement that the recipient of the messages was a drug dealer, it was certainly not the intention of the sender of the message to make the recipient believe that fact.

Applying s.115(3) means that on that interpretation the messages are still not hearsay.

Question 21

If the purpose of adducing evidence of words spoken out of court is to show the effect that the words had on the person to whom they were said, rather than to show the truth of what was said - is the evidence hearsay?

Answer 21

No - therefore where a defendant wants to reveal solicitor’s advice to show why a ‘no comment’ interview was given, that evidence isn’t hearsay

Question 22

Where the words spoken have significance as a matter of law - are they hearsay?

Answer 22

No - therefore an offer of sexual services in exchange for money is admissible to show that the premises on which the words were spoken is a brothel

Question 23

Can there be hearsay where a party adduces evidence of what was said out of court while asserting that it isn’t true?

Answer 23

No - therefore the prosecution can give evidence of the defendant giving a false alibi to show that the defendant was trying to avoid being convicted of the offence

Question 24

Will evidence of words spoken out of court be admissible as original evidence?

Answer 24

Yes (often)

Question 25

If the purpose of the party adducing the evidence will be to show that the words were spoken, rather than that they were true - is the evidence hearsay?

Answer 25

No - because it’s not being admitted as ‘evidence of any matter stated’

Question 26

Can original evidence be adduced to show the state of mind of the maker of the statement?

Answer 26

Yes

Question 27

Examples of original evidence…

Answer 27

• evidence of threats made to a person
• where the threat is along the lines of ‘if you don’t do what i say, i shall harm you’… the evidence is usually being adduced to show that the threat was made, not that the maker of the threat would indeed cause harm to the person addressed

Question 28

Ratten v R 1972

Answer 28

The defence to an allegation that D murdered his wife was that the gun had gone off by accident - evidence of a 999 call made by the deceased shortly before the killing was admitted to show that she was in a distressed state at the time