Hearsay Evidence Flashcards
(18 cards)
Define a hearsay statement:
A statement that -
a) was made by a person other than a witness and
b) is offered in evidence at the proceeding to prove the truth of its contents
Define a statement:
Statement means
- a spoke or written assertion by a person of any matter or
- non-verbal conduct of a person that is intended by that person as an assertion
What is an unintended assertion and give an example:
The definition of “statement” does not include a statement or non-verbal conduct that is not intended to be an assertion.
An experienced seaman checked over a yacht before taking his family on it, this may imply that the vessel is seaworthy. Unless it was clear that the man intended to assert that the yacht was seaworthy, it will not a statement and will not be hearsay.
As at common law, the focus of the hearsay rule is what?
Is on the purpose for which the evidence is offered, rather than just the fact that the statement was made out-of-court.
Section 18 General admissibility of hearsay (when is a hearsay statement admissible?)
A hearsay statement is admissible in any proceeding if
a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable and
b) either
i) the maker of the statement is unavailable as a witness or
ii) the Judge considers that undue expense or delay would be caused if the maker of the statement were required to be a witness.
Explain the rationale of the rule against hearsay:
It lies in the lack of reliability of hearsay evidence:
- where the maker is not called as a witness, no opportunity to cross-examine
- Juries cannot evaluate evidence properly without being able to see the demeanour of the person
- Danger that witnesses will make mistakes about the meaning or content of statements
Why is the hearsay rule in existence?
To monitor the danger of attributing undeserved weight to evidence which cannot be adequately or properly tested.
What is the focus of Section 18(1)(a)?
The reliability of the hearsay statement itself, not the person who intends to give the hearsay evidence.
It is a threshold test for admissibility.
The reference to “reasonable assurance” of reliability means what?
That the evidence must be reliable enough for the fact-finder to consider it, and draw its own conclusions as to the weight to be placed on the evidence.
Definition of “circumstances” in relation to a statement made by a person who is NOT a witness:
a) the nature of the statement
b) the circumstances that relate to the making of the statement
c) any circumstances that relate to the veracity of the person
d) any circumstances that relate to the accuracy of the observation of the person
What is a relevant consideration when determining the reliability of a hearsay statement?
Relevant considerations may include whether it is written, oral, signed, witnessed or first-hand.
The circumstances relating to the making of the statement may include issues such as:
- the physical environment
- how long after the event the statement refers to
- relationship between the maker and the witness
Define what it means to be “unavailable as a witness”
a) dead
b) outside of NZ and is not reasonably practicable for them to be a witness
c) is unfit to be a witness because of age, physical or mental condition
d) cannot with reasonable diligence be identified or found
e) is not compellable to give evidence
Section 19 - When is a hearsay statement contained in a business record admissible?
- If the person who supplied the information used for the composition of the record is unavailable as a witness or
- The Judge considers no useful purpose would be served by requiring that person to be a witness as that person cannot reasonably be expected to recollect the matters
- Undue expense or delay
What is a business record?
A document that is made:
- to comply with a duty or in the course of business and as a record of that business
- from information supplied directly or indirectly by a person who had personal knowledge of the matters dealt with in the information supplied.
A party who proposes to offer a hearsay statement must provide every other party with a written notice stating -
a) the party’s intention to offer hearsay statement
b) the name of the maker of the statement
c) if the hearsay statement was made orally and the contents
If a hearsay statement was made in writing what must the notice to other party include?
A copy of the document in which the statement is contained.
When may the Judge dispense of the requirements under Section 22 (Notice of hearsay)
If -
a) no party is substantially prejudiced by the failure to comply
b) compliance was not reasonably practicable
c) the interests of justice so require
