Hearsay

Question 1

Determining whether a communication is hearsay (R v Twist)

Answer 1

1. Identify the matter/fact to be proved;
2. As whether there is a statement in relation to that matter in the communication;
3. If yes, whether one of the purposes of the maker of the communication is that any person should believe the matter/act on it.

Question 2

What is hearsay?

Answer 2

Any statement (representation of fact or opinion) which is not made by oral evidence, the person who made it intended another to believe it, and is adduced at trial as evidence of the matter stated.

Question 3

Hearsay is inadmissible unless…

Answer 3

It falls under:
1. Statutory exception;
2. Retained common law grounds;
3. In the interest of justice;
4. Court exercises it’s statutory discretion (in the IOJ).

Question 4

Statutory exception S116 CJA (requirements)

Answer 4

Exception - witness unavailable. Requirements:

1. Evidence would have been admissible at trial as oral evidence.
2. The person who made the statement has been identified to the person’s satisfaction.
3. One of the following conditions is met:

• witness is dead
• unfitness to act as a witness (rather than to give evidence)
• outside of the U.K. and not reasonably practicable to demand attendance
• witness cannot be found after reasonable steps
• fear (death/injury to self or other, or fear of financial loss. There must be a causal link between the fear and giving of evidence. Permission only granted it in the IOJ).

Question 5

Statutory exception S117

Answer 5

Business document hearsay admissible where:

1. Evidence would have been admissible at trial as oral evidence:
2. The following conditions are met:

• document created/received by a person acting in the COB.
• person who supplied the information had personal knowledge of the matter.
• each person through whom the information was supplied was acting in the COB.

Question 6

Exclusion of S117 hearsay

Answer 6

Court can exclude hearsay admissible under S117 where the statement’s reliability is doubtful in view of:
1. its content;
2. source of the information;
3. circumstances in which the information was received;
4. circumstances in which the document was created.

Question 7

Common law hearsay

Answer 7

1. Public documents;
2. Evidence of character;
3. Res gestae;
4. Confessions;
5. Statements in furtherance of common enterprise;
6. Body of expertise.

Question 8

Res gestae hearsay (requirements)

Answer 8

1. The person who made the statement was so overpowered by the event that the possibility for distortion/fabrication can be disregarded;
2. The statement was accompanied by an act that can only be properly evaluated as evidence alongside the statement;
3. The statement related to a physical sensation or mental state.

Question 9

Jury directions for res gestae

Answer 9

1. There must be no concoction on the person making the statement.
2. There was no mistake on the part of the witness as to what has been said.

Question 10

Grounds to exclude hearsay evidence (in outline)

Answer 10

1. Reliability of the business document is doubtful;
2. Case depends wholly/partially on unconvincing hearsay;
3. Superfluous;
4. Artificial.

Question 11

Statutory discretionary grounds to admit hearsay

Answer 11

1. Previous inconsistent statements admitted/proved to have been made by a witness are admissible.
2. Previous consistent statements can be adduced to rebut a suggestion of recent fabrication.

Question 12

Rule on multiple hearsay

Answer 12

A hearsay statement is not admissible to prove the fact that an earlier hearsay statement was made unless:

1. Either of the statements is admissible under S117, 119 or 120;
2. All parties to proceedings agree;
3. Court satisfied that the value of the evidence in question (taking into account the reliability of the statement) is so high that it is in the IOJ to admit it.

Effect – multiple hearsay is never allowed through S116 or preserved common law exceptions.

Question 13

Unconvincing hearsay

Answer 13

Allows a judge to stop a case where it depends wholly or partly on hearsay and evidence is so unconvincing that, considering its importance to the case against the defendant, the defendant’s conviction of the offence would be unsafe.

Note – judge must either discharge jury and order retrial, or direct jury to acquit D.

Question 14

Superfluous hearsay

Answer 14

Allows court to exclude admissible hearsay where it wold result in undue waste of time.

Question 15

Notice of hearsay (contents)

Answer 15

Must be served on the court and every other party:

1. Identifying the hearsay evidence;
2. Setting out the facts relied on making the evidence admissible;
3. Explaining how facts will be proved if disputed;
4. Explain why evidence is admissible.

Note – evidence must be attached to notice if not already served.

Question 16

Prosecution must serve notice of hearsay no more than…

Answer 16

1. Magistrates court – max 20 business days after NG plea;
2. CC – max 10 business days after NG plea.

Question 17

Defence must serve notice of hearsay…

Answer 17

As soon as reasonably practicable.

Question 18

Opposing hearsay evidence (deadline)

Answer 18

Notice must be sent max 10 business days from the latest of the following:
1. Service of notice to introduce evidence;
2. Service of the evidence objected to, if that is evidence for which no notice is required; or
3. The defendant pleads not guilty.

Question 19

Notice/application against hearsay (content requirements)

Answer 19

Application must explain:

1. Which, if any, facts set out in the notice to introduce evidence the party disputes;
2. Why evidence is not admissible; and
3. Any other objection to the evidence.

Question 20

Witness competence

Answer 20

A witness is competent when they are permitted to give evidence.

Question 21

Witness compellability

Answer 21

A witness is compellable when it can be made to give evidence for a specific party.

Question 22

Witness competence (categories)

Answer 22

Defendant – not competent for the prosecution
Children and persons suffering from mental disorders/disabilities – not competent if they can’t understand questions or give comprehensible answers.
Deaf or speech impaired witnesses – competent so long as they understand the solemnity of the oath or affirmation.

Question 23

When is a spouse compellable to give evidence by the prosecution?

Answer 23

Assault/injury (or threat of) to self or child under 16.
Sexual offences against someone under 16.
Attempts, conspiring, aiding and/or abetting the above.