Hearsay Flashcards
What is hearsay
An out of court statement tendered for the truth of its contents
What constitutes a statement
Fact or opinion made by a person by whatver means; including a representation made in sketch, photo fit or other pictorial form
Crown against twist
Identify what is is being used for
Ask whether there is a statement of that matter
Ask whether the person making the statement intended it to be relied upon
Can a private diary be hearsay
Not if never intended anyone to look at it
Is it hearsay if using what was said for their effect
No
Are legally significant words hearsay
No
Are falsehoods hearsay
It cannot be hearsay if adducing evidence of what was said outside of court while asserting it is not true
List some of the gateways for when hearsay will be allowed in
Section 116- witness is unavailable
Section 117- business documents
Section 121- multiple hearsay
Section 114- interest of justice - nico brown etc
Common law exceptions eg res gestate etc
Must the person be identified to the courts satisfaction for s 116
Yes
What are the conditions to satisfy for 116
DEAD
ILL
ABROAD
LOST
SCARED
Is witness is abroad , must the court consider what steps have been taken to secure attendance
Yes eg whether live link has been considered etc
When will witness being scared be acceptable to allow hearsay in
Only if the court considers it in the interests of justice having regard to
A) statements contents
B) to any risk that the admission may have on unfairness of a party
C) applicability of special measures
D) to any other relevant circumstances
The requirements of 117 are that
Document must have been created or received by a person in the course of trade, business, profession or other occupation, or as the holder of a paid or unpaid office
The relevant person must have reasonably be supposed to have had personal knowledge of the matters dealt with, and
What is the document is prepared for criminal proceedings- is there any additional requirements
Yes either 1 of the conditions of DIALS or
The person who supplied the info in the statement cannot be reasonably expected to have any recollection of the matters dealt with in the statements having regard to length of time since Info was supplied
Does s117 have an exclusionary discretion
Yea it adds to s78 discretion and says that the court can exclude it if statements reliability is doubtful
What is section 124
Allows opposing party to put into evidence anything that could have been put to the witness to challenge their credibility in cross examination
Need leave of court
What is section 125
Allows the judge to stop a case where the case depends wholly or partly on hearsay evidence which is so unconvincing that, considering its importance to the case the defendants conviction would be unsafe
The judge must either discharge the jury and order a retrial or direct the jury to acquit
What is section 126
Courts general discretion to exclude evidence- the court may refuse to admit a statement of a matter stated if
The court is satisfied that the case for exuding the statement, taking account of the danger that to admit it would result in undue waste of time, substantially outweighs the case for admitting it taking into account the value of the evidence
What is section 128
Confessions admissible
