Hearsay Flashcards
Subramaniam v Public Prosecutor [1956] 1 WLR 965
Criminal law - exception to hearsay
accused was found in a wounded condition.by the police.
He was charged with being in possession of ammunition which was contrary to the law.
Accused raised the defence that he had been captured by terrorist abd at all material times he was under the duress of the terrorists.
Accused wanted to give evidence of what the terrorists said to him, but the trial judge ruled that evidence of the conversation with the terrorists was not admissible unless they were called.
On appeal the court held the statements were could be admitted on the grounds of an exception to hearsay.
Held, evidence of a statement made to a witness by a person who was not himself called as a witness was not hearsay evidence and was admissible when it was proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.
O’Hara v SMT 1941 SC 363
Exception to hearsay - Res Gestae statement
**was decided when hearsay evidence was inadmissible in civil cases, so it is relevant here.
Bus had swerved, it was claimed, in order to avoid striking a pedestrian who ran in front of it. As a result of the accident, one of the passengers on the bus sued for damages for personal injury after being thrown from the bus.
The driver had attended to the injured person and returned to the bus.
A man was there when he got back and he admitted to having ran in front of the bus.
He could not be traced as a witness to the civil action, so the court had to consider whether the bus driver’s account of the “confession” by the man was admissible as part of the RES GESTAE.
A period of around 10 minutes had elapsed between the time of the accident and the “confession”.
It was held, that although there was a time gap involved, the “confession” was so clearly bound up with the events constituting the accident that it was a part of the Res Gestae.
Cinci v HM Advocate 2004 JC 103.
Exceptions to Hearsay - Res Gestae
***in this case the high court doubted the classic statement of res gestae made by Lord Norman in O’Hara.
In this case the appellant was found guilty of rape.
He appealed, artly on the basis that the trial judge has misdirected the jury on the effect of a statement allegedly made by the complainer to a third party.
When the third party found the complainer, and the accused, naked, in a shower, the complainer was alleged to have said “he raped me”.
The court held, without hesitation, that this statement was not part of the Res Gestae, contrary to the decision of the trial judge, since it was uttered after any sexual intercourse was over.
In reaching this view Lord Justice Clerk and Lord Kirkwood doubted comments made by Lord President Normand made in O’Hara – where he said that the words in question did not have to be “absolutely contemporaneous”.
The Lord President’s comments stand albeit in a weakened state after Cinci.
Ahmed v HM Advocate 2010 JC 41
Exceptions to hearsay - De Recenti statements
The appeal by the appellant (X) against conviction for the rape of a 15-year-old girl (B) had been remitted to a bench of five judges (Ahmed (Shaban) v HM Advocate [2008] HCJAC 64, 2009 S.C.L. 183). At trial, B had denied making a de recenti statement alleging rape but B’s friend (C) had given evidence that such a statement had been made. X submitted that the trial judge had misdirected the jury that it could take account of evidence of the alleged de recenti statement, albeit that B denied making it. As a matter of logic and legal principle, a de recenti statement could not be relied on to bolster the credibility of a complainer who had clearly denied making it and as B’s evidence was crucial, it could not be said that the misdirection had not had a significant effect on the jury’s decision.
Appeal refused. (1) There was no logic in excluding as inadmissible the evidence of the recipient of a de recenti statement merely because the alleged maker of the statement had not spoken to it. It was the fact that the statement was made which was evidentially significant, and its true value lay in the evidence of the recipient that the statement was made to him or her. Testimony by a complainer that she made a statement to another was of no value unless the other spoke to having heard it. (2) The authorities did not support the proposition that it was essential to the use of a de recenti statement that the complainer should herself testify that she made the statement, MacDonald (Stephen) v HM Advocate 2004 S.C.C.R. 100 disapproved. (3) The trial judge had properly directed the jury that they could rely on the de recenti statement, if they accepted that it had been made, for the sole purpose of deciding whether B had been telling the truth about what had happened to her and not as corroboration of her testimony.
Macdonald v HM Advocate 1999 SLT 533
Hearsay evidence - CP(S)A 1995 s.259(2)(e)
Shameless indecency case.
A 259 application was made for a witness who was giving evidence but the witness was only 8 years old.
Witness broke down in the witness box, S.259 application was made to have the statement admitted.
At the trial the S.259(2)(e) application was accepted and they allowed hearsay evidence to be given.
On appeal, the appeal on the grounds of the acceptance of the S.259 application was successful.
Argued that s.259(2)(e) talks about refusal, not inability or difficulty.
The appeal court held that the trial judge erred in his interpretation of the statute. The statute only takes effect once the witness has started, or is directed to give evidence and the witness subsequently refuses.
Muldoon v Herron 1970 JC 30;
Exceptions to Hearsay - previous identification
This eye-witness was the only evidence against the accused.
All three accused were convicted as a result of eyewitness evidence, the eye witness evidence was being filtered through the police officers.
Court held that no issue of hearsay arises.
The court held the evidence from the police officers is primary and direct evidence of what occured. The evidence of the police is not of the accuracy of the identification but merely states who was identified.
Appeals alleging that hearsay evidence was illegitimately admitted was refused.
Jamieson v HM Advocate (No 2) 1995 SLT 666.
Exceptions to Hearsay - previous identification
Held, appeal refused. (1) The principle of Muldoon (John Scott) v Herron 1970 J.C. 30, was not confined to identification evidence and applied to the present case. Where a witness gave a statement to the police at the time and was unable by reason of lapse of time to recall in court what had been said, this gap in the evidence could be completed by police evidence of what had been said. The police evidence was primary and direct evidence of that and no question arose of hearsay evidence. The evidence given by police to fill in the gaps together with R’s own evidence that she made a true statement at the time to the police was admissible since these were two primary sources of evidence, and taken together implicated J in the offence. (2) There was no misdirection in that the judge gave ample direction to the jury regarding the general approach to be adopted when examining the evidence of witnesses and he drew attention to the inconsistencies and changes in R’s evidence.
