Hearsay

Question 1

Twist

Answer 1

Identify what matter it is sought to prove.
Was it one of purposes of statement maker to cause someone’s to believe that matter?
T: texts relevant to whether there was existing buyer and seller relationship
T and K: need dat gun text not admissible as not purpose to cause anyone to believe had a gun (issue was whether T and K were in possession of gun)
R v L: not purpose to cause V to believe had been raped (was confession so admissible)

Question 2

Acceptable reasons for W’s absence

Answer 2

S 116(2) CJA 2003

Question 3

Written business docs as hearsay

Answer 3

S 117(1) and (2) CJA 2003

Question 4

Masher

Answer 4

O left copy of M’s number plate in V’s car. V gave to police. Police’s record admitted. There was break in chain so should have been excluded

Question 5

Red gestae (i) excited utterances

Answer 5

S 118(1) para 4(a)
Andrews: new test: discounting possibility of mistake or concoction. Statement had been made to police some time after stabbing. 
Callander: same test applies to all res gestae exceptions

Question 6

Res gestae (ii) statements accompanying acts

Answer 6

S 118(1) para 4(b)
McCay: officer allowed to state which number W had given identifying D at pre trial parade

Question 7

Res gestae (iii) statements relating to maker’s intention or emotion

Answer 7

S 118(1) para 4(c)
Gilfoyle: suicide notes

Question 8

Confessions as exception to hearsay

Answer 8

S 118(1) para 5

Question 9

Statements made in furtherance of common purpose as exception to hearsay

Answer 9

S 118(1) para 7
Hume: court properly admitted texts sent between IRA terrorists
Statement made by one party to conspiracy is admissible against any other party to conspiracy as evidence of its truth

Question 10

Expert evidence as exception to hearsay

Answer 10

S 118(1) para 8

Question 11

Inclusionary discretion of hearsay

Answer 11

S 114(1)(d) 
Considerations:
Probative value
Extent of other evidence
Circumstances in which made
Reliability of maker
Difficulty in challenging statement
Extent to which such difficulty would prejudice D

Question 12

Z

Answer 12

S 114(1)(d) should be cautiously applied so as not to circumvent Parliaments rules under s 116

Question 13

Burton

Answer 13

S 114(1)(d) appropriately applied as not right to call alleged V who was child. Exceptional case

Question 14

McLean

Answer 14

Out of court statements made by one D against another admissible under s 114(1)(d)
M allowed to adduce statement made by coD1 that coD2 had stabbed V, not M.

Question 15

Y (2008)

Answer 15

S 114(1)(d) available for all types of hearsay, including confession. S 118(1) para 5 did not exclude application of s 114(1)(d)

Question 16

Finch

Answer 16

Where confession not admissible under PACE as person who pleaded guilty was no longer coD, confession may be admissible under s 114(1)(d)

Question 17

Warnick

Answer 17

X gave police number plate of car seen fleeing scene. Judge refused application for statement to be adduced under s 116(2)(e) but admitted it under s 114(1)(d). Held wrongly admitted as didn’t satisfy s 114(2)(g)

Question 18

Mayers

Answer 18

Pros may not adduce anonymous hearsay statements

Question 19

S 121(1)(c)

Answer 19

Court may admit multiple hearsay not otherwise admissible if satisfied value of evidence is so high interests of justice require later statement to be admissible for that purpose
Eg Thakrar: 2 men tried for murder. D1 fled to Cyprus first and statements rightly admitted from Ws who D1 had spoken to containing admissions.

Question 20

S 126(1) CJA 2003

Answer 20

Exclusionary discretion: taking into account danger that to admit evidence would result in undue waste of time

Question 21

S 124 CJA 2003

Answer 21

Evidence which would have been admissible as relevant were W to have testified is also admissible in W’s absence (to challenge credibility)

Question 22

S 125(1) CJA 2003

Answer 22

Power to stay proceedings if case based wholly or partly on unconvincing hearsay

Question 23

Art 6(3)(d)

Answer 23

Everyone has right to examine or have examined Ws against him.
Right to confront therefore not absolute as have examined may include pre trial exam (eg doorson v Netherlands)

Question 24

Krostovski v Netherlands

Answer 24

Art 6 violated where non appearance of W and hearsay only or important part of evidence

Question 25

Al-Khawaja and Tahery v UK

Answer 25

Allowing W’s statement to be admitted where W not available for cross ex, and that evidence is sole or decisive basis for conviction, violation of art 6(1) and (3)(d).

Question 26

Riat (reconciling horncastle and Tahery)

Answer 26

R, teacher, committed sex offences against 13yo who died before trial. Statements rightly admitted.
Housekeeper’s (dead by time of trial) video recorded interview rightly admitted at D’s trial for robbery.
Statement of 3yo V of sexual assault properly admitted under s 116(2)(b) despite no assessment of her ability to be interviewed under Achieving Best Practice conditions due to her strong reaction to examination.

Question 27

Definition of hearsay

Answer 27

S 115(2) and (3) CJA 2003

Question 28

Singh

Answer 28

Common law definition of hearsay (which included implied assertions under Kearley) no longer prevails

Question 29

Horncastle

Answer 29

Refused to adopt reasoning in Tagery. English law defines hearsay more widely as Strasbourg made clear art 6(3)(d) applies only to accusatory W statements made to investigative authorities. Importance placed on reliability of hearsay evidence in UK due to 2003 gateways.
However, art 6(3)(d) may have intrinsic value too.

Question 30

Blastland

Answer 30

B convicted of murder and appealed on grounds evidence should have been allowed that M had told others boy had been murdered before it was public knowledge. HL held irrelevant and hearsay. Arguably should have been admissible under s 116 or 114

Question 31

Sparks

Answer 31

D’s trial for assaulting young girl, V too young to testify but had told mother shortly after offence it was coloured boy. S was white. Held inadmissible hearsay. Rule against hearsay was strictly applied under common law rules. No judicial discretion to admit arguably good quality evidence. Rule was inflexible