Hearsay evidence

Question 1

What is the general rule against hearsay evidence?

Answer 1

Morrison v HMA 1990 JC 299 (at 312).
- “An assertion other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact asserted”.

Question 2

What are res gestae statements?

Answer 2

Statements which are so closely connected that they are said to form part of the disputed facts.
- Exception to the general rule because statements made spontaneously in the heat of the moment are unlikely to have been concocted (Ratten v R [1972] SC 378, per Lord Wilberforce at 391).
Difficulty lies in identifying what time period counts as the res gestae:
- HMA v Murray (1866) 5 Irv 232 took a relatively wide interpretation.
- Cinci v HMA 2004 JC 103 took a narrower view - LEADING AUTHORITY.

Question 3

What is the law on the admissibility of hearsay confession evidence?

Answer 3

CJ(S)A 2016 s109:
- any statement made by accused in course of being questioned by police is admissible (confirmed in McPhee v HMA [2019] HCJAC 8).

Question 4

What is the law on the adoption of prior statements?

Answer 4

A witness can adopt a statement she made to police as her evidence in chief. May be helpful if memory of events has faded etc.
Lord Coulsfield in the ScotGov’s 2007 Review of the Law and Practice of Disclosure Report:
- Under s260, prior statements of a witness can be admitted at trial if:
1. the statement is contained within a document.
2. the witness adopts the statement as evidence.
3. at the time of making the statement, they were a competent witness.
s263(4) also allows a witness to be cross examined about the contents of a prior inconsistent statement in order to test their reliability (Cook v HMA [2019] HCJAC 24).

Question 5

What are the statutory exceptions to the general rule of hearsay evidence?

Answer 5

s259(2) of the CPSA.
Hearsay evidence is admissible where the person who made the statement:
(a) is dead or unable to give evidence in any competent manner.
(b) is named and identified, but outwith the UK, and cannot attend trial.
(c) is named and identified, but cannot be found.
(d) has refused to give evidence (with the court’s permission) because it might incriminate him.
(e) has refused to take the oath or give evidence.

Question 6

Which three questions arise when hearsay evidence is admitted from an absent witness?

Answer 6

Graham (Ryan) v HMA 2019 JC 26.
1. Was there a good reason for the non-attendance of the witness?
2. If so, was the evidence “sole or decisive”?
3. If so, were there adequate counterbalancing measures?