Hearsay evidence Flashcards
What is the definition of Hearsay?
s. 1 CEA 1995: any statement made otherwise than by a person while giving oral evidence in the proceedings, which is tendered as evidence of matters stated
i. e. an out of court statement, which is tendered at trial for the truth of it’s contents
Patel
Hearsay can include written hearsay
Chandrasekera/Gibson
Hearsay evidence can include desturs
Myers
Tendered for its testimonial effect - i.e. being adduced to establish to truth of its contents (in this case, business cards from a factory)
Subramaniam
original evidence - tendering the statements as proving that they were made, not trying to establish the truth of their content
Wright v Doe d Tatham
Hearsay rule applies to implied assertions, i.e. not intending to assert a fact, but appears to rest on an assumption that the maker of the statement believes to be true, and adduced at trial to suggest the existence of such an assumption
Kearley
police receiving calls from people asking about drugs (to the defendant) = hearsay, as the only reason they would want to adduce such statements would be to rely on the implied assertion that Kearley was a drug dealer - reiterated in O’Connell
s.115(3) CJA 2003
only if a purpose appears to be to cause another to believe the matter/cause another to act on the basis that the matter is as stated
Singh
s.114 and 118 taken together abolishes the inadmissibility of hearsay, and created a new rule which did not extend to implied assertions
Chrysostomou
circumstantial evidence is no longer inadmissible hearsay
Meaning of statement
Something that is said for the purpose of making someone believe it
Isichei
Statement if it has been said to make someone believe it
R v KN
Entries into diary did not constitute a statement - not intended to convey information to others
Jenkins
Justification for hearsay:
not on oath, no ability to cross-examine, not made in front of the defendant, risk of distortion etc
Teper
Truthfulness and accuracy cannot be tested by cross-examination, and the demeanour is lost
What statute now largely governs hearsay?
CJA 2003
What are the 4 grounds under s.114 for admissibility of hearsay
Any provision in this statute or other statutes allow it to be admitted/any rule of law preserved by s.118/agreement/it is in the interest of justice
Case for agreement
Williams
Res Gestae - s.118 - preserved common law exception
4 grounds of automatic admissibility
s.118(1)(4)(a)
statements by those emotionally overpowered by an event, but must be related to the event
Beddingfield
must be contemporaneous to the event
Ratten
phone call just after attack was res gestae
for the trial judge to be satisfied that it was clearly made in circumstances of spontaneity, and involvement in the act
Andrews
leading case - guidelines: Spontaneity Lack of special features Dramatic event statement related to the event
Carnall
1 hour after an attack was res gestae (fatal attack)
Tobi
Dangerous driving - 20 minutes later, not res gestae
s.118(1)(4)(b)
Statements accompanying an act, and necessary to evaluate it
Howe v Malkin
So mixed up in the act, that it is impossible to separate it
s.118(1)(4)(c)
Contemporaneous statements of physical/emotional sensation - i.e. relating to the defendant’s state of mind
Averson
Not in good health - admitted
Gloster
only if linked to the sensation, and does not include attribution as to its cause
Black
Small delay seems acceptable
Gilfoyle
suicide note - not suicidal nature
Thomas v Connell
Can include emotions
s.116 CJA 2003
Unavailable witness
Grounds of automatic admissibility under s.116 CJA 2003
Death, unfitness to give evidence (bodily/mental condition), outside the UK and not reasonably practicable to attend, or the statement maker cannot be found
Such grounds must be proved to the appropriate standard
R v Minors
Bodily/mental unfitness
normally requires a medical notice, and regards their ability to give evidence, and not their ability to reach court - DPP v R
Reasonably practicable
weigh up a number of factors - degree of prejudice, importance of the statement, the expense to secure attendance - Ishmael Adams/ R v Castillo
Fear
Waters: fear has to be genuinely held.
Doherty: balance between the assessment of fear, and an objective assessment of overall fairness
s.117 CJA 2003
Adduction of business records to prove the truth of the information contained within it
must be in the course of business etc
Martin
Fear includes any mistaken beliefs in threats
Hearsay in civil cases
governed by the Civil Evidence Act 1995 - s.1 - basically admissible given notice, and admitted unless challenged
Dodson
Real evidence is not hearsay (CCTV footage)
Spiby
telephone call logs were real evidence, and admissible
