Hearsay - Exceptions I Flashcards
When could hearsay be admissible?
1) The witness is unavailable
2) It is a business document (court has discretion on reliability)
3) It is in the interests of justice to admit it
What constitutes a witness being unavailable?
1) Dead
2) Unfit to be witness
3) Outside of UK, not reasonably practicable to secure attendance
4) Relevant person cannot be found, although they reasonably tried
5) Fear of relevant person, and court gives leave for statement to be given
Can the Court admit evidence of a person not identified?
Absolutely not
Does unfit to be a witness need to be a medical condition?
No, can also be trauma such as victim of sexual assault
What constitutes fear in hearsay evidence for a witness?
- Fear of death or injury
What must court regard in admitting evidence in the interests of justice if the witness is not available due to fear?
a) Statement’s contents
b) Any risk of admission / exclusion on unfairness
c) If a direction under s19 special measures could be made
d) Any other relevant circumstances
In a witness’s fear, does it need to be caused by the D
No
What must be established between fear and failure to give evidence?
A causative link between the fear and failure to give evidence
What happens if the intimidation of a witness is proved by the Court?
The evidence is likely admissible, and the defence should not cry about the right to a fair trial being infringed
When could business documents, etc be admissible?
If the following apply:
1) Created in course of business
2) Person supplying information has personal knowledge of contents
3) Anyone who received information was done in course of business
What other documents constitute business documents?
- Medical documents
- Statement written down by feds
What conditions must be satisfied under s117 for documents to be admissible?
- One of five conditions in s116 satisfied, or
- Person who supplied information cannot be expected to have recollection of matters with in the statement (having regard to the time)
Does the court have exclusionary discretion even if conditions are satisfied?
Yes
When does s78 PACE allow court to exclude document evidence that would otherwise be admissible under s117?
If there is doubt on its content, the source, or other circumstances
What are the questions the court can ask when determining interests of justice in evidence (s114)?
1) How much probative value?
2) What other evidence can be given?
3) How important is the matter or evidence?
4) The circumstances of statement
5) How reliable is the maker
6) How reliable the evidence is
7) Whether oral evidence of the matter can be given, if not, why
8) The amount of difficulty involved in challenging statement
9) The extent to which that difficult would prejudice the party facing it
What is a prime example of interests of justice case failing?
Where witness reluctant to come to court to give evidence not to relive trauma of sexual assaults
Can the Court rely on interests of justice if they did not take reasonable steps to find or secure witness?
Nope.
