HEARSAY NEW Flashcards
HEARSAY ONLY ADMISSIBLE IF:
† (a) any provision of this chapter or any other statutory provision makes it admissible,
† (b) any rule of law preserved by section 118 makes it admissible,
† (c) all parties to the proceedings agree to it being admissible, or
† (d) the court is satisfied that it is in the interests of justice for it to be admissible.
A statement is …
any representation of fact or opinion made by a person by whatever means; and it includes a representation made in a sketch, photofit or other pictorial form.
the definition of ‘matter stated’
where the maker of the statement had a purpose to cause another to believe the matter, or to cause the other, or a machine, to act as though it were as stated
The use of a witness’s out-of-court statement will not be hearsay if tendered as evidence of consistency rather than of a matter stated
The use of previous statements to show consistency is, however, frequently prohibited by the rule against self-serving statements, also known as the rule against narrative. Where, exceptionally, such statements are admissible, the CJA 2003, s. 120, may apply so as to render the statement admissible as evidence of any matter of which the maker’s oral evidence would have been admissible.
is a representation of fact or opinion made by a person that a purely mechanical generation of an image, say by CCTV hearsay?
NO
Examples of mechanically generated image that are allowed?
- photographs taken by a security camera during an armed robbery
- a video recording of an incident
- to hear a tape recording of a relevant conversation
just as a video recording of the commission of an offence is admissible =
a witness who has seen the recording may give evidence of what was seen, as such a person is in effect in the same position as a witness with a ‘direct view of the action’
‘sketch, photofit or other pictorial form’ =
not hearsay
A mechanically generated representation that depends for its accuracy on human input cannot be used in the absence of proof that the input was accurate
MATTER STATED
† (a)†††† to cause another person to believe the matter, or
† (b)†††† to cause another person to act or a machine to operate on the basis that the matter is as stated.
The labelling of items provides another frequent instance of hearsay.
If goods are imported in bags marked ‘Produce of Morocco’, the marks are hearsay evidence of the country of origin
example of hearsay - interpreter
are that a party to a conversation conducted through an interpreter infringes the hearsay rule by seeking to prove what the other party said by relating to the court what the interpreter said
a police officer who testifies that a person is a ‘known heroin user’ = hearsay or not
HEARSAY!
giving hearsay evidence if the basis of that knowledge is information supplied by others, including the person in question
In Williams
[caselaw]
the defence to murder was that the crime was committed by S, who did not testify.
It was said that S had confessed in a telephone conversation with E, which E had recorded.
The decision not to call E led to hearsay problems both as to the content of the recording, which if it was indeed a third-party confession might have been admissible under s. 114(1)(d) (see F17.34) in the interests of justice, and also as to the need to prove that the voice heard on the recording was indeed that of S, which could not be proved simply by reliance on E’s out-of-court assertion to that effect.
KEARLEY [CASE LAW]
The intended effect of the CJA 2003, s. 115(3), is to reverse the hearsay aspects of the decision of the House of Lords in Kearley [1992] 2 AC 228. D was charged with possession of a controlled drug with intent to supply. The amount found in D’s possession being of itself inadequate to warrant an inference of such an intent, the prosecution relied upon evidence that, after D’s arrest, a number of telephone calls had been made to his home in which the callers asked for D by his nickname and sought to buy drugs, and that a number of individuals had visited the house and asked to be supplied with drugs. None of these persons was called to give evidence at the trial. The House of Lords, by a majority, held that the hearsay rule precluded the use of the callers’ requests as evidence, in effect, of their belief that D was a dealer. Under s. 115(3), the matter impliedly stated by the callers in Kearley (that D is a dealer) is not one to which the hearsay rule applies unless the person making the request had a purpose either (a) to cause the recipient of the call to believe the matter or (b) to cause the recipient to act as though the matter is as stated. Where the caller believes that the recipient already knows the matter in question, and is therefore not speaking with either of the hearsay purposes, the evidence is original, non-hearsay evidence. On the facts of Kearley, the callers clearly thought that they were speaking to D himself. There was thus little danger that, in making their requests, they were seeking to mislead the person to whom they were speaking, or to misrepresent or exaggerate the matter on which the prosecution sought to rely, namely their belief that D was a drug dealer.
three-stage test for ascertaining whether communications are hearsay under the CJA 2003, which is focused solely on the statutory wording
[case law]
† (1)†††† Ascertain the matter sought to be proved. Hughes LJ noted that the opening words of s. 114(1) (‘admissible as evidence of any matter stated’) demonstrate that the CJA 2003, like the common law, is concerned with what it is that a party is seeking to prove. The purpose of the party in adducing a communication has therefore first to be ascertained.
† (2)†††† Provided that the matter sought to be proved is a relevant one, the next question is whether there is a statement of that matter in the communication. If not (perhaps because the communication is not a statement at all, but a question such as a request for drugs), no question of hearsay arises.
† (3)†††† If the communication does state the matter, was it one of the purposes (not necessarily the only or dominant purpose) that the recipient, or any other person, should believe that matter or that a person should act upon the basis that it is as stated (or that a machine should operate on that basis)? If yes, it is hearsay; if no, it is not.
if P wishes to rely on text messages received by T to establish intent to supply drugs = hearsay?
no
This was a relevant matter, but the messages, being mere requests for drugs, did not contain any statement that T was a dealer
Even if such a statement could be inferred, the purpose of the senders did not include any intention to cause anyone to believe he was.
CASELAW
In the appeal of Boothman, B was charged with conspiracy to supply cannabis and cocaine, and there was considerable traffic in text messages between B, who was advertising a good stock of available drugs, and other persons either placing orders or commenting on issues relating to past supply. Particular objection was taken to the mention of ‘lines’ in the incoming texts as including statements indicative of the supply of cocaine. But the senders of the texts did not have a purpose to make B believe that he was a supplier of that drug, or to induce him to act upon it as true (as distinct from acting upon it to supply further drugs). The evidence was therefore not hearsay.
In the appeal of Tomlinson and Kelly, the matter to be proved was that the accused were in possession of a gun, and the communication in question was a text message to T from a third party seeking the return of a gun. Assuming that the message included, by implication, a suggestion that T had the gun, the sender was not intent on causing T to believe that fact — rather there was a common understanding that such was the case, so again the message was not hearsay. And finally in the appeal of Lowe, L was charged with twice raping his young girlfriend following an argument. The defence was consent, and L claimed that the argument followed the intercourse rather than the other way round. Messages from L to the complainant, apparently apologising for the rape and admitting the sequence of events, were held not to be hearsay: though they contained statements of highly relevant matters, L was not seeking to cause the complainant to believe she had been raped: ‘if that is what the messages meant, they both knew that’. The statements were also confessions, but nothing turned on that.
Evidence with More than One Purpose The hearsay rule is not infringed where a statement is tendered for some reason other than to establish the matter stated, but such evidence may be difficult to distinguish from hearsay. Upon application of the hearsay test, it is perfectly possible that evidence may be admissible, original evidence for one purpose, and inadmissible hearsay for another.
Such cases require a very careful judicial direction as to the use to which the evidence may properly be put. Where it happens that the evidence is admissible in relation to one count in an indictment but not another, the inadmissibility is relevant to whether the counts should be tried together
Where a state of mind is asserted by the speaker, with the purpose of causing another to believe it, the evidence is hearsay under the CJA 2003, s. 115(3)
Such evidence may be admissible under the preserved res gestae exception in s. 118(1)
In Davis [1998] Crim LR 659, D, on being interviewed in connection with theft, failed to reveal facts upon which he afterwards sought to rely in his defence. At trial he wished to give evidence of what his solicitor had said to him prior to the interview, but was prevented from doing so on the grounds that it would infringe the hearsay rule. The Court of Appeal pointed out, correctly, that this was not necessarily the case. It was material for the jury to consider D’s reasons for failing to disclose the relevant facts in deciding whether to draw an inference against him under the CJPO 1994, s. 34
If D’s purpose in repeating the solicitor’s words was simply to show the impact on him of the advice given, the hearsay rule would not have been infringed. It would have been otherwise if D had sought to demonstrate the truth of anything said.
A statement may be used to prove the knowledge of the maker without infringing the rule:
where D denied knowing that certain premises were being used as a brothel, an advertisement that he had sought to place, referring to the premises and containing a reference to ‘many stunning masseuses’, was admissible to show that he did know
- —
(1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if—
† (a)†††† oral evidence given in the proceedings by the person who made the statement would be admissible as evidence of that matter,
† (b)†††† the person who made the statement (the relevant person) is identified to the court’s satisfaction, and
† (c)†††† any of the five conditions mentioned in subsection (2) is satisfied.
(2)†††† The conditions are—
† (a)†††† that the relevant person is dead;
† (b)†††† that the relevant person is unfit to be a witness because of his bodily or mental condition;
† (c)†††† that the relevant person is outside the United Kingdom and it is not reasonably practicable to secure his attendance;
† (d)†††† that the relevant person cannot be found although such steps as it is reasonably practicable to take to find him have been taken;
† (e)†††† that through fear the relevant person does not give (or does not continue to give) oral evidence in the proceedings, either at all or in connection with the subject matter of the statement, and the court gives leave for the statement to be given in evidence.
116
(3)†††† For the purposes of subsection (2)(e) ‘fear’ is to be widely construed and (for example) includes fear of the death or injury of another person or of financial loss.
(4)†††† Leave may be given under subsection (2)(e) only if the court considers that the statement ought to be admitted in the interests of justice, having regard—
[THE LAW]
† (a)†††† to the statement’s contents,
† (b)†††† to any risk that its admission or exclusion will result in unfairness to any party to the proceedings (and in particular to how difficult it will be to challenge the statement if the relevant person does not give oral evidence),
† (c)†††† in appropriate cases, to the fact that a direction under section 19 of the Youth Justice and Criminal Evidence Act 1999 (special measures for the giving of evidence by fearful witnesses etc) could be made in relation to the relevant person, and
† (d)†††† to any other relevant circumstances
(5)†††† A condition set out in any paragraph of subsection (2) which is in fact satisfied is to be treated as not satisfied if it is shown that the circumstances described in that paragraph are caused— in order to prevent the relevant person giving oral evidence in the proceedings (whether at all or in connection with the subject matter of the statement).
† (a)†††† by the person in support of whose case it is sought to give the statement in evidence, or
† (b)†††† by a person acting on his behalf.
SS16 - CAN SECOND-HAND HEARSAY BE ADMISSIBLE UNDER THIS?
no!
CJA 2003, s. 116, applies only to first-hand hearsay. Where a person makes a statement, but it is not clear whether the statement is based on personal knowledge or to something the maker has been told, the s. 116 statement should therefore not be admitted
which gateway can multiple hearsay be admissible?
under s. 121
and documents admissible under s. 117 may also contain more than one degree of hearsay.
what is important for multiple hearsay?
The requirement that the oral evidence of the person who made the statement would have been admissible as evidence of the matter
116(1)(a)) also serves to ensure that hearsay cannot be received if the evidence would have been inadmissible for some other reason, e.g., that it is evidence of bad character that is not admissible under the CJA 2003, Part 11
does the person who made the hearsay statement have to be identifiable ?
yes
so that those seeking to challenge its credibility must be able to ascertain who made it, and be able where appropriate to invoke s. 124
can s116 apply to anonymous witnesses ?
no
In Ford [2010] , an unknown witness to a shooting had stated that he wished to remain anonymous, but had handed the police a note containing the registration number of the getaway car. It was held, following Mayers, that the note was inadmissible.
A statement by a witness whose identity is unknown might, according to Brown (Nico) [2019], be received instead under the common law of res gestae or under the ‘interests of justice’ exception in s. 114(1)(d), but it would appear from Ford that neither exception can be invoked so as to allow witnesses to choose to provide evidence anonymously, for fear of subverting the statutory scheme in the CAJA 2009.
Ford was distinguished in Brown (Nico) where it was said that, if that decision is correct, it applies only to cases where the witness has expressed a preference to remain anonymous, and not to untraceable witnesses. In that case a woman on a bus had assisted a witness making an emergency call by providing the number of a car driven by a man who had stabbed the victim, but it proved impossible to trace her. The evidence she provided was admissible under both the res gestae and s. 114(1)(d).
Absence Caused by Party Tendering Statement - Section 116(5)
S116(5) prevents a person from being able to rely on any hearsay statement by a potential witness where that person, or someone acting on that person’s behalf, is responsible for the absence of the witness in order to prevent the witness from testifying.
Absence Caused by Party Tendering Statement - Section 116(5)
The threat by the party =
The threat did not have to be the main or primary cause of the witness’s absence, provided it was at least one of the effective causes.
Where a witness has died =
the court may move straight to the consideration of whether the principles of trial fairness permit the witness’s statement to be adduced
In the case of a witness who is said to be unfit, =
further investigation is required to ensure that the condition is satisfied.
The provision focuses not on the physical act of attending at court, but on the fitness of the witness when there to give evidence, and includes unfitness through any mental condition
is evidence indicating a medical condition made worse by stress, but not indicating clearly that the witness is unfit sufficient?
NO!
However, the judge is entitled when determining unfitness to take account of likely future consequences such as the risk that giving evidence will precipitate the witness’s suicide
Other notes about fitness
- Under the previous legislation, which was in similar terms, when a witness was unable to recollect relevant events, and medical evidence established that the cause was a mental disorder giving rise to great anxiety and failure of recall when under stress, the conditions of admissibility were satisfied
- Other pertinent authorities under the 1988 Act include Elliott [2003], where it was held that, where the defence can point to proper grounds for wishing to cross-examine a doctor who testifies to the unfitness of a patient, it is right to make an opportunity available for them to do so.
