Hearsay summary Flashcards
What 5 points explain the problems with Hearsay?
- The declarant cannot be cross-examined.
- It is difficult to assess the weight that can be attached to the evidence.
- It is difficult to assess the credibility of the declarant.
- The declaration was not made on oath.
- The danger of inaccuracy through repeating another persons representation.
What is Hearsay in accordance with Section 59 of the Evidence Act?
59)(1) evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation.
What is a representation?
A representation is;
- Words spoken
- Bodily gestures
- Things in a written form
To establish if a section 59 ‘Hearsay’ applies to a representation; what 3 rules apply?
1) Was the representation concerning the evidence made out of court? (Unsworn evidence out of the witness box) - if yes: section 59 applies.
2) Did the witness perceive the evidence directly with their own senses? - if no: section 59 applies.
3) Is the purpose of giving the evidence to ask the court to accept the out of court representation as being truth? (In proving an element of the offence) - if yes: section 59 applies.
Is hearsay evidence admissible?
NO - generally; unless an exception to the hearsay rule applies.
What kind direct evidence does a witness provide?
Admissible evidence which has been perceived directly by a person with their own senses. Of which they can make representations under oath.
What are the exceptions to the hearsay rule in accordance with the Evidence Act
S60 - Evidence relevant for non hearsay purpose.
S65 - Maker not available.
S66 - Maker available.
S69 - Business records.
And more: but these are relevant to the DEP course notes.
How does section 60 of the Evidence act, ‘hearsay for non hearsay purpose’ apply?
Section 60 - ‘Hearsay for non-hearsay purpose applies where we wish to use a previous representation NOT to prove the existence of a fact but for another purpose.
(such as reasonable suspicion for searches etc)
In order to call evidence under section 65 evidence act, ‘maker unavailable’, what must you prove?
And what effect does it have if accepted at court?
- The maker is unavailable.
- Comply with notification requirements as per Section 67.
- One of the criteria under 65(2) must be satisfied by the prosecution. Or 65(8) if by the defence. (Show all reasonable attempts)
- The evidence must of been perceived first hand by this witness.
If accepted: Available witness can give evidence of their initial conversation with the unavailable person.
In order to call evidence under section 66 evidence act, ‘maker available’, what must you prove?
And what effect does it have at court?
- The maker is available.
- The maker will be called in the proceedings.
- Memory was fresh at the time of making.
- Perceived first hand by witness.
Effect at court: Another witness who had a conversation with that person (maker) can give hearsay evidence relating to the identification of a person, place or thing; as identified by that person (maker)
You attend an incident and have a conversation with a witness. The witness signs a statement including the conversation you had with them; which is fresh in their mind.
1) If they aren’t available for court what can you do?
2) If they are available for court what can you do?
1) If they AREN’T available; under section 65; give the defence written notice, and you may give evidence of that conversation.
2) if they ARE available; under section 66, you may give evidence from that conversation of the identification of a person, place or thing.
In accordance with Section 69 of the Evidence Act; business records are an exception to the hearsay rule.
Define what a business record must be?
A business record must be made ‘in the course of or for the purposes of the business’.
This does not include witness statements, intel reports, COPs events, etc)
Hearsay evidence is classes as unreliable evidence.
If it is not permitted in accordance with an exception to the rule; what is it subject to?
It may be subject to section 165 of the Evidence Act which defines it as ‘unreliable evidence’.
Or subject to the other discretionary exclusion rules such as sections 135 to 138 of the Evidence Act.
How does R v Adam relate to hearsay evidence?
The term ‘fresh’ in the memory of the maker is Not limited to hours or days. Flexibility is appropriate. And 7 weeks is not seen as outside fresh memory.
How does R v GRAHAM relate to hearsay evidence?
The term ‘fresh’ in the memory of the maker; is a question of degree, normally hours or days. Not years.
