Unit 14 Hearsay

Question 1

S114(1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if—

Answer 1

a. any statutory exceptions apply

b. any rule of law preserved by section 118 makes it admissible (i.e. previous common law exceptions),

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 (this is s. 114(d))

Question 2

What is hearsay evidence?

Answer 2

Second-hand account of relevant matters which seeks to establish the truth of the matter it states

E.g.
- Stated by a person to whom absent W has spoken
- Written statement of absent W
- Given in form of a doc or record created by absent W

Question 3

Can evidence adduced by P be hearsay? Can evidence adduced by both D be hearsay?

Answer 3

Yes to both - it doesn’t matter which of them adduces it, it can be hearsay either way

Question 4

Can both docs and oral statements be hearsay?

Answer 4

Yes

Question 5

Does hearsay cover only statements made in anticipation of trial?

Answer 5

No! Covers all statements

Question 6

Can a statement made by a witness outside of giving evidence in court be hearsay?

Answer 6

Yes

Question 7

Does the reliability of a statement prevent it from being hearsay?

Answer 7

No - even reliable statements can be hearsay

Question 8

What should the court take into consideration in considering the interests of justice under s114(1)(d)

Answer 8

a. how much probative value the statement has (assuming it to be true) in relation to a matter in issue in the proceedings, or how valuable it is for the understanding of other evidence in the case;

b. what other evidence has been, or can be, given on the matter or evidence mentioned in paragraph (a);

c. how important the matter or evidence mentioned in paragraph (a) is in the context of the case as a whole;

d. the circumstances in which the statement was made;

e. how reliable the maker of the statement appears to be;

f. how reliable the evidence of the making of the statement appears to be;

g. whether oral evidence of the matter stated can be given and, if not, why it cannot;

h. the amount of difficulty involved in challenging the statement;

i. the extent to which that difficulty would be likely to prejudice the party facing it.

Question 9

Can Hearsay evidence still be excluded in the usual ways?

Answer 9

Yes, if applicable. (s114(3) Nothing in this Chapter affects the exclusion of evidence of a statement on grounds other than the fact that it is a statement not made in oral evidence in the proceedings.)

Question 10

How is ‘statement’ defined and in which provision can the definition be found?

Answer 10

S. 115

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.

Question 11

Are all out of court statements hearsay such that they are only admissible if one of the gateways applies?

Answer 11

No by virtue of s 115 the purpose, or one of the purposes, of the person making the statement must appear to the court to have been—

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

If the statement did not have this purpose it is admissible provided it is relevant (just like any other evidence).

Question 12

What is the rule in s.116?

Answer 12

First-hand hearsay statement (ie the maker of the hearsay statement was stating things personally perceived by them in the statement - in other words, if the W were giving oral evidence it wouldn’t be hearsay if they made the same statement) is admissible as evidence of any matter stated if:

(1) it would be admissible if it were given in oral evidence by W,
-> E.g. excludes bad character evidence inadmissible under Part 11

(2) relevant person is identified (cannot apply to anon Ws) and

(3) the relevant person:

(a) dead
(b) unfit to be a W b/c of bodily/mental condition
(c) outside the UK and not reasonably practicable to secure attendance
(d) cannot be found (despite such steps taken as reasonably practicable)
(e) does not give evidence through fear

But not if any of these circumstances are caused by person attempting to adduce evidence

Question 13

What does “fear” mean in s. 116?

Answer 13

It is one of the legitimate reasons why the witness might not appear in court

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.

Question 14

If a person seeks to adduce hearsay evidence under s.116 and relies on the W being afraid, what other requirement must be satisfied (in addition to the normal ones that apply to all reasons for absence under s. 116)?

Answer 14

116 (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—

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 (c. 23) (special measures for the giving of evidence by fearful witnesses etc) could be made in relation to the relevant person (n.b. the name of this statute is slightly misleading - it’s not just about young ppl. S. 19 applies to all of the categories of ppl we’ve seen who might be able to get special measures), and

d. to any other relevant circumstances.

Question 15

When is a business document admissible as Hearsay evidence? In which provision is this rule found?

Answer 15

S117

A statement contained in a doc is admissible if:

(1) it would be admissible as oral evidence

(2) the doc was created/received by a person in the course of their business / holding of office

(3) the person who supplied the info in the statement (relevant person) had or may reasonably be supposed to have had personal knowledge of the matter and

(4) each person (if any) between relevant person and creator of document received the info in the course of business / holding of office (basically, if the info was passed through a chain of people before reaching the person who created the doc, all of these people must have been acting in the course of their business/trade)

N.B. just because the section provides for the possibility that the maker of doc is not the same as the person who provided the info does NOT mean that s. 117 can only apply where these are separate people (there could be only one person).

Question 16

What additional requirements must be satisfied for a document to be admissible under s.117 if the document was prepared for the purposes of pending or contemplated criminal proceedings, or for a criminal investigation?

Answer 16

(1) any one of the 5 s.116 conditions applies to the relevant person; or

(2) relevant person (i.e. the person who supplied the information) cannot reasonably be expected to have any recollection of matters dealt with in the statement (due to length of time and otherwise)

Basically what this means is that in these cases there must be a good reason why the person is not giving oral evidence instead

Question 17

Does the court have a power to disallow documentary evidence under s. 117? If so, on what grounds?

Answer 17

S117(6)

The court can make a direction that the evidence should be inadmissible, if it is satisfied that the statement’s reliability as evidence for the purpose for which it is tendered is doubtful in view of

a. its contents,

b. the source of the information contained in it,

c. the way in which or the circumstances in which the information was supplied or received, or

d. the way in which or the circumstances in which the document concerned was created or received.

Question 18

Under s118 what common law categories of admissibility are protected?

Answer 18

• Public information
• Reputation as to character
• Reputation or family tradition
• Res gestae
• Confessions
• Admissions by agents
• Common enterprise
• Expert evidence

Question 19

What does it mean under s118 that Public information is preserved in admissibility of hearsay?

Answer 19

118(1) Any rule of law under which in criminal proceedings—

a. published works dealing with matters of a public nature (such as histories, scientific works, dictionaries and maps) are admissible as evidence of facts of a public nature stated in them,
b. public documents (such as public registers, and returns made under public authority with respect to matters of public interest) are admissible as evidence of facts stated in them,
c. records (such as the records of certain courts, treaties, Crown grants, pardons and commissions) are admissible as evidence of facts stated in them, or
d. evidence relating to a person’s age or date or place of birth may be given by a person without personal knowledge of the matter.

Question 20

What does it mean under s118 that Reputation as to character is preserved in admissibility of hearsay?

Answer 20

118(2) Any rule of law under which in criminal proceedings evidence of a person’s reputation is admissible for the purpose of proving his good or bad character.
Note: The rule is preserved only so far as it allows the court to treat such evidence as proving the matter concerned.

Question 21

What does it mean under s118 that Reputation or family tradition is preserved in admissibility of hearsay?

Answer 21

118(3) Any rule of law under which in criminal proceedings evidence of reputation or family tradition is admissible for the purpose of proving or disproving—
a) pedigree or the existence of a marriage,
b) the existence of any public or general right, or
c) the identity of any person or thing.
Note: The rule is preserved only so far as it allows the court to treat such evidence as proving or disproving the matter concerned.

Question 22

What does it mean under s118 that Res Gestae is preserved in admissibility of hearsay?

Answer 22

S118(4) Any rule of law under which in criminal proceedings a statement is admissible as evidence of any matter stated if—

a. the statement was made by a person so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded,

b. the statement accompanied an act which can be properly evaluated as evidence only if considered in conjunction with the statement, or

c. the statement relates to a physical sensation or a mental state (such as intention or emotion).

Question 23

What does it mean under s118 that “confessions” is preserved in admissibility of hearsay?

Answer 23

118(5) Any rule of law relating to the admissibility of confessions or mixed statements in criminal proceedings.

Question 24

What does it mean under s118 that Admissions by agents is preserved in admissibility of hearsay?

Answer 24

S118(6) Any rule of law under which in criminal proceedings—

a. an admission made by an agent of a defendant is admissible against the defendant as evidence of any matter stated, or
b. a statement made by a person to whom a defendant refers a person for information is admissible against the defendant as evidence of any matter stated.

Question 25

What does it mean under s118 that “Common Enterprise” is preserved in admissibility of hearsay?

Answer 25

S118(7) Any rule of law under which in criminal proceedings a statement made by a party to a common enterprise is admissible against another party to the enterprise as evidence of any matter stated.

Question 26

What does it mean under s118 that Expert Evidence is preserved in admissibility of hearsay?

Answer 26

S118(8) Any rule of law under which in criminal proceedings an expert witness may draw on the body of expertise relevant to his field.

Question 27

Is a witnesses previous consistent statement hearsay?

Answer 27

Not if it is tendered as evidence of consistency only (rather than as evidence of the matter stated).

In many cases the use of these statements will be prohibited by the rule against self-serving statements.

Question 28

Is a witnesses previous inconsistent statement hearsay?

Answer 28

Not if it is tendered as evidence of inconsistency only (rather than as evidence of the matter stated).

Under s. 119 it may also be evidence of the matter stated if properly proved (the section and it’s details aren’t on the syllabus).

Question 29

What is multiple hearsay?

Answer 29

Hearsay statement to prove fact that another hearsay statement was made (e.g. ‘X said that Y said that…’)

Question 30

What are the rules regarding the admissibility of multiple hearsay?

Answer 30

Rule = generally not admissible unless:

(1) either statement (hearsay, or hearsay of that hearsay) is admissible under s. 117 (business docs), 119 (inconsistent statements) or 120 (previous W statements)

(2) all parties agree, or

(3) value of the evidence is so high that the interests of justice require the later statement to be admissible for that purpose (safety valve)

Result → Multiple hearsay is not admissible under s.116 or any common law exception unless interests of justice

Question 31

What are the two powers available to the court to regulate admissible hearsay?

Answer 31

(1) Court’s power to refuse to admit unconvincing and superfluous hearsay

(2) Power to stop trial where the case is based on hearsay

Question 32

Under what circumstances may the court refuse to admit hearsay on the basis that it is ‘unconvincing and superfluous’?

Answer 32

If (taking into account the value of the evidence):

(1) it would result in undue waste of time (or other reason) and

(2) that substantially outweighs case for admitting it

Question 33

Can confessions be used in evidence of a co-accused?

Answer 33

In any proceedings a confession made by an accused person may be given in evidence for another person charged in the same proceedings (a co-accused) in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section.
Unless it is represented to the court that the confession was or may have been obtained by oppression etc, then the court will not allow it, notwithstanding that it may be true (i.e. if D’s confession was held to be inadmissible under s. 78, then it can still be used against co-A, but not if it was held to be inadmissible under s. 76).

Question 34

Is mechanically produced evidence hearsay?

Answer 34

Purely mechanical generation of image/video/recording (e.g. CCTV) = not hearsay and can be shown to jury. Hearsay must be made by a person.

BUT a W who has seen image/video/recording can give evidence of what he saw - not hearsay.

However, image generated by human agency (e.g. sketch, photofit, pictorial form) is a ‘statement’ for the purposes of the hearsay rule.

Question 35

Can a sketch be regarded as a statement for the purposes of hearsay?

Answer 35

Yes. Section 115(1) makes it clear that an image generated by human agency such as a representation in a ‘sketch, photofit or other pictorial form’ is a ‘statement’ for the purposes of the hearsay rule.

Question 36

Is labelling products hearsay evidence of matters stated?

Answer 36

Yes. 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.
The same result follows even where the information is indelibly stamped into the goods. Similarly, information stamped on to a document is hearsay evidence of the matters stated. In many instances the evidence is likely to be perfectly reliable, and admissible under the widely-drawn exception for business documents in s. 117, but the hearsay point should still be taken to ensure that the dangers can be properly assessed and that hearsay is not ‘nodded through.’

Question 37

What is the three-stage test for ascertaining whether communications are hearsay?

Answer 37

1. Ascertain the matter sought to be proved. (concerned only 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.

Question 38

Can text messages be hearsay?

Answer 38

Yes but, messages cannot be hearsay if they are not trying to convince someone of something – e.g. text messages following a rape.
In Andrade [2015], the complainant, shortly after an alleged rape by A, received two text messages from D, an acquaintance who, according to the complainant, had aided A to commit the offence. The messages read ‘Sorry about that’ and ‘RU mad at me?’ The CoA did not actually decide whether the texts were hearsay, BUT had it been necessary to decide the point, it would seem that neither text is hearsay, D’s purpose being to apologise for something that both he and the complainant know to have happened (inferentially the rape). As it is the rape that is the matter in issue, the absence of any purpose on D’s part to cause the complainant to believe that it occurred prevents the evidence from being hearsay.

Question 39

Is a diary entry admissible as hearsay?

Answer 39

No, because it is not intended for another to read. Exceptions have been made where diaries are shared for reason of record.

Question 40

What are the rules if evidence has more than one purpose? (i.e. one being hearsay)

Answer 40

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.

Question 41

Is evidence relevant to state of mind admissible as hearsay or in its own right?

Answer 41

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). A statement from which a state of mind may be inferred, on the other hand, may fall outside the definition of ‘matter stated’ in s. 115(3) and be classified as original evidence. This approach is consistent with authorities at common law.

Question 42

Are lies Hearsay?

Answer 42

No. A statement that is demonstrably false may show a consciousness of guilt. Under the CJA 2003, it would seem that a lie cannot be hearsay evidence of a matter that it is not intended to assert. In Minchin [2013] the Court of Appeal accepted that a statement containing the details of an alibi alleged to be false could be tendered by the prosecution without breaching the hearsay rule. ‘What mattered was the fact that it was said.’

Question 43

What are the additional safeguards for hearsay evidence?

Answer 43

They are s. 124, which provides for the testing of credibility where the maker of a hearsay statement does not attend to testify;

s. 125, which deals with the power to stop a case where evidence is unconvincing;

and s. 126, which provides a specific discretion to exclude hearsay evidence that is in addition to the court’s existing range of discretions at common law and under the PACE 1984, s. 78.

In addition, all prosecution evidence is subject to the court’s general powers of discretionary exclusion, of which the PACE 1984, s. 78, is the most important.

The judge is also obliged to direct the jury, where hearsay evidence is received, as to the dangers of acting upon it.

Question 44

What is the statutory framework for hearsay evidence?

Answer 44

The statutory framework can therefore usefully be considered in these successive steps.

a. Is there a specific statutory justification (or ‘gateway’) permitting the admission of hearsay evidence (ss. 116 to 118)?
b. What material is there which can help to test or assess the hearsay (s. 124)?
c. Is there a specific ‘interests of justice’ test at the admissibility stage?
d. If there is no other justification or gateway, should the evidence nevertheless be considered for admission on the grounds that admission is, despite the difficulties, in the interests of justice (s. 114(1)(d))?
e. Even if prima facie admissible, ought the evidence to be ruled inadmissible (PACE 1984, s. 78, and/or CJA 2003, s. 126)? 
f. If the evidence is admitted, should the case subsequently be stopped under s. 125 ?

Question 45

Where the judge permits hearsay evidence, when should such a ruling be given?

Answer 45

Where a judge permits hearsay evidence to be adduced, the detail behind the ruling should be given before speeches, so that counsel may tailor their speeches to the ruling and, where appropriate, make submissions in respect of the content of the proposed hearsay direction in light of the ruling. The direction should be given before the evidence is heard, and repeated in the summing-up.

Question 46

Does s116 apply to statements the maker has been told?

Answer 46

No. s116 (unavailable witness) only applies too statements based on personal knowledge. Multiple hearsay may be admitted under 121 (or 117 if documentary).

Question 47

If evidence is inadmissible for one reason (say bad character) can it be admitted if it satisfied the hearsay gateway?

Answer 47

No. The requirement that the oral evidence of the person who made the statement would have been admissible as evidence of the matter (s. 116(1)(a), also true of s. 117) 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)

Question 48

Can s116 apply to anonymous witnesses?

Answer 48

No. The witness must be identifiable, equally so the other party have the right to cross examination or invoke s124 (question credibility)

Question 49

Will absence abroad satisfy an absent witness under s116(c)?

Answer 49

Absence abroad will satisfy the condition in s. 116(2)(c) ‘only if it is not reasonably practicable to bring the witness to court, either in person or by video link’.

Question 50

If a witness is “lost” what steps does the court expect to be taken?

Answer 50

If the witness is lost, all reasonably practicable steps must have been taken to get him before the court: this will include not only looking for him if he disappears but also keeping in touch with him to avoid him disappearing.

Question 51

To rely on s116(2)(e) must it be the accused that the witness is in fear of?

Answer 51

No. Can be a co-accused, other witness etc. However, a causal link between the fear and the failure or refusal to give evidence must be proved, and how it is proved depends upon the background together with the history and circumstances of the particular case. While it is in many cases possible for the jury to be told the reasons for a witness’s absence, this cannot generally be done in cases involving fear.

Question 52

If a witness is absent due to intimidation by or on behalf of the accused, can the evidence be admitted as hearsay or does this affect the fairness of the trial?

Answer 52

If the reason for the witness’s failure to give evidence in person is that the witness was intimidated by or on behalf of the accused, who then contests the admissibility of the statement for the prosecution, the accused is in a weak position to claim infringement of the right to a fair trial. 
To allow the accused to engender the fear and then to benefit from it would be incompatible with the rights of victims and ‘no court could be expected to allow the integrity of its proceedings to be subverted in this way’.
But the problem posed by intimidation of witnesses, for example by organised criminals, does not provide a licence to prosecutors to resort to proof by hearsay, same way and to the same extent as in other cases where a witness is in fear.

Question 53

Why are business documents admissible as hearsay?

Answer 53

(Horncastle) ‘Business records are made admissible … because, in the ordinary way, they are compiled by people who are disinterested and, in the ordinary course of events, such statements are likely to be accurate; they are therefore admissible as evidence because prima facie they are reliable’

Question 54

Is the bad character of an absent witness a reason to exclude their evidence?

Answer 54

No. The bad character of an absent witness is not necessarily a reason for exclusion, even if it provides a basis for an inference of preparedness to lie, provided that the evidence available to the jury is such that they can properly assess the risk of the witness having done so.

Question 55

What does type 1 res gestae admissibility depend on?

Answer 55

A ‘close and intimate connection’ between the exciting events in issue and the making of the statement, the theory being that the spontaneity of the utterance is some guarantee against concoction.

Question 56

What must the judge ask themselves if deciding on res gestae type 1 for the admissibility of evidence?

Answer 56

(1) Primary Q: can the possibility of concoction or distortion be disregarded?

(2) Consider the circumstances in which the statement was made:

• Event must be so unusual, startling or dramatic that dominated mind of V and statement was an instinctive reaction
• Must be made in approximate but not exact contemporaneity

(3) Sufficiently ‘spontaneous’ → must be so closely associated with the event that the mind of the declarant was still dominated by the event

• Fact that the statement was made in answer to a Q is but one factor to consider under this heading

(4) Supporting evidence in case may relate to possibility of concoction or distortion (e.g. demonstrating a motive of malice against D)

(5) Consider the possibility of error

• If ordinary fallibility of human recollection → goes to weight (jury) and not admissibility
• However, special features:
  E.g. deceased very drunk
  E.g. declarant had defective eyesight

NB: one admissible res gestae statement can come from two Ws (one who made an emergency call having witnessed a stabbing, who read a car-registration plate written by another, reacting spontaneously to same event)

Question 57

Upon admissibility of a res gestae “spontaneous” statement, what direction should be given to the jury?

Answer 57

Where a ‘spontaneous’ statement has been admitted in evidence as part of the res gestae, the judge must make it clear to the jury:

a. that it is for them to decide what was said and to be sure that the witnesses were not mistaken in what they believed had been said to them;

b. that ‘they must be satisfied that the declarant did not concoct or distort to his advantage or to the disadvantage of the accused the statement relied upon and where there is material to raise the issue, that he was not activated by any malice or ill-will’;

c. where there are special features that bear on the possibility of mistake, then the jury’s attention must be invited to those matters.

Question 58

Does the common law preservation of admissibility of Body of Expertise mean that expert evidence is not subject to the hearsay rule?

Answer 58

Technically speaking, where an expert draws on the work of others in order to form an opinion, an element of hearsay is necessarily involved. Whether this is objectionable or not depends on the nature of the work referred to. In Abadom [1983], it was accepted that ‘the process of taking account of information stemming from the work of others in the same field is an essential ingredient of the nature of expert evidence’, and as such is not subject to the hearsay rule.
Where, however, an expert relies on the existence or non-existence of some fact which is basic to the question on which the expert is asked to give an opinion, that fact must be proved by admissible evidence.

Question 59

What is the effect of s. 124?

Answer 59

Provides rules for the opposing party to introduce evidence to attack the credibility of hearsay evidence.

In short: the opposing party can put into evidence anything that they could have put to W in CE in order to challenge their credibility
- Even if W’s answers to those things in CE would have been final
- Even if it tends to prove W made an inconsistent statement

Court may permit other party to give rebutting evidence.

S. 124 Applies only if the maker of the statement does not give oral evidence in connection with the matter

Question 60

When is a notice required for hearsay evidence to be admitted?

Answer 60

if hearsay admitted under:

1. S.114(1)(d) – interests of justice
2. S.116 – unavailable W
3. S.117(1)(c) – business doc only for criminal proceedings
4. S.121 – multiple hearsay

• NB: all other forms of hearsay, including common law exceptions (s.118) and docs under s.117 not for criminal proceedings do not require notice

Question 61

What hearsay gateways do not require notice?

Answer 61

Other forms of hearsay, including common-law exceptions and documents admissible under s. 117 other than those prepared specifically for criminal proceedings, do not require notice.
(only 114(1)(d), 116 and 117(1)(c) require notice)

Question 62

Can the court give leave to admit hearsay evidence where notice has not been served?

Answer 62

The court may give leave to admit hearsay where notice has not been served, and; the party entitled to notice may also waive the entitlement. (The court is not obliged to give leave to a co-accused who has failed to comply with the notice procedure)

Question 63

What are the rules regarding the notice for hearsay evidence?

Answer 63

(1) Must be served on court and other parties
-> Though party can waive entitlement

(2) Must include:
(i) Identify the hearsay evidence
(ii) Set out facts on which party relies to make admissible
(iii) Explain how party will prove those facts if disputed
(iv) Explain why evidence admissible

(3) Evidence must be attached to notice (unless already served)

Time limits for service:

• CC – 10 business days after D pleads NG
• Mags – 20 business days after D pleads NG

Question 64

What are the rules regarding an application to oppose the admission of hearsay evidence?

Answer 64

(1) Must be served on court and all parties

(2) Must include:
- Which facts are disputed
- Why evidence not admissible
- Any other objection

Time limit:
(i) As soon as reasonably practicable and (ii) not more than 10 business days after the latest of:
1. Service of notice
2. Service of objected evidence
3. D pleads NG

NB: if nobody opposes, court must treat evidence as if admissible by agreement

Question 65

What are the court’s powers in relation to notices to adduce hearsay evidence?

Answer 65

o May adjourn/discharge/vary
o Dispense w/ notice / allow different form
o Shorten/extend time periods

Question 66

What are the rules governing the determination of a hearsay application?

Answer 66

o Court may determine with or without hearing, in public or private

o But party who served the hearsay notice must be present or have had a reasonable opportunity to respond

Question 67

Can a party choose to rely on the ‘interests of justice’ gateway?

Answer 67

No! It’s a last resort

It should not be used to circumvent requirements of other gateways higher in hierarchy

Question 68

Are previously consistent statements hearsay? Are previously inconsistent statements hearsay?

Answer 68

1. A previously consistent statement is not hearsay if it is tendered only to show consistency. However, it is usually still inadmissible by virtue of the rule against self-serving statements (unless one of the exceptions applies).
2. The same is true of previously inconsistent statements. They are not hearsay if tendered only to show inconsistency. Previously inconsistent statements are admissible as proof of any matter stated in them.