Unit 17&18 Hearsay Flashcards

Question

What are the rules regarding the other statements of witnesses under s120?

Answer 1

ONLY IF THE WITNESS IS CALLED TO GIVE EVIDENCE. 2.If a previous statement by the witness is admitted as evidence to rebut a suggestion that his oral evidence has been fabricated, that statement is admissible as evidence of any matter stated of which oral evidence by the witness would be admissible. 3.A statement made by the witness in a document— a. which is used by him to refresh his memory while giving evidence, b. on which he is cross-examined, and c. which as a consequence is received in evidence in the proceedings, is admissible as evidence of any matter stated of which oral evidence by him would be admissible. 4.A previous statement by the witness is admissible as evidence of any matter stated of which oral evidence by him would be admissible, if— a. any of the following three conditions is satisfied, and b. while giving evidence the witness indicates that to the best of his belief he made the statement, and that to the best of his belief it states the truth. 5.The first condition is that the statement identifies or describes a person, object or place. 6.The second condition is that the statement was made by the witness when the matters stated were fresh in his memory but he does not remember them, and cannot reasonably be expected to remember them, well enough to give oral evidence of them in the proceedings. 7.The third condition is that— a. the witness claims to be a person against whom an offence has been committed, b. the offence is one to which the proceedings relate, c. the statement consists of a complaint made by the witness (whether to a person in authority or not) about conduct which would, if proved, constitute the offence or part of the offence, d. [omitted] e. the complaint was not made as a result of a threat or a promise, and f. before the statement is adduced the witness gives oral evidence in connection with its subject matter. 8.For the purposes of subsection (7) the fact that the complaint was elicited (for example, by a leading question) is irrelevant unless a threat or a promise was involved.

Answer 2

(1) A hearsay statement is not admissible to prove the fact that an earlier hearsay statement was made unless— a. either of the statements is admissible under section 117, 119 or 120, b. all parties to the proceedings so agree, or c. the court is satisfied that the value of the evidence in question, taking into account how reliable the statements appear to be, is so high that the interests of justice require the later statement to be admissible for that purpose. (2) In this section “hearsay statement” means a statement, not made in oral evidence, that is relied on as evidence of a matter stated in it.

Answer 3

S122(2)the exhibit must not accompany the jury when they retire to consider their verdict unless— a. the court considers it appropriate, or b. all the parties to the proceedings agree that it should accompany the jury.

Answer 4

Yes, under s123. 1. Nothing in section 116, 119 or 120 makes a statement admissible as evidence if it was made by a person who did not have the required capability at the time when he made the statement. 2. Nothing in section 117 makes a statement admissible as evidence if any person who, in order for the requirements of section 117(2) to be satisfied, must at any time have supplied or received the information concerned or created or received the document or part concerned— a. did not have the required capability at that time, or b. cannot be identified but cannot reasonably be assumed to have had the required capability at that time.

Answer 5

(3) For the purposes of this section a person has the required capability if he is capable of— a. understanding questions put to him about the matters stated, and b. giving answers to such questions which can be understood.

Answer 6

(4) Where, by reason of this section, there is an issue as to whether a person had the required capability when he made a statement— a. proceedings held for the determination of the issue must take place in the absence of the jury (if there is one); b. in determining the issue, the court may receive expert evidence and evidence from any person to whom the statement in question was made; c. the burden of proof on the issue lies on the party seeking to adduce the statement, and the standard of proof is the balance of probabilities.

Answer 7

125(1)If on a defendant’s trial before a judge and jury for an offence the court is satisfied at any time after the close of the case for the prosecution that— a. the case against the defendant is based wholly or partly on a statement not made in oral evidence in the proceedings, and b. the evidence provided by the statement is so unconvincing that, considering its importance to the case against the defendant, his conviction of the offence would be unsafe, the court must either direct the jury to acquit the defendant of the offence or, if it considers that there ought to be a retrial, discharge the jury.

Answer 8

126(1)In criminal proceedings the court may refuse to admit a statement as evidence of a matter stated if— a. the statement was made otherwise than in oral evidence in the proceedings, and b. the court is satisfied that the case for excluding the statement, taking account of the danger that to admit it would result in undue waste of time, substantially outweighs the case for admitting it, taking account of the value of the evidence. (also powers such as s78 available)

Answer 9

127(2) In evidence given in the proceedings the expert may base an opinion or inference on the statement. 127(3) If evidence based on the statement is given, the statement is to be treated as evidence of what it states.

Answer 10

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.

Answer 11

129(1) Where a representation of any fact— a. is made otherwise than by a person, but b. depends for its accuracy on information supplied (directly or indirectly) by a person, the representation is not admissible in criminal proceedings as evidence of the fact unless it is proved that the information was accurate. 129(2) Subsection (1) does not affect the operation of the presumption that a mechanical device has been properly set or calibrated.

Answer 12

The hearsay rule is far-reaching, applying to both prosecution and defence. It covers not only the statements of non-witnesses, but also past statements made by a witness who is called to give oral evidence and who could therefore be cross-examined about what the witness has said previously (Horncastle). It applies to all statements, not simply to those made in anticipation of the trial itself and includes documents as well as oral statements. It follows that the rule catches some evidence, such as records of routine business dealings, that is intrinsically reliable, but this does not prevent it being hearsay: the reliability or otherwise of the evidence is relevant only to whether it may be received through an exception to the rule.

Answer 13

Hearsay must be made by a person, but juries can still see CCTV etc. Just as a video recording of the commission of an offence is admissible, so also 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'

Answer 14

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.

Answer 15

A common instance of reliance is where it is sought to establish the registration number of a car involved in an incident, and an eye-witness, A, who has seen the incident, relates the number to B, who has not. It is hearsay for B to tell the court what the number was for the purpose of proving the truth of A's statement.

Answer 16

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.'

Answer 17

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. In all the appeals heard in Twist, it could be said that there was a 'common understanding' between the parties to the communication that rendered it non-hearsay.

Answer 18

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 Court of Appeal, having allowed the appeal on other grounds, commented that it was not necessary to decide the 'difficult point' of whether the texts were hearsay, and, if so, whether they were admissible under the res gestae provisions of s. 118, because, whatever their proper classification, the texts should have been excluded under the PACE 1984, s. 78. There would have been difficulty for the defence in calling D as a witness and, in his absence, there was no realistic way for A to challenge the interpretation that D was apologising for colluding in the rape committed by A. 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.

Answer 19

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

Answer 20

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.

Answer 21

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.

Answer 22

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.'

Answer 23

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.

Answer 24

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 ?

Answer 25

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.

Answer 26

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

Answer 27

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 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)

Answer 28

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

Answer 29

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'.

Answer 30

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.

Answer 31

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.

Answer 32

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.

Answer 33

(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'

Answer 34

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.

Answer 35

In AC [2014], the account of a child victim of rape was presented in hearsay form where she was too traumatised to testify. The tools to test the reliability of her description included the cross-examination of her mother, who had supported her through the disclosure process, and there was supporting evidence of DNA and indecent images of the child on AC's computer.

Answer 36

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.

Answer 37

1. The primary question which the judge must ask himself is — can the possibility of concoction or distortion be disregarded? 2. To answer that question the judge must first consider the circumstances in which the particular statement was made, in order to satisfy himself that the event was so unusual or startling or dramatic as to dominate the thoughts of the victim, so that his utterance was an instinctive reaction to that event, thus giving no real opportunity for reasoned reflection. In such a situation the judge would be entitled to conclude that the involvement or the pressure of the event would exclude the possibility of concoction or distortion, providing that the statement was made in conditions of approximate but not exact contemporaneity. 3. In order for the statement to be sufficiently 'spontaneous' it must be so closely associated with the event which has excited the statement, that it can be fairly stated that the mind of the declarant was still dominated by the event. Thus the judge must be satisfied that the event which provided the trigger mechanism for the statement, was still operative. The fact that the statement was made in answer to a question is but one factor to consider under this heading. 4. Quite apart from the time factor, there may be special features in the case, which relate to the possibility of concoction or distortion. In the instant appeal the defence relied on evidence to support the contention that the deceased had a motive of his own to fabricate or concoct, namely, a malice which resided in him against O'Neill and the appellant because, so he believed, O'Neill had attacked and damaged his house and was accompanied by the appellant, who ran away on a previous occasion. The judge must be satisfied that the circumstances were such that having regard to the special feature of malice, there was no possibility of any concoction or distortion to the advantage of the maker or the disadvantage of the accused. 5. As to the possibility of error in the facts narrated in the statement, if only the ordinary fallibility of human recollection is relied upon, this goes to the weight to be attached to and not the admissibility of the statement and is therefore a matter for the jury. However, here again there may be special features that may give rise to the possibility of error. In the instant case there was evidence that the deceased had drunk to excess, well over double the permitted limit for driving a motor car. Another example would be where the identification was made in circumstances of particular difficulty or where the declarant suffered from defective eyesight. In such circumstances the trial judge must consider whether he can exclude the possibility of error.

Answer 38

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.

Answer 39

In Mills v The Queen, the Privy Council rejected an argument that a specific direction must always be given as to the risk of mistaken identification by a dying man in a res gestae statement. The jury in that case had been adequately directed about the risks of mistaken identification in relation to the evidence of other witnesses, and fairness did not require a repetition.

Answer 40

The rule that the acts and statements of one party to a common purpose may be evidence against another is particularly associated with charges of conspiracy. However, it is not confined to such cases, and applies to other offences where complicity is alleged. Thus, in Jessop (1877) 16 Cox CC 204, for example, D was charged with the murder of V, with whom he had entered into a suicide pact to die by taking poison. The plan miscarried and D survived. Field J held that evidence of the purchase of poison by V, being an act done in furtherance of the common purpose, was admissible against D. Another illustration is Jones [1997] 2 Cr App R 119, in which it was held that the rule applied to a joint enterprise to evade the prohibition on the importation of drugs, despite the fact that no charge of conspiracy was brought.

Answer 41

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.

Answer 42

121 or 117. Under this provision, multiple hearsay (such as 'A told me that B told him that D shot V') is not admissible even if both the statement by A and the statement by B fit within one or more of the various exceptions to the hearsay rule (e.g., B's statement is a spontaneous statement made as part of the res gestae, and A's statement is admissible under s. 116 because A has died since making it). The only exceptions to this principle are where one of the statements is admissible as a business document (s117) or a previous statement by a witness in the case, or where the court is so convinced by the value of the evidence that it can invoke the special 'safety valve' in s. 121(1)(c).

Answer 43

The opposing party is entitled to put in evidence anything which would have been admissible if the witness had been present, but in addition, and in order to counterbalance the absence of cross-examination, may also with the leave of the court give evidence of matters as to which the witness's answers would have been final had the witness given evidence in person

Answer 44

Appears to have general effect.

Answer 45

Section 126 confers a power on any court trying a criminal case to exclude hearsay evidence where, 'taking account of the danger that to admit it would result in undue waste of time', the case for exclusion outweighs the case for admission. Section 126 operates without prejudice to the common-law power to exclude evidence on the ground that its prejudicial effect outweighs its probative value, or the general discretion to exclude prosecution evidence under the PACE 1984, s. 78.

Answer 46

The Court also indicated a 'strong preliminary view' that s. 126 is not limited to cases in which the reception of the hearsay would generate undue waste of time on satellite issues. Rather it creates a general discretion under which a court can exclude evidence that 'lacks significant probative value'.

Answer 47

Galbraith does not require the judge to look at the reliability of the evidence? A judge should have uppermost in his or her mind the question of whether an untested hearsay statement has been shown to be reliable in light of all the other evidence adduced. If not, and the statement is 'part of the central corpus of evidence without which the case on the relevant count cannot proceed', the statement is 'almost bound to be “unconvincing” such that a conviction based on it will be unsafe'. The difference between cases subject to s. 125 and the general principles on submission of no case to answer contained in Galbraith, where it is no part of the function of the judge to assess the reliability of the evidence. In hearsay cases the judge is not only entitled but is required to see whether the hearsay evidence is so unconvincing that any conviction would be unsafe. 'That means looking at its strengths and weaknesses, at the tools available to the jury for testing it, and at its importance to the case as a whole.’

Answer 48

A party proposing to tender a hearsay statement in evidence under the CJA 2003, ss. 114(1)(d) (evidence admissible in the interests of justice), 116 (evidence where a witness is unavailable), 117(1)(c) (evidence in a statement prepared for the purposes of criminal proceedings) and 121 (multiple hearsay).

Answer 49

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. (114(1)(d), 116 and 117(1)(c) require notice)

Answer 50

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)