W20 - Revision

Question 1

Hearsay

2 questions to deal with every time a matter of hearsay arises:

Answer 1

1. Is it hearsay?
2. If so, is it rendered admissible by one of the exceptions to the rule?

Generally hearsay is inadmissible
* inferior to first hand evidence
* second hand, second best
* cannot be tested
* unreliable
* generally evidence of the truth of a matter should be given in person

Question 2

Limitations of hearsay

Answer 2

1. no opportunity to see the demeanour of the person who made the statement
2. not made on oath
3. no opportunity to see the witness’ account tested under cross-examination
   i.e. as to accuracy, truthfulness, ambiguity or misperception

Question 3

Hearsay evidence
s.114(1) CJA 2003

Answer 3

• General rule = hearsay is **inadmissible **
• S.114(1) provides that hearsay is admissible if, but only if, it falls within one of the exceptions:

a. any provision of this Chapter or any other statutory provision makes it admissible

b. any rule of law preserved by s.118 makes it admissble

c. all the 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.

Question 4

s.115 CJA 2003

Statements and matters stated

Answer 4

S.115

• A statement is any representation of fact or opinion made by a person by whatever means; it includes representation made in a sketch, photofit or other pictoral form.
• A matter stated is one to which this Chapter applies if (and only if) the purpose, or one of the purposes, of the person making the statement appears to the court to have been –

1. to cause another person to believe the matter, or
2. to cause another person to act or a machine to operate on the basis that the matter is as stated.

Question 5

R v Twist [2011]

Answer 5

• Effect of S.114(1) and S.115 taken together considered in the case of R v Twist.
• CofA reformulated the sections as a test that determines whether or not a communication is hearsay. It is in 3 parts:

1. Identify what relevant fact (matter) is sought to prove.
2. Ask whether there is a statement of that matter in the communication.

• If no, then no question of hearsay arises (whatever other matters may be contained in the communication).

3. If yes, ask whether it was one of the purposes (not necessarily the only or dominant purpose) of the maker of the communication that the recipient, or any other person, should believe that matter or act upon it as true.

• If yes = hearsay
• If no = not hearsay

NB - where there is a ‘common understanding’ between the parties to the communication (no one is trying to make anyone believe anything) = not hearsay