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RAH

Rule against hearsay
by

Ian Wilkinson

on 23 March 2011

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Transcript of RAH

'Things Happening' - 'Events Occuring' No Concoction or Distortion * Tobi (87) - If words 20 minutes past time of event then NOT RGS * Human Falibility goes to Weight (W) NOT Relevance (R). CONTRAST WITH * Carnal (95) - Tobi (87) is not conclusive. * Anderson (97) - Ackner LJ. primary Q ... Is there any distortion or concoction? Are the events so startling so as to dominate thoughts? Is the response spontaneous or instinctive with no time for reasoning? Is there a special feature eg. malice? * RGS can be Evidence in Chief (EVinC) but might be contrary to PACE 1978 s.78 * Is Admissible (A) to explaining the act. Statement at the Time of the Act Wright (1837) - Must be Relevant to facts in issue Bliss (1837) - Declaration that act of planting tree marked a boundary was NOT ADMISSIBLE as EV of planting nor of the boundary. Statement as to Physical Sensation is NOT ADMISSIBLE to Show Cause * Glouster (1888) - Statement of woman dying from unlawful abortion naming the person who did the operation is NOT ADMISSIBLE but must be a description of the symptom not the cause. Black (27) - Not required to be contemporaneous. 'I felt sick yesterday' is ADMISSIBLE. Statement About Intention or Emotion * Dixon (1869) - 'I know what I have done and I am not sorry for it' is ADMISSIBLE. * Vincent (1846) - Superintendent of Police testified people had complained about being alarmed by what was said at a meeting. This was ADMISSIBLE for charge of incitment to violence. Not crucial but helpful to show that citizens apprehended fear of violence. * Edwards (1872) - Asked by neighbour to keep knife and axe by as 'husband threatened me with these'. This was ADMISSIBLE. * Ball (1911) - Expression of antipathy just before victim's death is ADMISSIBLE. Buckley (1873) - Defendant threatened police officer who was later found murdered after he told Superintendent that he was going to keep an eye on the Defendant. This was ADMISSIBLE but no reason given. * Wright (1875) - Witness said victim told her she was goint to a certain address which was the Defendant's. This was NOT ADMISSIBLE because it was only intention and may not have been done. * Thompson (12) - Charged with procuring a miscarriage the Defendant wanted HEARSAY EVIDENCE (H-EV) that she intended to do it herself. This was NOT ADMISSIBLE. * Mighal (77) - Defendant charged with killing other Defendant's spouse gave a 'CUT-THROAT' defence but this was NOT ADMISSIBLE because it was not contemporaneous. * Gilfoyle (96) - Suicide note in Victim's handwritting but other HEARSAY EVIDENCE was ADMISSIBLE to say that she gave suicide notes as samples for a class she was taking and this was RELEVANT to her state of mind. * Callendar (98) - Charged with conspiracy to arson the Co-Defendant said Defendant told him the devices were duds and other witness said the same thing. This was ADMISSIBLE for Co-Defendant because it supported what was said to him but NOT ADMISSIBLE for the Defendant because it was not spontaneous. The appeal claimed that these were RGS because they were statements about his state of mind and went to explaining the RELEVANT acts. Defendant said Andrew's test of spontenaity was not the right test while Crown argued Andrew's test applied to all RGS. Court of Appeal says RGS is a single principle and the jusdge must be convinced no concoction. Better to say statements were an expression of his state of mind especially his intent which is crucial to a conspiracy charge. Cases before Andrews says spontenaity is not required for each category. Law Reform Commission also says four separate strands each with its own conditions and justifications. Reputation of Good or Bad Character * This must be strictly proven * Mental or physical handicap that would make him unfit to be a witness * Must be strictly proven * R v. Castillo (96) - The fact that is was 'possible' to bring witness was not enough to exclude HEARSAY EVIDENCE. * R. v. C. (2006) - South African resident would not return to U.K. or do video link but Court of Appeal ruled his evidence was HEARSAY EVIDENCE because police did not do enough to find out why he would not co-operate. * Factors include expense, seriousness of the crime and the importance of the information to the case at bar. * HEARSAY EVIDENCE was ADMISSIBLE with wide discretion via S. 25/26 * R v. HW&M (2001) - Fear must be at the time of testifying. * HEARSAY EVIDENCE is ADMISSIBLE if it is in the Interest of Justice. Factors include contents of the statement, fairness to the opposing party, any special measures (like YJCEA 1999 s.19 vid link) and any other relevant circumstances. * Unsure if S.2 conditions must be strictly proven. * Neil (92) - Evidence of fear which is itself hearsay is admissible. * Grier (98) - Unsworn evidence of fear from witness is admissible. * HW&M (2001) - Evidence of fear in recorded tape is admissible. * Davies ( ) - Flexible approach to be adopted. Should not call witnesses themselves because that would defeat the purpose of S.116. Caution not to accept witness fear too readily. * Not clearly defined * Law Commission wants no definition because it would help criminals. * R v. Acton (90) - Fear must be caused in relation to the staement, not required to occur after statement made or be based on reasonable grounds. Fear must be based on fear of death or injury to self or others or financial loss. Once fear established then its cause is not relevant. - the evidence is hearsay for other reasons also.
- the need for the hearsay evidence was caused by the person who wants it admitted.
- the hearsay in question is multiple hearsay
- the person from which the hearsay comes from can not be properly identified or does not have the requied mental capacity which is proven on the balance of probabilities. * These exceptions do not apply if * Roberts ( ) - General rule is no padding testimony so previous consistent statements are NOT admissible * Available for both Crown and Defence but can still be excluded via PACE 1982 S.78(1) * Previous Inconsistent Statements are admissible as evidence as truth to their contents.
Good because it solves problem when a witness will not testify because of fear.
Bad because it allows conviction without cross examination. Previous Inconsistent Statements are NOT admissible as evidence of truth of their contents. * Civil Evidence Act 1995 ss.1, 6(3)(5) previous inconsistent statements are evidence of truth to their contents. * Despite Roberts ( ) practice allows Previous 'mixed' statements (containing both admissions and denials as evidence of truth of their contents. * Pierce (79) - Two voluntary statements excluded as self-serving. Court of Appeal says these were admissible and gives summary of the law * Pearle ( ) - Statement with admission is evidence of truth of its contents but even if it is not it is still evidence of demeanor. * R v. Sharpe (88) * R v. Aziz (96) * Pre-Written Statements
* At Common Law they are evidence of truth to their contents * CJPOA 1994 S.24, 36, 37 is admissible to show the Defendant mentioned facts later relied on at trial * R v. Ali (2001) * R v. Knight (2004) * Hearsay evidence is admissible to rebut claims of a recent allegation or 'invention' only where the witness is actually on the stand but not admissible where the crown claims the hearsay evidence has been fabricated from the start. * Crown might say that witness is just 'mistaken' and not attack the credibility of the witness outright so as to not claim recent 'invention' and so therefore not admissible * R v. Ali (2001) - Court my allow re-examination about previous consistent statements but this is not evidence of the truth of their contents and goes only to credibility * As ID or Descriptive statement of person, place or thing by a witness on the stand,
* Restates Common Law rule about previous identifications * Witness must indicate that previous statement was made by him and that he then and now believes it to be true. * Where witness cannot remember and cannot be reasonably expected to remember * Witness must declare it is his statement and that he believes it to be true then and now. * Witness may utilize CJA 2003 S. 139 (1) at any stage of the procedings where his recollection may be significantly better than without the memory refreshing documents. * Original statement must be made while 'fresh' in witness mind in contrast to Common Law where statement had to be made as soon as possible. * Refresh memory documents are evidence of the truth of their contents. * Richardson (71) (64) - Refresh memory documents become an exhibit only if cross-examination goes beyond the matters originally stated. * Applies where previous consistent statement is made to a person not in authority and not as a result of a threat. * Statement must be made as soon as reasonably could be expected. * Valentine ( ) - At Common Law the statement must be made at the first reasonable opportunity. * Birks (1903) - Childhood sex assault evidence is not admissible because it was not within a reasonable time. * R v. O (1906) - Time delay between abuse and complaintant is no bar to admissibility. * Judicial discretion requirement
R v. Islam (1999) - victim statement is not independent confirmation of victim's evidence but can show victim's distress at the time.
R v. Romeo (2003)- Judicial discretion required that witness could fabricate evidence. * Witness must give oral testimony. * White (1999) - Person to whom complaint was made must also give oral testimony. * Definition - An out-of-court statement adduced as evidence of truth of its contents * Exception to the rule against hearsay via PACE 1982 s.78(1). * R v. Mason (1988) - Breach of PACE codes could mean exclusion by PACE 1982 s.76 and s.78. * No 'fruit of the tainted tree' doctrine by PACE 1982 s.76. * Exclusion by PACE 1984 s.76 can be by court on its own motion. * Confession can be admissible where it shows not truth of contents but shows how Defendant speaks. Examples of PACE 1982 s.82(1) - 'statement even part advers whether to a person in authority or not with words or otherwise. * Sharpe (1988) - Mixed statement is evidence of truth of contents. * Pierce (1979) - Crown has duty to be fair and it would be unfair to have only the adverse parts of a statement as admissible. * Storey (1968) - Crown says mixed statement really purely exculpatory and so not evidence of truth of contents but admissible as evidence of Defendant's reaction to incriminating facts. * Western (1997) - Admits fight in ally but claims self-defence and Crown can't pick and choose the parts of statement it relies on. * Garrod (1997) - Any adverse confession is 'mixed'. * Sat Bhambra (1989) - Purely exculpatory statement that is fact a lie is not a confession and so not excluded by PACE 1982 s.76. * R v. Z (2003) - Purely exculpatory statements can be used by Crown to contradict Defendant. * Hazy (200?) - Running can be a confession. * Moriarty (1870) - Attempt to persuade others to lie on the stand is a confession. * Parks ( 1976) - Accused stabbed victim when victim threated to call the police. This was seen as a confession. * Dessella (1877) - Silence in response to a face to face accusation can be a confession. * Wiedmann ( ) - Silence to letter of accusation is not a confession. * Batt (1995) - Failure to disassociate himself from statement by Co-Defendant can be confession if made in Defendant's presence. * Oppression in PACE 1984 s.76 * Defined * Fulling ( ) - Has ordinary dictionary definition. * Parks (1993) - Violence is not required. * Parker ( ) - Exercise of authority in a wrongful manner is not enough but must be harsh, cruel or unjust. * Hypothetical Test * Not of actual reliability but 'might what was said or done be likely in the circumstances to make the confession by that Defendant not reliable. * Cox ( ) - Mental handicapped person interrogated without adult admitted burglary and again later at voir dire. Appeal allowed but not a question of reliability but if breach of PACE 1984 codes was 'likely' in the circumstances to make the confession unreliable. * Goldenberg (1989) - Heroin addict in jail for weeks gives confession to get bail which was admissible because 'anything said or done' must be external to Defendant. * Walker (1998) - Mere interogation may be enough for PACE 1984 s.76 to apply. * Anderson (1993) - Use s.78 when internal condition of Defendant applies like Chronic Alcohol Syndrome. * Purely Personal Circumstances * Once considered that external factor might have caused confession even if unknown to police at the time (if known at the time then this would be clear oppression and so excluded as unreliable. * McGovern (1971) - First interogation without a lawyer taints later interogation with a lawyer. Neil (1994) - Balance factors - type and nature of breach. * Denial of Access to Lawyer as per PACE 1984 s.56(1). * Samuel (1988) - Access to lawyer is a most important fundamental right. * Alladice (1988) - Breach of code by denying lawyer but Defendant said he had no problems handling the interrogation so confession was admissible despite breach of PACE 1984 codes. * Fairness in PACE 1984 S.78 * Crown's evidence has such adverse effect on fairness that the court ought not to admit it. * Defined * Sat Bham (1989) - Evidence already admitted can not be excluded. * Walsh (1990) - 'Adverse effects must be more than just 'some'. * Conditions and Defintion * Magan (1988) & Marshall (1988) - 'Such adverse effects on fairness applies only to the actual trial. * Looseley (2001) - 'Such adverse effects on fairness' applies mainly to trial but also evidence gathering. * O'Loughlin (1987) - Applies to both Crown and Defence. Public represented by the Crown but this is misleading because the public also has an interest in a fair trial. * Brine (1992) - External trigger not required. * Wide Discretion * Samuel (1988) - General guidelines not good because cases vary widely. * Jelen (1989) - Guides not good for hard caselaw. * Sanghera (2001) - Discretion overruled only by Wednesbury principles. Not a shopping list but a perspective to get a holistic view. * Onus of Proof * Anderson (1998) - Onus of proof not clear. * Vel v. Ownes (1987) - Crown does not have onus of proof to disprove unfairness as in PACE 1984 s.76. * R v. Stagg (1994) - Crown accepts onus of proof to disprove unfairness. * Code Breach * Helpful but not automatic exclusion by PACE 1984 s.78. * Elson (1974) - S.78 is to protect against the power of the state. * Senior (2004) - No automatic exclusion even if serious and substantial breaches. * Christoll (1992) - Person not yet arrested has code protections. * Rationale * O'Conner (1987) - Evidence of Co-Defendant's conversation regarding conspiracy no admissible because of rule against hearsay. * O'Loughlin (1987) - Evidence of certain witnesses was not admissible because although it had probitive value there was no guidance as to weight. * Keenan (1989) - Excluded evidence obtained in violation of Code C. * Khan (1997) - Evidence excluded because it was improperly obtained. * Cooke (1995) - The more serious the charge the more likely evidence is admissible. Here a hair sample taken by assault in rape case was allowed as evidence. * Stewart (1995) - Stealing utilities evidence was obtained by illegal entry to home (Code B violation) but not seen as 'anything said or done because the machine was there for all to see. * Hearsay evidence was admissible but with wide discretion leading to uncertain and inconsistent application. * CJA 1988 s.23/24 * 'Received or created in the course of trade' * Supplier and all others whose hands transfer the document can reasonably be presumed to have personal knowledge * Unlike s.116 hearsay evidence can be inferred from the documents and do not have to be strictly proven. * R v. Nasser ( ) - Common Law exception still allows oral evidence to prove contents. * R v. Ilyas (1998) - Business documents on countertop used for business was admissible as documents created in the course of business.
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