Flash-Caselist-Hearsay2.txt

• Reversed implied assertion-concerned evidence of telephone calls and visits by unidentified people to premises occupied by the accused. The callers believed that they were asking the accused to supply them with illegal drugs,but they were in fact speaking to police officers, the accused having been arrested. The relevance of the calls lay in the fact that the callers must have believed that the accused would supply drugs by asking for their �usual� supply. It was the view of the House of Lords, though not of the CA, that the calls were implied assertions of that fact. Because the callers could not be cross-examined about this belief, the calls were hearsay and therefore inadmissible.The decision in Kearley has been the subject of much criticism-Affirmed Myers.
• Dissent-Lord Browne-Wilkinson,�Any action involving human activity necessarily implies that the human being had reasons and beliefs on which his action was based.�
• What was said by the callers in Kearley [1] would now be admissible as direct evidence of the fact that there was a ready market for the supply of drugs from the premises, from which could be inferred an intention by an occupier to supply drugs. The view of the majority in Kearley [2], in relation to hearsay, has been set aside by the Act." Reversed-s.115 CJA 2003

• with ID=no general exception to hearsay rule/impossible for a defendant to put before the court credible evidence which points to his or her innocence a white man accused of assaulting a three-year-old girl, who was not called as a witness, from leading evidence that she had initially described her attacker as �a coloured boy�. Mother should have been called?? Jury left w/ impression child unable to give clue about id of assailant. O- the statement of the child was insufficiently contemporaneous to be admitted under the res gestae, and may well still fall foul of that
• precondition under the relaxed Ratten and Andrews formulation. NOW-Under the safety valve there is a strong case for admitting the evidence given its relevance to the defence.

• absurd the results-not first-hand evidence-The D was convicted of conspiracy to defraud and receiving stolen goodsremoving their identifying marks. HELD:HL-the hearsay rule was absolute unless an exception applied. The list of common-law exceptions was closed, and there was to be no further judicial development of exceptions to the rule,
• As a result, the defendant was acquited, despite the evidence against him being almost incontrovertible.

Hearsay fiddle, hearsay disguised as circumstantial connection between the defendant and the conspiracy:connection bt hearsay and non-hearsay struggle-L was arrested for conspiracy to commit benefit fraud from stolen books, an exercise book was produced in which someone had been practising forged signatures. .�Sharon's book� was inscribed on the cover.

• exception for the hearsay rule-Purpose of adducing the statement-truth or falsity irrelevant, S was charged w/ the unlawful possession of ammunition, contrary to emergency regulations then in force in Malaya. Subramaniam was charged with possession of ammunition for the purpose of helping a terrorist enemy, which would carry a sentence of death. His pleaded a defence of duress, claiming that he had no choice as the terrorists had threatened to kill him if he did not follow through with their requests. As part of the defence he wanted to testify about these conversation he had with the terrorists.At trial admitted possession but pleaded duress & sought to prove what had been said to him by certain terrorists.
• 1-judge excluded as hearsay.
• 2-PC allowed appeal The Council characterized the hearsay rule as follows:
• Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made. The fact that the statement was made, quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or of some other person in whose presence the statement was made.
• The Council found that since the statements were not used in order to prove one of the issues of law, rather it was in order to prove whether the defendant was reasonable in his actions, the hearsay rule should not apply. The truth of the statements made by the terrorists were not significant, it is merely the fact that they said something that would create a reasonable apprehension in the defendant Sometimes a party will want to adduce1 something that was said out of court for some reason other than to establish the truth of what was stated. In that case the statement will not be caught by the rule against hearsay. Such a statement is sometimes said to be �original� evidence, because what is relevant is not the truth of the statement but the fact that the statement was made.

• facts on which psychiatrists base their reports must be proved by admissible evidence-fact that an expert witness has impressive scientific qualifications does not by that fact alone make his opinion any more helpful than that of the jurors themselves/Counsel calling an expert should in examination in chief ask the witness to state the facts on which his opinion is based.; Hand just fell on the hammer and he hit her-T was convicted of murder and sentenced to life imprisonment. He appeals on the basis that the court did not admit evidence of a psychiatrist to support his defence of provocation-In the car she grinned and said that she had slept with other men to make money and that her child was not his.
• Appeal dismissed.

-exclusion of hearsay evidence that supports the defence case, as well as the prima facie prohibition on the admission of hearsay evidence to support the prosecution case.

-jury instruction-it was held that if a statement of the critical witnesses to be read to the jury, the trial judge must ensure that the jury realize the drawbacks which are imposed on the defense if the prosecution statement is read to them. It is not enough simply to say that defense counsel has not had the opportunity of cross examining the witness. The judge must at least explain that the jury may feel quite unable to attach anything like as much weight to the evidence in the statement as they might have done if it had been tested in cross examination. It might be desirable for the judge to indicate, by way of illustration, the sort of matters that could have been dealt with in cross-examination.

• 1-Where hearsay evidence was demonstrably reliable, or could be properly tested & assessed, the rights of the def were respected & the trial was fair, even if it was decisive evidence in a case. Article 6(3)(d)
• 2-The Supreme Court said that this principle had been introduced into European jurisprudence without discussion of its underlying principles and without full consideration of whether there was justification for imposing it on common law systems. The safeguards enacted in CJA 2003 made such a principle unnecessary.This involved three conjoined appeals by witnesses whose convictions were based solely, or to a decisive degree, on hearsay evidence.

-no infringement of Article 6-CA said that where a court was sure that a witness had been kept from giving evidence by a defendant, or by persons acting for him, there would be no infringement of Article 6 because the defendant would have denied himself the opportunity of cross-examining the witness ie as he was the �author of his own inability to examine the witness and deprived himself of his only opportunity to do so.� Held not be right for there to be some absolute rule that where hearsay evidence was the sole or decisive evidence to the prosecution, it must automatically be excluded on the basis that to admit it would infringe the defendant's right to a fair trial.

implied assertions admitted-when s.114 and s.118 were read together, they abolished the common law hearsay rules, save those which were expressly preserved, and created instead a new rule against hearsay which did not extend to implied assertions telephone entries were held not to be a matter stated within section but to be implied assertions which were admissible because they were no longer hearsay/

Article 6-The more decisive the evidence in the statements, the greater the care needed to be sure of why the witness cannot come and give evidence-it was held that a conviction solely or decisively based upon evidence of witnesses which the accused has had no opportunity to examine, breached Article 6 of the Convention (right to a fair trial)ie the rights of the defendant will have been restricted to such an extent as to be incompatible with Article 6.

• touchstone=Art. 6 (3)-held that the admission of hearsay evidence pursuant to s. 114 CJA 2003 was not incompatible with Art. 6 (3) (d) of the European Convention (right to examine witnesses) since Art 6 (3) (d) is not an absolute right ie Article 6(3)(d) does not give a defendant an absolute right to examine every witness whose testimony is adduced against him. The touchstone,a standard by which something is judged, is whether fairness of the trial requires this. In any event the court has a discretion to exclude evidence where its admission would lead to an unfair trial.
• 2-when considering an application to admit the previous complaint of a rape victim under Section 120 (see below) stated that even if the previous complaint fell outside the strict construction of Section 120 they would admit the evidence under Section 114(1)(d).

• -The appellant (G) appealed against his conviction for murder, challenging the constitutionality of the Evidence Act 1843, and also the trial judge's exercise of discretion to admit the unsworn evidence of one eye-witness (B) and not that of another eye-witness (K). B's unsworn evidence was put before the jury on the basis that he could not be found after all reasonable attempts had been made to find him under s.31D(d) EA [1843]. Lord Bingham said that it would be intolerable if a defendant could intimidate a witness so that he refused to give evidence and then rely on article 6 to exclude hearsay evidence. Where a witness who was unavailable because of death or illness, or any of the other reasons in S1 16, the argument for admitting hearsay was less irresistible. But, he continued there might still be a compelling argument for admitting it, provided this does not unfairly disadvantaged the defendant.
• (2) It was not fair to admit the statement of B and leave the jury ignorant of K's statement, which was much more favourable to G. K's evidence was highly pertinent to the issue of lawful self-defence, G was entitled to have his case assessed, and his own evidence evaluated, in the light of all the available evidence. It was the responsibility of prosecuting counsel and the trial judge to ensure that the proceedings were fair, and they had failed to do so. G's conviction was quashed and the case remitted to the Court of Appeal for it to decide whether, there should be a retrial.

• s.116-hearsay admitted=main evidence relied on by the prosecution. In dismissing the appeal in each case, the Court said that Article 6 was concerned solely with ensuring that a trial was fair. It assumed that it was possible for each side to call its witnesses, but did not deal with the situation where this was not possible in relation to a particular witness. In deciding whether hearsay evidence from such a witness should be admitted, the only question is whether its admission would be compatible with a fair trial. That will depend on the facts of each individual case.
• Worthern-Keet-the Court of Appeal reviewed a decision to admit under s.116(2)(b) written evidence given by a woman now suffering from dementia, and did so by way of a detailed review of each of the factors set out in s.114(2)23 --even though this subsection explicitly states that it concerns only decisions regarding the interests of justice under s.114(1)(d). Because those factors weighed strongly in favour of admitting the statement, the Court of Appeal accepted that the judge's decision was correct. Two criticisms may be made of this approach. 1-it is incorrect: as stated above, considerations regarding the interests of justice clearly do not apply to s.116(2)(a)-(d) or s.78 of PACE.
• 2-more worryingly, it threatens to remove any clarity and simplicity which the detailed rules in s.116 might give: what is the point of having a set of different gateways if situations which clearly fit those gateways still have to be considered at length according to the interests of justice and the nine criteria laid down in s.114(2)? If each decision is to come down to discretion anyway, then might it not be simpler just to have one clear discretionary rule?

deceased witness-statement of evidence of a deceased witness was admitted under s.23 of the Criminal Justice Act 1988. Hearsay evidence of a complainant was admitted, appellant had been charged with two counts of indecent assault, but one of the complainants died by the time the trial took place. Her statement was admitted in accordance with the old CJA 1988. On appeal, it was argued that this violated Art 6(3)(d). The appeal was dismissed. The CA said that the public interest in enabling the prosecution to proceed must not outweigh the defendant�s right to a fair trial, but the right of cross-examination was only one element in such a trial. In that case, the appellant had been able to attack the accuracy of the deceased complainant�s statement by exploring inconsistencies between it and evidence of recent complaints that she had made. He had also been able to adduce expert evidence to counter her allegations and the trial judge had pointed out to the jury the difficulties presented by lack of an opportunity to cross-examine the witness. The proceedings as a whole had been fair.

insufficient reasons for absence at trial/counterbalancing factors-Article 6(3) was an express guarantee in itself-question arose again; it could not be read simply as an illustration of matters to be taken into account when considering the fairness of the trial. The statement of a patient, who had subsequently committed suicide, implicating the accused (a doctor) in a sexual offence, admitted under the now repealed CJA 1988, was the only evidence against the defendant or at least the decisive, basis for conviction. In Al-Khawaja�s case the hearsay statements had been the only, For this reason, and as there were no factors which could counterbalance the prejudice to the defendant, his minimum rights had been infringed and there had been a violation of Article 6(1), read in conjunction with Article 6(3)(d). The Court pointed out that this was not a case where a witness had been kept from giving evidence through fear induced by the d. But the Court added that it doubted whether, in the absence of such special circumstances, any counterbalancing factors would be sufficient to justify the introduction of a hearsay statement that was the sole or decisive basis for convicting a defendant. If the English courts follow this decision, hearsay evidence from an absent witness whose evidence is the sole or main evidence against a defendant is likely to be inadmissible unless the reason for absence is that the witness has been intimidated by the defendant. It is unclear whether such intimidation must be caused directly by the defendant. Other reasons for absence at trial, such as illness or death, will be insufficient where the evidence is the sole, or main, basis for the prosecution case. A decision of the ECrtHR of considerable importance concerning the admissibilty in criminal proceedings of untested statements that are read to the court as evidence in the case. The decision in the cases of Al-Khawaja and Tahery suggests that, except in very limited special circumstances, allowing a witness statement to be admitted if it is the sole and decisive evidence in establishing a conviction will violate the right to a fair trial. This holds true regardless of counter-balancing factors that can be taken into account according to the domestic evidence legislation.

the statement of evidence of a witness too fearful to attend trial was admitted under s.116 of the CJA 2003.

• 114(1)(d)available in law for all types of hearsay-Crown made an interlocutory appeal under the Criminal Justice Act 2003 s.58 against a judge's ruling at the trial of the respondent (Y) for murder that s.114(1)(d) of the Act had no application to a hearsay statement contained in a confession of another person.
• Appeal allowed. Section 114(1)(d) was available in law for all types of hearsay, and on application by any party to a criminal trial. In the case of an out-of-court statement contained in, or associated with, a confession, s.118(1) para.5 did not exclude the application of s.114(1)(d), R. v Hayter (Paul Ali) [2005] UKHL 6, [2005] 1 W.L.R. 605 considered. The greatest care had to be taken, before admitting an out-of-court statement under s.114(1)(d), to ensure that the s.114(2) factors were fully considered and that overall it was genuinely in the interests of justice that the jury should be asked to rely on the statement without seeing its maker and without any question being addressed to him about it, R. v Taylor (Stuart) [2006] EWCA Crim 260, [2006] 2 Cr. App. R. 14 applied. The judge's ruling that the Crown was prevented by s.118(1) para.5 from making its application under s.114(1)(d) was reversed. The merits of that application were for the trial judge at Y's resumed trial.
• Tapper-s.114(1)(d) was not confined to evidence adduced
• by the defence, and that it had effectively superseded the common
• law rule that a confession is admissible only against its maker
• notwithstanding the explicit preservation of the common law rules relating to confessions.

• s.117(2)(c) problemscourse of a trade or business/�the sweeping up interests of justice test, narrow -(M) appealed by way of case stated against her convictions for careless driving, failing to stop at the scene of an accident and failing to report an accident to the police. An individual claimed to have seen the accident as it occurred and left a note on X's car with the registration number of the car that allegedly struck X's car. At the date of trial the original note was lost and the DPP sought to adduce the police log as hearsay evidence pursuant to the Criminal Justice Act 2003 s.117 . M challenged the admissibility of the log and contended that the requirements under s.117(2)(c) of the 2003 Act for the person supplying the information to have been acting in the course of a trade or business were not met. The magistrates' court rejected M's submission and convicted her.
• Held, dismissing the appeal, the magistrates' court erred in admitting the log as hearsay evidence pursuant to s.117. The log was based upon the information supplied by X's girlfriend. She was not acting in the course of her business when she informed the police of the information that she received via the note. However, it was appropriate to admit the police log as hearsay evidence in the interests of justice. There was no basis to suggest that the admission of that evidence was not in the interests of justice & the evidence was of substantial value and reliable. Accordingly M's convictions were safe.

Scott Baker L.J. also separately stated in that �as a matter of generality, section 114 cannot and should not be applied so as to render section 116 nugatory� --this seems to suggest that situations already considered under s.116 cannot also be considered under s.114(1)(d).