6.Hearsay Part 1 - This is a detailed and complete answer structure for problem question on the PDF

Preview

Summary

This is a detailed and complete answer structure for problem question on the chapter hearsay evidence. This note provides the complete materials for this chapter....

Description

Hearsay

UNDERSTAND: DEFINITION OF HEARSAY (a) Traditional definition A statement not made in oral evidence under oath in court, offered as evidence of the truth of what is stated. The person on the stand should be the person who directly perceived the occurrence. Sharp [1988] 1 WLR 7: LORD HAVERS cited the definition stated in Cross on Evidence: ‘an assertion other than one made by a person while giving oral evidence in the proceedings is admissible as evidence of any fact asserted’. e.g. recounted by another witness e.g. offered in documentary form But note now defined in s.115 CJA 2003 (b)Modern statutory definition CJA 2003, s. 114(1): ‘In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if…’ CJA 2003, s. 115 RATIONALES FOR INADMISSIBILITY (a) Rationales Teper [1952] 2 All ER 447: ‘The rule against the admission of hearsay evidence is fundamental… Hearsay is (1) not the best evidence and is (2) not delivered on oath. (3) The truthfulness and accuracy of the person whose words are spoken to by another witness cannot be tested in cross-examination, and (4) the light which his demeanour would throw on his testimony, is lost.’(eg: they haven’t seen the people who actually said this) (LORD NORMAND) Blastland [1985] 2 All ER 1095: ‘Given that the subject matter of hearsay is relevant to some issue at trial, it is clearly potentially probative. The rationale for excluding it (5) is a recognition of the great difficulty of assessing what if any weight can properly be given to a statement of a person whom the jury have neither seen nor heard.’ (LORD BRIDGE)

The right to confront your accuser? Art 6(3) ‘right to examine or have examined… witnesses against him.’ The danger of concoction (make up) Kearley [1992] 2 AC 228, per LORD ACKNER The risk of transmission errors (b)Examination of rationales i.

Not the best evidence? But there may be no better evidence available/ hearsay may be the best source Myers v DPP [1965] AC 1001: prosecution for stealing cars and altering identity of car, etc. Prosecution wanted to rely on some record from the factory about the engine. Someone in the factory gave statements. Prosecution relied on the record of statements from unknown people. Held: excluded. But, this could probably be the best evidence, but the court threw it away, because hearsay can’t be admissible.

ii.

Not delivered on oath/affirmation Eternal Damnation? What force? People may not be religious, etc. Perjury charge for lies Query circumstances where no reason to lie? Sometimes it can be the truth

iii.

Not subject to cross-examination Cross examination may expose, ambiguity, lies, mistakes, memory errors. But how effective is cross examination? Many witnesses in normal cases go without being cross-examined

iv.

Observing the demeanour of the witness Wellborn ‘Demeanour’ (1991) 76 Cornell LR 1075: psychological studies found it may not be true that when we observe, we can tell deception Variations in ability to deceive, some people are good at lying Courtroom stress may (falsely) suggest dishonesty

Assessment of truth depends upon knowledge of witness (we tend to figure when someone we know lied) v.

Difficulty in assessing weight (because its just hearsay, scared it would be too much weight) Not special to hearsay May be easy to assess weight in some cases Studies suggest that juries do not give too much weight to hearsay. AND (Bentham argument) if Hearsay is excluded the jury has no opportunity to assess it.

vi.

The right to confront your accuser Right to confrontation: Art. 6(3)(d) ECHR: Everyone charged with a criminal offence has the minimum right ‘to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him’ But confrontation may intimidate witness Medieval contest of personality Cp. Continental systems which rely upon a dossier Cp. ‘Special Measures’ under Youth Justice and Criminal Evidence Act 1999 – to facilitate testimony by excluding confrontation with D. (Eg: youth, children, sexual abuser also very difficult, terrified that could cause witness withdrew case/ statements, so this Act allows the witness to do examination prior court, behind the scenes, or do examination via link, special measures to help vulnerable witness) =the idea of ‘there must be confrontation’ doesn’t seem to be wholly true.

vii.

Danger of concoction No perjury sanction But not exclusive to hearsay, any evidence could be concocted/ made up Some hearsay carries minimal risk (e.g. Doctor’s appointments book)

Twist [2011] EWCA 1143: HUGHES LJ: The principal underlying reason why hearsay evidence is only admissible in limited circumstances lies in the danger of concoction and the difficulty of testing or contradicting it when the speaker is not in court to be examined upon it’. viii.

Transmission errors Issue of weight (the lawyers can advise jury on the weight, rather than wholly inadmissible) What about recorded evidence? Minimal risk.

START: Criminal Justice Act 2003, Chap. 2 For flexibility of admissions and jury to determine cogency s.114 THE HEARSAY RULE A statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated, if but only if… [List of conditions for admissibility, below] (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 admissible, (eg, some of the common law rule still applies) (c)All parties to the proceedings agree…., or (d)The court is satisfied that it is in the interests of justice for it to be admissible.

= such statements (hearsay) are not admissible unless one of the conditions is satisfied. Only apply to statements made by persons, not machines (e.g. CCTV). Abolishes common law rules unless expressly preserved (see Singh and Leonard). Twist [2011] EWCA Crim 1143: HUGHES LJ: ‘admissible as evidence of any matter stated’ invites us to consider what the party seeks to prove. Two essential elements: (1) the place of the statement (must be out of court); (2) the purpose of statement (must not be adduced to prove truth of itself, but may be adduced to prove other things, e.g. that X spoke). If criteria met, statement will be admissible as original evidence. Instances: Prove two people were communicating Prove the relationship between two people

Not hearsay Not hearsay

Prove the matter stated in the communication

Hearsay

HUGHES LJ also recognised: ‘The Act does not use the expression ‘assertion’… [probably] to avoid the complex philosophical arguments which beset the common law, as explained in [Kearley]’. HUGHES LJ’s guidance for hearsay: 1.Relevant fact/matter to be proved 2.Whether there is a statement re that matter in the communication (s.115(2)) If no, no hearsay: ‘Some communication may contain no statement at all… ‘’Will you have any crack tomorrow?’ seems to us to contain no statement at all. But even if it be analysed as containing an ‘implied assertion’ that the recipient is a drug dealer, that fact is still not a ‘matter stated’ for the purposes of ss 114 and 115(3) because the sender does not have any purpose to cause the recipient to believe that fact or act upon the basis it is true. They both know it, and it is the common basis for their communication’. If yes, then: MADE IN ORAL EVIDENCE – not hearsay, but original evidence and admissible ADDUCED AS EVIDENCE OF ANY MATTER STATED – look to purpose (s.115(3)) 3.Purpose (whether dominant or not) of the maker for the communication: did the maker have the purpose of making the recipient, or any other party, believe the matter/act upon it as true? If no, no hearsay If yes, hearsay Sparks [1964] AC 964 PC: White male accused of indecently assaulting a 3-year-old, who had previously told her mother that the person who assaulted her ‘was a coloured boy’. Being three, the child did not testify. D was unable to adduce the statement because the judge ruled it hearsay and thus inadmissible. PC upheld this upon appeal. Even though the statement was unambiguous and probably reliable, the hearsay rules prevented admissibility CHECK THE maker’s intention: is it intended to persuade people? s.115(2) ‘statement’

A statement is any representation of fact or opinion made by a person by whatever means – including representations made in sketch, photofit or other pictorial form. E.g. nod of head after throat cut; police officer’s notebook; medical report; a drawing, such as a sketch of the suspect Chandrasekera [1937] AC 220 (PC): V could not speak because her throat had been slit. She could, nevertheless, gesture towards D, indicating he was the attacker. When asked if he was, she nodded. PC: although gestures were hearsay, they were admissible pursuant to the obsolete common law ‘dying declaration’ exception. Therefore, hearsay extends to physical actions R v Gibson [1887] QBD 537: D convicted of unlawful and malicious wounding, having thrown a stone at V. A woman pointed to D’s house after the attack and exclaimed ‘The person who threw the stone went in there’. At trial, the pointing was admissible as a statement. However, the woman was neither called nor identified, hence reliability could not be examined. Reversed on appeal for being inadmissible hearsay. HOWEVER, Beyond hearsay definition: not a ‘statement’ such as utterances Utterances which are NOT statements (therefore admissible subject to relevance): such as greetings, requests, exclamations, threats. Woodhouse v Hall (1980) 72 Cr App R 39: Police officer in plain clothes to investigate in the premises which used for prostitution. Evidence he had been offered sexual services at particular premises [?]. Defence said, the police can’t rely on what the women said in the premises because it way hearsay. Whether or not the ‘what the women said/ offered’ is true wasn’t the biggest concern, it was deemed as utterances. = in this case, the words spoken were not anything stated, they were operative words (performative utterance) with themselves constituted the offence (prostitution), so, not excluded as hearsay CHECK the purpose of the evidence will serve, is it circumstantial evidence? If so, then admissible. The purpose distinguishes hearsay evidence from original evidence. Assertions does not cover implied assertions (see below). s. 115(3) 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 – (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.

US v Long (1990): Goal of hearsay rule is to exclude declarations when their veracity cannot be tested through cross-examination. When a declarant does not intend to communicate anything, his sincerity is not in question. (?) Query: X writes in private diary – is this any more likely to be ‘sincere/honest’ than a statement in a letter to another person? Private Narratives: the purpose of the Diarist is not ‘to cause another to believe the matter stated’, therefore, its more sincere. Things are not designed to persuade, is likely to be sincere. Eg: Diary is more honest than an article to the DailyMail. N (2007) 171 JP158: CA: Contents of private diary kept by Victim of Sexual assault did not fall within definition of hearsay in s.115. She wrote for her own purpose, so it wasn’t intended to persuade anyone, it doesn’t fall under the definition of hearsay, hence admissible. Lydon (1986) 85 Cr App R 221: Hearsay ONLY APPLIES if the maker’s purpose is to cause another person to believe the matter, or act on basis that matter is true (s.115(3)). Piece of paper, with words ‘Sean Rules’ found on escape route used by robbers was not hearsay because Sean did not intend to make any other person believe that he ‘ruled’. Subramaniam v Public Prosecutor [1956] 1 WLR 965 PC: MR LMD DE SILVA: A statement made from non-witness to witness ‘is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement… [not] when it is proposed to establish by the evidence not the truth of the statement, but the fact it was made. The fact 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’. In this case, the terrorist threatened the defendant, and the defendant ought to rely on ‘what the terrorist’ said (the threat) to make his defence. = If it is in the interests of justice to admit this, then the evidence would be admissible. In this case, the defendant wasn’t trying to persuade the court that ‘what the terrorist said was true’, he merely wanted to show that a threat had been made.

MINI Understanding HEARSAY EXCLUSION I heard A shouting ‘I have won £50’ 1. TO PROVE Fred won £50 - EXCLUDED

2. TO PROVE Fred was in the house - ADMISSIBLE Lydon (1986) 85 Cr App R 221: Paper with ‘Sean Rules’ had accordingly been wrapped around a gun barrel discovered on getaway route. Paper was not presented as evidence that ‘matter stated’ (Sean Rules) was true. It was circumstantial evidence that somebody called Sean was associated with the gun. Consider why evidence is presented: it is not hearsay if it is circumstantial evidence. Consider intention. Furthermore, consider intention: it is not hearsay if the maker did not intend anyone to believe the statement. Patel v Controller of Customs [1966] AC 356 PC: Bag printed with ‘Product of Morocco’. (not really sure what’s this) CHECK implied assertions No longer included. Evidence of a statement/conduct from which a fact can be inferred where that statement/conduct was based upon a belief of the fact to be inferred. E.g. police officer told that ‘A sells drugs’ = hearsay if the police officer is called; police officer asked ‘Is A there? I want to buy some drugs’ = implied assertion. Harry [1988] 86 App R 105: CA: telephone calls to a flat asking D for co-D to buy drugs deemed inadmissible; could not be used to prove co-D was a drug dealer. Kearley (No. 1) [1992] 2 AC 228: Charged with possession and intent to supply a controlled substance. While police were searching, they witnessed phone calls (around 11) and visits to drug dealer’s flat, to request drugs from ‘Chippie’. Trial judge, upheld by CA, found the evidence admissible. Phone calls to drug dealer’s flat asking for

drugs, were hearsay, because of implied statement that K was dealer.

HL majority (3:2) approved Harry. Held that the evidence is not admissible. Evidence hearsay because of the implied statement that K was dealer. LORD BRIDGE: Inadmissible because ‘evidence of words spoken by a person not called as a witness which are said to assert a relevant fact by necessary implication are inadmissible as hearsay just as evidence of an express statement made by the speaker asserting the same fact would be’. Irrelevant whether the police officer’s evidence was more than likely reliable.

 TAPPER (1992): HL ‘has condemned the law to further convolutions of interpretation to determine what implications may be found lurking in statements, both those assertive and non-assertive on their face, and even more problematically in actions… Kearley seems unlikely to be followed, or approved, elsewhere, and may condemn the law of hearsay in England to wallow in a parochial morass of technicality induced by the invitation it extends to the minute dissection and intricate analysis of the corpus of words and acts adduced in evidence’. =If the case is judged again now: it will be admissible. s.115(3): Only hearsay if intended to cause another person to believe the matter stated. Now are simply admissible as being relevant circumstantial evidence.

Leonard [2009] EWCA Crim 1251: AIKENS LJ: ss 114(1) and 118(2) signify abolition of the common law rules, other than the rules preserved by s. 118 itself. D charged with possession of drugs with intent to supply. Text messages from satisfied customers were adduced, with one reading ‘Cheers for yday! Well sound gear:-S! feel well wankered today!’. CA: messages should not have been admissible because the senders intended D to believe the matters stated. Twist [2011] EWCA 1143: Commented that the result of Leonard would not have been the same had the Prosecution adduced the text messages to illustrate the supplier-customer relationship, as opposed to the quality of the drugs. If they had, the evidence would be admissible as an implied assertion (not hearsay). CA advised against the use of ‘implied assertion’.  (Evidence of mobile phone communication)  May be used to prove that X was in communication with Y, or the nature of the relationship, and not be in the least concerned with the veracity of what is stated. Midmore [2017] EWCA 533: (ROGER THINKS this case wrongly judged) D charged with GBH by throwing sulphuric acid in victim’s face. D+G bought drain cleaner. G sent Whatsapp message to girlfriend with picture of the cleaner and stated ‘This is the face melter’ Held: 1. This was a statement of what the prosecution sought to prove (intention to use to cause injury). But not hearsay because: 2.G did not intend to make another person believe the statement. 3.Therefore, not hearsay. Admitted as relevant to counter D+G’s story that cleaner was purchased for a blocked lavatory. Query: Did G intend his GF to believe his malicious intent? Yes

Roger said: This should be treated presumptively as Hearsay, but admitted in interests of justice s.114(1)(d). Prosecution can rely on the evidence’s probative value that it is very important, it would be unjust to exclude it. NOT IN LECTURE: Singh [2006] 1 WLR 1564: Implied assertions do not fall within the scope of hearsay pursuant to CJA 2003. Conspiracy to kidnap, for which the Prosecution adduced evidence of phone conversations with D’s co-conspirators. Along with this, they presented the phone memory of his co-conspirators’ phones, which listed D’s number. Appeal against conviction on the ground the phone memory evidence only contained an implied assertion, thus was inadmissible on the common law. CA: Upheld conviction. Old common law rule against hearsay re implied assertions is obsolete (see CJA 2003, ss 114 and 118). ROSE LJ: ‘The object of section 115(3) is to draw a line between intentional implied assertions , still caught by the hearsay rule, and unintentional implied assertions no longer treated as hearsay… Section 115(3) means that section 114 does not apply to statements unless the purpose of their maker was to cause belief in the hearer; an unintentional implied assertion remains hearsay, because this is what Kearley said, and is now always inadmissible’ ‘The interrelationship between ss 114 and 115 is deeply obscure… [but] the common law rule agains the admissibility of hearsay is abolished by the clear express terms to that effect in s. 118… new rule against hearsay… does not extend to implied assertions. What was said by the callers in Kearley would now be admissible as direct evidence of the fact 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 telephone entries are not a matter stated within s. 115. They are implied assertions which are admissible because they are no longer hearsay’. Also, admissible via s.118(1)(vii). R v MK [2007] EWCA Crim 3150: Phone conversation, where someone asked D about drug prices and availability, admissible. Not hearsay because the representation that D was the person’s dealer was merely an implied assertion; the caller did not have the purpose of making D believe a representation or act upon its truth (approved by CA in Twist). Chrysostomou [2010] EWCA Crim 1403: CA: CJA 2003’s provisions does not encompass implied assertions. Text messages, add...