Hearsay seminar 5 - Sacha Waxman PDF

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SEMINAR 5 HEARSAY EVIDENCE Compulsory reading in advance of the seminar: Keane and McKeown, ‘The Modern Law of Evidence’, 13th Edition o Statutory provisions that will be referred to in the seminar:

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S 114 - 121 Criminal Justice Act 2003 Police and Criminal Evidence Act 1984

Core cases that will be referred to in the seminar: *R v Twist and Others [2011] [2011] 2 Cr App R 17; EWCA Crim 1143 R v. Minors [1989] 1 WLR 441. DPP v. McKeown [1997] 1 WLR 295. Wright v. Doe d Tatham (1834) 7 Ad & El 313. (Civil case) *R v. Kearley [1992] 2 All ER 345. *R v. Singh [2006] EWCA Crim 660. *Subramaniam v. Public Prosecutor [1956] 1 WLR 965. *Ratten v. R [1972] AC 378. R v. Lydon (Sean) (1987) 85 Cr App R 221. R v Wallwork [1958] 42 Cr. App. R. 153 R v Wright and Ormerod [1990] Williams v. VOSA [2008] EWHC 849. R v. Taylor [2006] EWCA Crim 260. *R v. Davis (Eric Elvis) [2010] EWCA Crim 1213. R v. Musone [2007] EWCA Crim 1237. R v. Freeman [2010] EWCA Crim 1997. Thompson v. Trevanion (1693) Skin 402. R v. Bedingfield (1879) 14 Cox CC 341. *Ratten v. R [1972] AC 378. *R v. Al-Khawaja [2006] 1 All ER 543. *R v. Lang [2004] EWCA Crim 1701. R v. Millett (21 July 2000, Unreported) *R v. Setz-Dempsey (1994) 98 Cr App R 23. R v. Elliot [2003] EWCA Crim 1695. R v. Case [1991] Crim LR192. R v. Maloney [1994] Crim LR 525. R v. Hurst [1995] 1 Cr App R 82. R v. Bray (1988) 88 Cr App R 354. R v. C and K [2006] EWCA Crim 197. R v. Cheema [2010] EWCA Crim 1352. R v. Doherty [2006] EWCA Crim 2716. R v. H [2001] Crim LR 815. R v. Belmarsh Magistrates Court ex parte Gilligan [1998] 1 Cr App R 14. *R v. Shabir [2012] EWCA Crim 2564

R v. Sellick [2005] 1 WLR 3257. *R v. Horncastle [2010] 2 AC 373. Ibrahim [2012] EWCA Crim 837 Morgan v DPP [2016] EWHC 3414 (Admin) Wills v Crown Prosecution Service [2016] EWHC 3779 Myers v DPP [1965] AC 1001 Gurdip Singh Sohal [2019] EWCA Crim 1237 Brett C [2019 EWCA Crim 602 Kuany Eljack & Khalid Latif [2019] EWCA Crim 1038 Saunders [2012] EWCA Crim 1185 R v EED [2010] EWCA Crim 1213 Barnaby v DPP [2015] EWHC 232 (Admin) R v. Riat [2012] EWCA 1509

Additional reading D. Wilde, ‘Hearsay in Criminal Cases: res gestae and dying declarations: R v. Bedingfield revisited’ [2000] 4 International Journal of Evidence and Proof 107. o Bedingfield – case where Rudd shouting ‘look what Harry’s done’ with cut throat was not spontaneous enough o In now considering if Rudd’s statement, we would not look at R v Andrews. Test is whether there is no possible risk of fabrication in the statement o Wilde questions whether the prosecution in Bedingfield were in a position to show beyond reasonable doubt that the Andrews test was satisfied. Wilde asks if it is to far fetched to believe that Rudd could have cut Bedingfield's throat, then cut her own, and then immediately gone outside and told bystanders that Bedingfield had done it all. o Compares it to Van Gogh’s ear cutting – what if day she died was Eliza’s Rudd’s first day of madness? o Wilde says the treatment of Bedingfield in Andrews seems unsatisfactory o Wilde asks whether Bedingfield should be remembered, not for the 'ludicrous' (J. C. Smith, Criminal Evidence (Sweet & Maxwell: London, 1995)) (formal) exclusion of hearsay, but rather for the unfortunate (substantial) reliance upon it? M. Hirst & D. Birch, ‘Interpreting the New Concept of Hearsay’ (2010) Cambridge Law Journal 72. D. Birch, ‘Criminal Justice Act 2003 Hearsay: same old story, same old song?’ [2004] Criminal Law Review 556. T. Worthen, ‘The Hearsay Provisions of the Criminal Justice Act 2003: so far, not so good?’ [2008] Criminal Law Review 431. M. Hirst, ‘Hearsay, Confessions and Mobile Phones’ (2011) 75 Journal of Criminal Law 482. P. Mirfield, ‘A Final Farewell to Kearley’ (2012) 128 Law Quarterly Review 331.

Additional perspectives:

https://www.theguardian.com/law/2011/dec/12/strasbourg-ruling-hearsay-evidence-uk

Topics for discussion in the seminar: 1. What is hearsay? The word hearsay itself is a noun and means things you have heard from another person but do not definitely know to be true. It is a testimony from a witness under oath who is reciting an out-of-court statement, content of which is being offered to prove the truth of the matter asserted When looking at matter asserted – we look at purpose. i.e. X screams about pink pigs in foyer. Pink pinks were in foyer = evidence, but X’s state of mind = not hearsay 2. What effect did the Criminal Justice Act have on the admissibility of hearsay evidence? S114(1) states 4 exceptions where hearsay will be admissible 3. What is the rationale behind the rule of inadmissibility?  Best evidence rules – court want best evidence so can attach weight to it  Cross-examination of witnesses – cross examination weighs heavy and hearsay disregards this  Inherent danger of error / distortion – idea of Chinese whispers, words can get changed easily, could completely change how reliable statement is  Fabrication of concoction – easy to make up evidence that cannot be substantiated 4. Re-cite the critical approach to identifying hearsay evidence as detailed in R v Twist [2011] – CA suggested following approach when considering whether hearsay rules apply… o identify what relevant fact (matter) the statement is intended to prove; o ask whether there is a statement of that matter in the communication. If not, then no question of hearsay arises (whatever other matters may be contained in the communication); o if there was such a statement, 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, it is hearsay. If no, it is not. 5. Is evidence of hearsay always inadmissible? No, if falls under s114(1) then it will be admissible:  any provision of this Chapter or any other statutory provision makes it admissible,  any rule of law preserved by section 118 makes it admissible,  all parties to the proceedings agree to it being admissible, or  the court is satisfied that it is in the interests of justice for it to be admissible.

6. Where are the four exceptions to the general rule contained and what do they say? As above 7. If a witness is ‘unavailable’ to attend, with which party has the burden of proof? To what standard?  Falls on party seeking to adduce that evidence as hearsay evidence. The standard is beyond reasonable doubt for the prosecution and on the balance of probabilities for the defence 8. According to R v. Lang [2004], who decides whether a witness/relevant person is unfit to give evidence? – matter for judge to decide fitness, exercise of judicial discretion again. But crucially, it is guided by expert medical evidence from doctors 9. If a witness is dead, can a defendant receive a fair trial if the witness’s evidence is read and that witness cannot be cross examined? See R v. AlKhawaja [2006]  Article 6 entitlements do not inevitably lead to a breach of the Convention where the hearsay statements allowed in under UK law play a sole or decisive role. Fairness can be challenged here as evidence could carry less weight 10. Give examples (with reference to case law) of what constitutes “unfit” to give evidence?  Unfit means unfit to give evidence, not unfit to attend court  R v Millett – unfit because giving evidence would cause ‘catastrophic adverse effects’  R v Setz - Dempsey [1994] – mental disorder  R v C (A) [2014] – potential trauma one would suffer from giving evidence 11. In what circumstances can the exception “in fear” as outlined in section 116 (2) be used?  S116(2)(e) - The person does not give (or does not continue to give) oral evidence through fear  Can only be admitted if: the court considers that it is in interests of justice to admit the statement, and the fear has not been provoked by the party seeking to adduce the evidence in question 12. What if a witness is outside of the UK and their attendance cannot be secured?  S116(2)(c) - Must prove relevant person is outside UK and it is not reasonably practicable for them to attend court  Steps must be taken to secure attendance, can look at cost of travel (Case) and witnesses willingness to attend (Maloney)  As in R v Cheema, meaning of giving evidence includes by live video link 13. What is meant by res gestae?  Latin translation means ‘things done’  Refers to a spontaneous declaration made by a person immediately after an event and before the mind has an opportunity to conjure a false story  Res gestae is broken down into 3 types: 1. Those made when a person is so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded;

2. Statements accompanying an act which can only be properly evaluated in conjunction with the statement; 3. Statements relating to a physical or mental state. 14. Outline the five factors for consideration of RG as outlined by Lord Ackner in R v Andrews [1987] 1. Can the possibility of concoction or distortion be disregarded? 2. In order to answer Q1, consider the circumstances that it was made so that he can be satisfied that the event was so startling or dramatic that at the time of the statement the event was dominating the mind of the maker 3. Spontaneous means the statement was so closely associated with the event that the mind of the maker was dominated by it 4. Consideration should be given to any other factors that might suggest there was room for concoction or distortion 5. Generally the risk of error of the person making the statement is a factor relating to the weight that should be given to the evidence, not the admissibility of it. 15. What factors must be considered in respect of the interests of justice exception as contained in section 114 (2)? (a)how much probative value the statement has (assuming it to be true) in relation to a matter in issue in the proceedings, or how valuable it is for the understanding of other evidence in the case; (b)what other evidence has been, or can be, given on the matter or evidence mentioned in paragraph (a); (c)how important the matter or evidence mentioned in paragraph (a) is in the context of the case as a whole; (d)the circumstances in which the statement was made; (e)how reliable the maker of the statement appears to be; (f)how reliable the evidence of the making of the statement appears to be; (g)whether oral evidence of the matter stated can be given and, if not, why it cannot; (h)the amount of difficulty involved in challenging the statement; (i)the extent to which that difficulty would be likely to prejudice the party facing it.

16. If there is agreement regarding admissibility of hearsay does this have to be expressed or implied? Provide authority. Agreement can be express or implied: R v Shah [2012] – implied hearsay can be allowed R v Twist confirmed this… - identify what relevant fact (matter) the statement is intended to prove;

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ask whether there is a statement of that matter in the communication. If not, then no question of hearsay arises (whatever other matters may be contained in the communication); if there was such a statement, 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, it is hearsay. If no, it is not.

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What weight is to be attached to hearsay evidence IF it is admitted? 

You are expected to come to the seminar prepared to discuss these questions:

1. Stuart has been charged with the rape of a sixteen-year-old girl, Kim. He denies the allegation against him. In seeking to secure Stuart’s conviction for rape, the prosecution wishes to admit the following as evidence against him: (a) Explicit naked photos of Kim from Stuart’s mobile phone which are dated the same day as the alleged offence.  Are photographs a statement? S115(2). As photograph on his phone is an out of court assertion, it would be hearsay. It can also be a statement under s115(2) - ‘A statement is any representation of fact or opinion made by a person by whatever means [including] a representation made in a sketch, photofit or other pictorial form’  We only know photos are explicit. We only know that at time of photograph, Kim was naked. We do not know if there is penetration etc  Place – must have been made out of court – yes it has  Purpose – purpose of statement. Purpose is to prove rape offence; however, photo’s only prove she was naked, they may have had consensual sex. It only makes it more likely (implied) from the photographs  Implied hearsay: Agreement can be express or implied: R v Shah [2012] – implied hearsay can be allowed  R v Twist confirmed this… o identify what relevant fact (matter) the statement is intended to prove; - Stuart raped Kim o ask whether there is a statement of that matter in the communication. If not, then no question of hearsay arises (whatever other matters may be contained in the communication); No, not hearsay o if there was such a statement, 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, it is hearsay. If no, it is not.

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THIS IS NOT HEARSAY

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As photograph on his phone is an out of court assertion, it would be hearsay. It can also be a statement under s115(2) - ‘A statement is any representation of fact or opinion made by a person by whatever means [including] a representation made in a sketch, photofit or other pictorial form’. Can be documentary hearsay (Patel v Controller of Customs) Traditional definition comes from Cross and Tapper On Evidence: An assertion other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact or opinion asserted. Hearsay evidence is therefore inadmissible unless it is admitted through an exception to the hearsay rule under s114(1)… a. any provision of this Chapter or any other statutory provision makes it admissible, b. any rule of law preserved by section 118 makes it admissible, c. all 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. S129 - for automatic machines, they must be proven to be accurate before evidence is admissible.

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(b) Testimony from Dave who will say that Rolf, Stuart’s friend, told him (Dave) that Stuart allowed him (Rolf) to watch Stuart having sex with Kim via a webcam. Rolf is now permanently confined to his bed in a hospice as he has recently been diagnosed with an acute terminal illness  Hearsay is prima facia inadmissible unless falls under one of s114 exceptions …  Purpose – to find out whether Stuart has had sex with Kim. It is therefore prima facie hearsay.  s114 - Admissibility of hearsay evidence : (1)In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if —  a. any provision of this Chapter or any other statutory provision makes it admissible,  b. any rule of law preserved by section 118 makes it admissible,  c. all 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.  S114(1)(a) – in hospice, terminally ill. Providing there is medical evidence if he is unfit (Al-Khawaja) and his statement could be read out as hearsay evidence. Scope for academic commentary – Horncastle: right to cross examine issues?  S114(1)(d) – justice, but note…  R v Davis (Eric Elvis) [2010] – court followed recent case law and said there must be caution in using s114(1)(d). Parties are obliged in first instance to consider whether s114 (a) –(c) are more appropriate

Critically discuss the hearsay issues arising.

2. Critically discuss any hearsay difficulties involved in each of the following pieces of evidence in unrelated criminal trials. (a) Alan's defence at his trial for the murder of Bill is loss of control. In support of this defence, Alan’s barrister wishes to call Charles who will say that he (Charles) heard Bill call Alan ‘a child molester’, whereupon Alan killed Bill.  Place – statement made out of court  Purpose – 1 hr 17  

When looking at rationale – Bill cannot be cross examined on his original evidence as he is dead Risk of fabrication of concoction – it is really easy to make up evidence that cannot be substantiated. This is particularly with oral hearsay

(b) Fred is on trial for the murder of George. The prosecution wants to call a British Telecom operator who answered a 999 call from George's house at around the time of the alleged murder. The operator would say that a man shouted into the phone "Fred has cut my throat!" whereupon the line went dead    

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Hearsay is prima facia inadmissible unless falls under one of s114 exceptions … Place – statement made out of court Purpose – evidence of George shouting, murder trial etc. admissible for purpose as trying to establish a relevant matter s114 - Admissibility of hearsay evidence : (1)In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if — a. any provision of this Chapter or any other statutory provision makes it admissible, b. any rule of law preserved by section 118 makes it admissible, c. all 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.

 Res gestate broken down into 3 types 1. Those made when a person is so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded; 2. Statements accompanying an act which can only be properly evaluated in conjunction with the statement; 3. Statements relating to a physical or mental state. Spontaneous statements made by persons emotionally overpowered by events (s118(4)(b) 

Look at R v Andrews test. this criteria look sat whether concoction or distortion can be disregarded.

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How startling or dramatic the event was; How spontaneous the statement was; Whether the triggering event was still operative when the statement was made; Any special features relevant to the possibility of distortion or concoction (e.g. evidence of a motive to fabricate false evidence); and – time frame here is very narrow Any special features relevant to the possibility of error (e.g. an identification made by a witness with particularly poor eyesight).

Spontaneity is really important here, but it is not solely decisive

Saunders [2012] – only significant evidence that appellant stabbed V here was hearsay. Res gestae applied here https://www.casemine.com/judgement/uk/5a8ff6f860d03e7f57ea4ebc...