Criminal Litigation SGS 14 Hearsay

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billsykes
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210158
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Criminal Litigation SGS 14 Hearsay
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2013-03-30 17:10:45
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Criminal Litigation SGS 14
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Criminal Litigation SGS 14
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  1. Jim is charged with assaulting Bob. Jim is claiming he acted in self defence as Bob attacked him. PC Glum found the two men fighting in the car park of the Kebab and Calculator pub. As part of his evidence PC Glum wants to state that an unidentified man in the car park came up him after he had broken up the fight and said ‘Jim definitely started it’.

    Which of the following is CORRECT?

    [A] PC Glum can give evidence of what the unidentified man said.
    [B] The evidence of what the unidentified man said is inadmissible as it is hearsay.
    [C] The evidence of what the unidentified man said is inadmissible as it is not relevant
    [D] PC Glum can give evidence of what the unidentified man said provided he wrote it down shortly afterwards
    Answer: B is correct: the evidence is plainly hearsay, as it being tendered to prove the truth of its content. It is plainly relevant to the issue before the Court. Answer [A] and [C] are therefore wrong and answer [D] has no basis as it makes no difference if the officer wrote the words down in this situation.
  2. Paulie and Sylvio are jointly charged with robbing the Bank of Gladbury on 4 August 2012. Paulie’s defence is duress. He says that he robbed the bank because Junior (now deceased) threatened to kill him if he didn’t. The prosecution argue that this evidence is inadmissible hearsay.

    Which of the following is CORRECT?

    [A] This evidence is inadmissible hearsay.

    [B] This evidence is hearsay, but admissible as part of the res gestae.

    [C] This evidence is hearsay, but admissible as a statement by a person now deceased.

    [D] This evidence is not hearsay
    [D] This evidence is not hearsay

    • Answer: D is correct: the evidence is not hearsay, as it is not tendered to prove the truth of its content. It is original evidence, admissible to show how the statement impacted upon Reggie’s state of mind (as per Subramaniam v The Public Prosecutor)
  3. On 4 August 2012, Ernie was standing outside the Bank of Gladbury, when two men in balaclavas ran out and jumped into a car, which then sped away. Ernie wrote down the registration number of the car on his shopping list. WPC Brown later called Ernie on the telephone. She records that during this brief exchange, Ernie said to her “I’m just on my way out, but looking at my note, the registration number of the getaway car was TN3 SRNO. Must dash now, bye”, and hung up. WPC Brown says she made a contemporaneous note of this in her notebook. Ernie is due to give evidence at the trial of the two men charged with robbery of the bank. He has lost his shopping list, and he cannot remember the registration number of the car he saw.

    Which of the following is CORRECT?

    [A] Ernie can use WPC Brown’s note to give evidence of the registration number, and this is not hearsay evidence.
    [B] WPC Brown can give evidence of the registration number from her note, as the note was made contemporaneously.
    [C] Ernie cannot use WPC Brown’s note as a memory refreshing document, because he did not verify the contents.
    [D] Ernie can use WPC Brown’s note as a memory refreshing document.
    [C] Ernie cannot use WPC Brown’s note as a memory refreshing document, because he did not verify the contents.

    Answer: C is correct: At common law, WPC Brown cannot give evidence of the registration mark, as it is hearsay evidence (but note the ‘exception’ to this rule in s.117 CJA 2003, which we will look at in the next session) – see, for example, McLean (1967) 52 Cr.App.R.80. Ernie cannot give this evidence as he cannot remember it, has lost the note, did not verify that WPC Brown’s note of what he said was correct (had he done so, he would have been able to use her note as a memory refreshing document). See, generally, Blackstone’s Criminal Practice [2012] at paragraphs F6.10-6.19 and 15.5.
  4. William is accused of operating a brothel at 1, High Street, Gladbury (‘The Premises’). William denies all involvement with the premises, but on searching William’s home, a police officer found a number of council tax bills addressed to William relating to the alleged brothel premises. The same officer can state that he entered the premises and was offered sexual services in return for payment by various women employed on the premises. He goes on to state that whilst he was on the premises the telephone rang, and he answered it to hear a male voice ask to book a full sexual service with Freda, who was employed on the premises.

    Consider the following propositions?

    (a) The evidence of the bills is admissible.
    (b) The evidence of the bills is inadmissible. (c) The police officer’s evidence of what the women said is admissible.
    (d) The police officer’s evidence of what the women said is inadmissible.
    (e) The evidence of the telephone call is not hearsay.
    (f) The evidence of the telephone call is hearsay.

    Which of the above propositions are correct?

    [A] (a), (c) and (e).
    [B] (a), (d) and (e).
    [C] (a), (c) and (f).
    [D] (b), (d) and (f).
    [A] (a), (c) and (e).

    Answer: A is correct. Statement (a) is correct following R v Lydon and R v. McIntosh; Statement (c) is correct following Woodhouse v. Hall; Statement (e) is correct, by virtue of s.115(3) CJA 2003 (which reverses R v Kearley).
  5. What is hearsay?
    Rule of evidence that holds certain statements inadmissible:

    statement (oral/written/gesture/etc.)

    made out of court

    Used to establish the truth of it content

    NB - always consider: what is the purpose of the statement being used for?
  6. Was Sparks v R hearsay?
    Yes:

    White defendant. Victim did not give evidence (too young). Victim’s mother wished to give evidence that victim had said “It was a coloured boy”.

    Hearsay – an out of court statement sought to be used to prove the identity of the killer (i.e. the truth of content).
  7. Was Subramaniam v R hearsay?
    Defendant charged with possession of Ammunition.

    He raised the defence of Duress and claimed he was only doing so because he had been threatened by terrorists.

    The words of the test were NOT Hearsay –as they were being used to prove the Defendant’s state of mind (fear), not what the terrorists had said.
  8. Does the hearsay rule apply to implied assertions of truth?
    No, implied statements are only potentially hearsay: R v Ratten

    "get me the police"
  9. Is negative hearsay permissible?
    Yes

    Case law forbids proving a fact from an ‘out of court’ statement but allows a negative to be proved from the absence of a statement
  10. Can machines be caught by the hearsay rule?
    No: if they merely act as a recorder (CCTV)

    Yes: if they require human input

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