Evidence - hearsay
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(pre 2003) Someone else had confessed to the offence D was charged with. Inadmissible hearsay.
(pre 2003) Microfilms of car manufacturer's records were inadmissible hearsay, although reliable
Myers v DPP
(pre 2003) 17 people called at D's house to buy drugs while police officers were there. Their statements could not be used to show that D was a dealer - hearsay.
Kearley (implied assertions)
(pre 2003) 4 year old was assaulted. She told her mother that the attacker was coloured (D was white). This was hearsay and inadmissible.
(pre 2003) Witness saw registration number of vehicle and told police officer, who wrote it down but did not get witness to verify it. Notes were inadmissible hearsay.
A diary was not hearsay, because it had not been intended to be read by anyone else.
Recorded conversation about the price of drugs (mentioning D's name)
MK (2008) - not hearsay, the purpose of the conversation had not been to make anyone believe that MK was the supplier, it had been to find out the price of drugs
Hearsay evidence of anonymous witnesses is completely inadmissible
If evidence is admitted under s.116, the judge must explain to the jury that they should place less weight on it because it cannot be subjected to cross-examination
s.116 (physical or mental condition) 79 yo victim did not have to testify because there was medical evidence that she might suffer blindness or a stroke if she did
s.116 (outside the UK) 'attendance' includes attendance by video link
s.116 (witness cannot be found) a phonecall and a voicemail message were not 'such steps as is reasonably practicable to find him'
(pre 2003) s.116 (fear) witness was apprehensive about testifying. This was not 'fear' under the Act
s.116 (fear) the CofA said that the judge had to balance the subjective element of fear with the objective element of fairness - the trial judge was in the best position to make this assessment
Overruled case - statement made by victim a few minutes after her throat was cut was not admissible under res gestae
Res gestae leading case - victim was stabbed and shortly after gave D's name to police.
Andrews - the event that gave rise to the statement must have been so dramatic that the victim's statement was an instinctive reaction
Res gestae was defined to include events preceding the event, provided the event was intense and stressful enough to guarantee honesty
Rattan - phone call by D's wife to emergency services shortly before she was shot would have been admissible as res gestae (but it was actually admitted as original evidence)
Girl's call to the police was not admissible as res gestae, because she had spoken to multiple people between the event and the phonecall
Res gestae - victim was drunk and had a strong Scottish accent. His statement was still admissible under res gestae.
Res gestae should not be used to avoid calling a witness who was available
AG's Ref (No 1 of 2003)
Res gestae (statement with accompanying act) example of case
McCay - police officer gave evidence that witness had pointed at eighth person in identification parade and said 'it is number 8'
Statement of intention can only sometimes come under res gestae (two cases)
- Wainwright - victim made statement that she intended to visit D. Not admissible, it was just a statement and may not have been carried out.
- Buckley - police officer said he was going to go and look for D. This was admitted.
It was said that s.114(1)(d) (in the interests of justice) should not be used to avoid the stricter requirements of the other gateways
The ECtHR said that a conviction will not be fair if based mainly on evidence that the defendant has not had a chance to question
PS v Germany - this has been rejected by the CofA
Why did the English courts reject the ECtHR conclusion that a conviction should not be based mainly on evidence that the defendant has not had a chance to question? (2 reasons)
- The law allows for the reliability and credibility of hearsay evidence to be tested in other ways
- The jury is capable of assessing the relative weight of hearsay evidence
In what case was it held that the UK did not automatically breach Art 6 where a verdict rested substantially on hearsay evidence?
Al-Khawaja and Tahery (2011)
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