Evidence - Hearsay
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Hearsay - Definition
- (1) A statement made otherwise than by a person while giving oral evidence in the proceedings which is tendered as the matters stated (s 46 EO)
- (2) Out of court statement (oral or written) that is being adduced in the court by another person with the aim that the contents of the statement are accepted as being true
- GENERAL RULE - Hearsay is Inadmissible
- However there are exceptions and the key factor is reliability of the evidence
- (1) I the evidence a statement or some form of assertion (i.e. question)
- (2) Was the the statement made other than as testimony in the current case? (i.e. not in the court room)
- (3) Is the statement being used as evidence of any fact asserted - ie to prove a fact simply by accepting the statement as being true
- If answer on all 3 questions YES - the statement is hearsay.
- If the answer is NO to any question, then whether evidence will fall under exception or not depends to what question the answer in NO.
- (1) Woodhouse v Hall - D was charged with management of brothel. There was a doubt wether repeated statement of the prostitutes was hearsay. But as soon as it was necessary to prove that the sex is offered there, repeated statements of prostitutes were considered as original evidence.
- (2) Mawaz Khan v R - murder trial. Co-D stated that they were in night club during the murder. Police spoke with people which were in the same club that time. they told police that Co-D were nit in club. Hearsay? No as soon as it was considered that Co-D CLAIMED that they were in night club, police wanted to prove that the CLAIM is lie and therefore repeated statements of the clients of the club is fine.
- Kearley - when police was in the house of D many people called by phone and asked for drugs. Hearsay? P has to prove intent to supply drugs. P relied on police repeating what client of D were telling by telephone. If these people can say the same in the court - original evidence, but as soon as they cannot come this is implied hearsay (because the truth which which these statements intended to prove is implied truth) Highly critisised as evidence is not reliable.
- Followed in HK Ng Kin Yee - D was charges in receiving bets in home. Lots of people was calling and asked whether they can place bets. But it was considered as implied hearsay (as police tried to prove that D taken bets, but not received)
- Or Suen Hong - fixed mistake of police above and statements of the betters were considered as evidence but not hearsay.
- Oei Hengky Wityo v HKSAR (No 2) - bets on soccer matches. Distinction between original evidence and implied hearsay. If this a document is record of bets, this is enough and no need to look whether bets were received or not.
Representations by machines
Court will look on level of human involvement and as more human involvement as more chances that the document is hearsay. (R v Spiby)
- Negative Statement of the person about some fact . Normally will be negative hearsay.
- when there is a system of recording events and event is missing in the record this will be evidence.
- R v Patel - needed to prove whether person is in UK. Electronic record was considered as evidence, but not hearsay as system existed to record people going in and out of UK.
- HKSAR v Shum Yu Kin - shoplifting in the supermarket. Alarm was sound and this evidence was admissible.
- Statute - s 70A of EO.
Common law exceptions to the rules against hearsay
- Declarations against interest
- Dying Declarations
- Res Gestae
- - statements contemporaneous to an emotionally overpowering event
- - contemporaneous statement accompanying an act
- - contemporaneous statement relating to maker's physical or mental state
- Evidence of prior identification
Declarations against interest (Common law exception to the rules against hearsay)
- The exception applies where a now dead person has made a statement against their
- - pecuniary (owes money) , or
- - proprietary (property) interest
- Must be against interest at the time when it was made
- Deceased must have known that the declaration is against interest at the time when it was made
Dying Declaration (Common law exception to the rules against hearsay )
- Declarant on their deathbed.
- - Declarant must be dead
- - Re murder of manslaughter
- - Declaration must relate to the cause of death (declarant must be a victim)
- - Declarant must be a competent witness (i.e. he must be dead at the moment of trial)
- - There was a settled, hopeless expectation of death (R v Bedingfield)
- - The declaration must be complete (Waugh v R)
- All of the above should be satisfied.
- The evidence must be adduced by the person to whom it was made.
- Jury must be warned about such kind of evidence (Nembhard v R)
Res Gestae (Common law exception to the rules against hearsay)
Things done. Facts surrounding the particular event which is subject to the legal proceedings. The main issue to be adhered is that the statement should be contemporaneous.
3 types of Res Gestae
- (1) Statement contemporaneous to to an emotionally overpowering event
- R v Andrews - 2 men entered into the V apartment and stubbed him. Then 2 D came to other flat. V was able to identify them and then died.
- Test : whether risk of concoction or distortion can be disregarded. 4 factors should be considered:
- - Unusual or dramatic event
- - The event dominated the thoughts of maker of the statement
- - As a result of domination - the statement was instinctive reaction on the event
- - The statement approximately contemporaneous to the event
- What does contemporaneous mean:
- Ratton - D was charged with shooting his wife. About the the time when it happened V called the police and was threatened. As soon as it was sufficiently contemporaneous
- (2) Contarporaneous statement accompanying an act. Must be:
- - Approximately contemporaneous to the act
- Bliss - D intended his statement to explain his action
- - Made by the person performing the act
- - The act itself should be relevant to the subject matter of the case
- (3) Contemporaneous statement relating to the maker's physical or mental state
- Horsford - deceased told a doctor that he can take a poison sent by D. The statemnt was confirming only mental state but no the cause of the state.
- Gilfoyle - D killed his wife, but he had a defense note wrote by the wife before suicide. But the note was wrote as part of her learning course and therefore her mental state was not as he claimed to be.
Evidence of prior identification (Common law exception to the rules against hearsay)
- When person identified someone in ID parade. W will not be allowed to give evidence by themselves. There must be additional evidence of Police officer. But the problem will start to appear when (a) person is not able to testify in court or (b) witness forgot whom did he picked during ID parade. Then P will want police officer to give evidence regarding the person which was identified during ID parade.
- Options in such a case:
- (a) Res gestae. If someone points someone and makes a res gestae evidence and police officer will give evidence about what he saw (as part of res gestae evidence)
- (b) Dock ID. If it done and consistent with results of ID parade it will be admissible as evidence confirming ID parade identification.
- HOWEVER if person cannot remember results of ID parade? R v Osbourne and Virtue - W cannot remember the person they picked in ID parade. Court allowed police officer to pick the person which was identified by W during ID parade.
- HKSAR v Lam Wai Leung - confirmed Osbourne and Virtue (but this approach is not being followed in all the Common law jurisdictions.
Statutory exceptions to to the rules against hearsay
- (1) Negative assertions (17A EO)
- (2) Bank records (19B EO)
- (3) Documentary records Complied by the person under duty (22 (1)(a) 22(1)(c) EO)
- (4) Computer records (22A EO)
- (5) Agreed written statements (65BEO)
Answer on problem question - Hearsay
- Give definition of hearsay (in criminal cases - common law definition) (out of court statements (written/oral/gestures) made by another person which are repeated in court to prove the contents of the statement made by the another are true)
- - General rule - inadmissible
- - List out the exceptions (common law / statute)
Structure of answer - main part
- identify the statement
- - was the statement made of court (i.e. other than oral testimony in the current case)
- - why is the statement being produced / what is the purpose? As proof of the facts stated i.e. as too the the truth of the statement?
- - if the purpose of adducing the statement is not as to the truth, then identify what is the nature of the statement is!
- - if it is hearsay and prima facie is inadmissible does common law exceptions apply?
- - deal with authorities to illustrate
- - any exceptions under statute?
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