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HEARSAY (IS IT ADMISSIBLE?
only if it passes any of the 4 gateways in S…
HEARSAY
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DISCRETION TO EXCLUDE
If the hearsay evidence is admissible, on what basis may the court exclude it?
S.126(1)(a) states that S.78 PACE can be used in relation to hearsay evidence - if admitting the evidence would have such an adverse effect upon the fairness of proceedings that the court ought not to admit it.
Note: s.78 PACE states that the court has a discretion to exclude PROSECUTION evidence if admitting the evidence would have such an adverse effect upon the fairness of the proceedings that the court ought not to admit it
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S.126 (1)(b) - if the case for excluding the statement , taking into account the danger that to admit it would result in undue waste of time, substantially outweighs the case for admitting it , taking account the value of the evidence.
S.125 - Judge has power to stop a case if it is based on hearsay evidence and the evidence is unconvincing.
IS IT HEARSAY?
IS IT A STATEMENT?
S.115(2) CJA 2003
A statement is any representation of fact or opinion made by a person by whatever means; and it includes a representation made in a sketch, photofit or other pictorial form.
IS IT AN OUT OF COURT SETTLEMENT?
S.114(1) CJA 2003
statement not made in oral evidence in the proceedings
PURPOSE OF THE MAKER
S.115(3)
was the purpose, or one of the purpose of the person making the statement to cause another to believe the matter stated or to cause another to act or a machine to operate on the basis of the matter stated?
WHAT IS THE PURPOSE OF YOU SEEKING TO ADMIT THE STATEMENT AS EVIDENCE?
- Is it vital to examine why the party seeking to adduce the evidence seeks to use it. What is it being used to prove?
- Is it being used to prove the truth of any matter stated or for some other reason?
If the statement is used to prove the truth of a matter stated in it, The Statement is Hearsay. Continue to consider whether it is admissible.
If statement used for another purpose eg
- to prove that the words were said,
- to show state of mind of the maker
- to show state of mind of hearer
- implied assertions - R v Twist
It is not hearsay, it is original evidence.
admissible subject to relevanceR v Twist 3 Qs
- What is the relevant fact or matter it is sought to prove?
- Is there a statement of that fact or matter in the communication? If not, its not hearsay
- Was one of the purpose of the maker of the communication to that recipient , or any other person should believe that matter or act upon it? If yes, its hearsay.