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7.1 Trial and Hearsay - Coggle Diagram

- - - - The prosecution must serve notice not more than:
        
        20 business days after a not guilty plea in the MC; or
        
        10 business days after a not guilty plea in the CC
        
        A D must serve notice ASAP
- - - - S.116 reads:
        116 Cases where a witness is unavailable
        
        (1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if -
        
        (a) oral evidence given in the proceedings byt he person who made the statement would be admissible as evidence of that matter,
        
        (b) the person who made the statement (the relevant person) is identified to the court's satisfaction, and
        
        (c) any of the 5 conditions mentioned in subsection (2) is satisfied
        
        S.116 requires that the maker of the statement is identified, so it cannot be used to introduce anonymous hearsay.
        
        It does not allow in evidence that would have been inadmissible in live evidence, such as evidence of bad character that is not admissible through 1 of the gateways in ss.100 or 101
      - (2) The conditions are:
        
        (a) that the relevant person is dead;
        
        (b) that the relevant person is unfit to be a witness because of his bodily or mental condition;
        
        (c) that the relevant person is outside the UK and it is not reasonably practicable to secure his attendance;
        
        (d) that the relevant person cannot be found although such steps as it is reasonably practicable to find him have steps been taken;
        
        (e) that through fear the relevant person does not give (or does continue to give) oral evidence in the proceedings, either at all or in connection with the subject matter of the statement, and the court gives leave for the statement to be given in evidence
        
        Unfitness to be a witness (S.116(2)(b)):
        
        Unfitness of a person to be a witness because of their bodily or mental condition refers not to their fitness to physically attend court, but to their ability to give evidence once there.
        
        There's no requirement that the condition that makes a person unfit should be a medical condition. Trauma of having been the victim of a sexual assault can quality
        
        Witness outside the UK and it is not reasonably practicable to secure attendance (S.116(2)(c)) AND Witness cannot be found (S.116(2)(d)):
        
        In deciding whether its reasonably practicable for the witness to attend or whether steps taken to find the witness were reasonably practicable,
        
        Court must consider normal steps taken to secure the attendance of a witness. Costs is a relevant factor and must be balanced against the importance of the evidence that the witness would give
        
        Subsection 116(2) should be read as referring to the impracticability of securing the attendance of the witness either in person or by videolink
        
        Fear:
        
        S.116
        
        (3) For the purposes of subsection (2)(e) "fear" is to be widely construed and (for example) includes fear of the death or injury of another person or of financial loss
        
        (4) Leave may be given under subsection (2)(e) only if the considers that the statement ought to be admitted in the interests of justice, having regard:
        
        a) to the statement's contents,
        
        b) to any risk that its admission or exclusion will result in unfairness to any party to the proceedings (and in particular to how difficult it will be to challenge the statement if the relevant person does not give oral evidence),
        
        c) in appropriate cases, to the fact that a direction under S.19 of the Youth Justice and Criminal Evidence Act 1999 (c.23) (special measures for the giving of evidence by fearful witnesses etc) could be made in relation to the relevant person, and
        
        d) to any other relevant circumstances
        
        There's no requirement that the fear felt by the witness should have been caused by D
        
        Authorities differ as to how court should approach enquiry as to whether the reason for the absence of a witness is fear
        
        When police officers want to persuade a witness to attend court and give evidence, they should not give witness any assurance that their statement will be read in court if they are afraid to attend
        
        This will provide witness with obvious incentive that they are in fear
        
        Court must be satisfied to criminal standard that witness won't give evidence through fear
        
        Must have causative link between fear and failure to give evidence must be established
        
        Intimidation:
        
        Sellick [2005] - CA made clear that where intimidation of a witness by a D is either clearly proved or the court believes to a hgih degree of probability that that is the case, D cannot complain that right to a fair trial has been infringed on the basis that defence was able to cross-examine the witness.
      - Business documents etc
        
        S.177 CJA 2003 reads (in part):
        
        (1) In criminal proceedings a statement contained in a document is admissible as evidence of any matter stated if:
        
        (a) oral evidence given in the proceedings would be admissible as evidence of that matter,
        
        (b) the requirements of subsection (2) are satisfied...
        
        (2) The requirements of this subsection are satisfied if:
        
        (a) the document or the part containing the statement was created or received by a person in the course of a trade, business, profession or other occupation, or as the holder of a paid or unpaid office,
        
        (b) the person who supplied the information contained in the statement (the relevant person) had or may reasonably be supposed to have had personal knowledge of the matters dealt with, and
        
        (c) each person (if any) through whom the information was supplied from the relevant person to the person mentioned in para (a) received the information in the course of a trade, business, profession or other occupation, or as the holder of a paid or unpaid office
        
        (3) The persons mentioned in para (a) and (b) of subsection 2 may be the same person
        
        The wording of S.117(2)(a) is a wide enough to ensure that the section covers a lot of documents that are not in any sense business documents
        
        It covers e.g.
        
        medical records; and
        
        any statement written down by a police officer in the course of duty
        
        Documents prepared for criminal proceedings:
        
        There's extra rules that apply to documents prepared for the purposes of pending or contemplated criminal proceedings
        
        Subsections (4) and (5) of S.117 require that for those documents to be admisible, either:
        
        1 of the 5 conditions mentioned in S.116 is satisfied; or
        
        the person who supplied the information contained in the statement cannot reasonably be expected to have any recollection of the matters dealt with in the statement (having regard to the length of time since the information was supplied and all other circumstances
        
        Question of whether or not a document was prepared for purposes of pending or contemplated criminal proceedings is usually easy to answer once circumstances in which the document was made are known
        
        Generally all witness statements and all entries in police notebooks made in the course of an investigation into an alleged offence will fall within the definition
    - - S.114(1)(d) CJA 2003 allows admission of hearsay evidence where court is satisfied that its in the interest of justice to do so
        
        S.114(2) requires court when deciding whether its in the interest of justice to admit evidence of the following (and anything considered relevant
        
        (a) how much probative value the statement has (assuming it to be true)
        
        (b) what other evidence has been, or can be given on the matter or evidence mentioned in para (a)
        
        (c) how important the matter/evidence mentioned in para (a) is in context of the case as a whole
        
        (d) circumstances in which the statement was made
        
        (e) how reliable the evidence of the making 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) extent to which that difficulty would be likely to prejudice the party facing it
        
        Application of S.114(1)(d) should be approached with caution. Cannot be used of getting round the failure of a particular piece of evidence to fit into any of other exceptions to the exclusionary rule
        
        e.g. prosecution tried using S.114(1)(d) when witness was reluctant to come to court to give evidence because she did not want to relieve trauma of sexual assaults that would've been subject of her evidence. CA held that prosecution was trying to circumvent S.116 (which does not recognise that reason for admitting hearsay evidence)
        
        Where the Crown has failed to take reasonable steps to find a witness or to secure witness's attendance, so that S.116(2)(c) or (d) cannot be used, they cannot fall back in S.114(1)(d) and say that evidence should be admitted in the interests of justice
- - - - R v Andrews [1978]
        
        Res gestae rule does not require that the statement is made as part of the action of the offence. What is required is that the possibility of concoction can be excluded
        
        Court must be satisfied that:
        
        event to which the statement relates was so unusual or startling or dramatic as to dominate the thoughts of the victim so that the utterance was an instinctive reaction to that event
        
        Statement must be made at a time when the mind of the person making the statement was still dominated by the event
        
        Where res gestae evidence is admitted, it must be made clear to the jury that they must be satisfied that there was no mistake on the part of the witness
        
        They must be satisfied with the concoction on the part of the maker of the statement
        
        Where there are special features that bear on the possibility of mistake, the attention of the jury must be drawn to them
      - Domestic violence:
        
        Res gestae exception may provide the prosecution with an alternative to S.116(2)(e) as a way of admitting the evidence of a complainant who does not give evidence at trial
        
        For instance, what is said by the complainant in a 999 call or to officers immediately after the alleged incident could be admissible as res gestae evidence