Usman Zafar
Mind Map by , created over 5 years ago

Mind Map on Hearsay, created by Usman Zafar on 05/02/2014.

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Usman Zafar
Created by Usman Zafar over 5 years ago
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Hearsay
1 Examples
1.1 Sparks v R - it was a coloured boy.
1.2 Subramiam - evidence of threats to show reasons for action and not facts of the matter
1.3 Patel v Controller of Customs - cournty of origin label is hearsay.
1.4 R v Gibson - unidentified woman pointing to accused
1.5 Ratten v R - phone call to police by wife not hearsay but to show state of mind of the victim
2 Justification
2.1 not under oath so no appreciation that they are required to tell the truth
2.2 no oppurtunity for cross examination - it is a defendants right
2.3 risk of errors in transmission - distortion of tone, emphasis or exaggaration may convey a misleading impression
2.4 easy to manufacture a statement
3 definition
3.1 'an assertion other one made by a person while giving oral evidence in the proceedings which is tendered as evidence of the matters stated - R V Sharp
3.2 evidence by a witness of what another person stated on a prior occassion is inadmissible as evidence for the purposes of proving that any fcat stated by that person on such prior occassion is true, but is admissible for any other relevsnt person. (Murphy on Evidence)
3.3 made by a person not in court which is repeated in court - for the purposes of proving that the statement is true
4 Implied assertions - R v Kearley states they are hearsay - s.115 (3) says they are not but probable limited application
5 civil evidence act 1995 s.1 ... evidence shall not be excluded on the grounds that it is hearsay.
5.1 in this act, hearsay means a statement made otherwise than by a person while giving oral evidence in the proceedings which is tendered as evidence of the matters stated
6 CJA 2003 s.114: hearsay only admissible if:
6.1 (a) any provision of this chapter or any othe statutory proviison makesit admissible
6.1.1 main exceptions to found in s.116 and 117
6.1.1.1 116 - where witness is unavailbale, the eprson who made the statement is identified to the courts satisfaction and subject to 5 condtions
6.1.1.1.1 dead
6.1.1.1.2 unfit because of bodily or mental condition
6.1.1.1.3 outside of UK and not reasonably practicable to secure attendance
6.1.1.1.3.1 R v Casstillo: number ofactors including how prejudicail to the defendant and the reaons for non attendance and expense and inconvenience
6.1.1.1.4 although reasonably practicable steps have been taken, the perosn cannot be found
6.1.1.1.5 through fear, the relevant person does give or does not continue to give oral evidence in the proceedings and the court gives leave for the statement to be given into evidence
6.1.1.1.5.1 R v Martin: sufficiently wide to cover even mistaken belief; words are expressing in extremely wide form designed to combat an evil
6.1.1.1.5.2 R v Docherty: the judge must perform a balaicg exercise of prejudice to prosectuion and defence
6.1.1.2 117 (2)- business and other documents - admissible if recieved or created during the course of a trade, business, profession or other occupation, or as the holder of a paid or unpaid office; he had or may reasonably be supposed to hvae had some perosnaledge of the matters ... each perosn to whom the information was supplied must hvae recieved in the course of trade etc
6.1.1.2.1 117 (4) and (5) obtained for puroses of a pending or contemplated criminal proceedings or for a criminal investigation any of the five conditions of s.116(2) are satisfied or relevant person cannoth be reasonbly expected to have recollction (length of time and all othe circumstances wsince when he supplied statement
6.2 (b) any rule preserved by s.118 makes it adissible
6.2.1 118 (1) public owrks e.g. history books, scientific works, dictionaries, maps, registers, records of courts, evidenc realting to age, family tradition, character evidence, confession evidece, expert evidence, evidence of common enterprise
6.2.2 s.118 (4) Res gestae ... statement made when individual was so emotionally overpowered by an event that the possibility of concontion or distortion can be disregarded...or the statement the statement accomapnied an act which can be properly evaulated as evidence only if considered in conjuction with the statement ... or the statement relates to physical sensation or mental state such as intention emtotion
6.2.2.1 R v Andrews ... few minutes after being stbbed he identifies attacker to police officer ... instinctive, spontaneous response to a startling or dramatic occurence in which the victim had been deeply involved ... judge must be satisfied there was no possibility of malice
6.2.2.2 R v Nye & Loan - after an RTA - was there any real possibility of error?
6.2.2.3 Tobi v Nicholas: 20 mins after a relatively minor RTA ...must dominate the mind of the perosn making the statememtn ... must be startling or dramatic ...
6.2.2.4 R v Carnall ... murder victim crawling for one hour ... any real possibility of concoction or distorion
6.2.2.5 R v McCay: indentification of witness at witness parade ... statement accompanied a relevant act and eas necessary to explian that act ... relevant identity ofassailant and not identification of suspect by witness
6.2.2.6 R v Moghal - declared intent to murder at family conference six months earlier
6.2.2.7 R v Gilfoyle: fabricated suicide note ... state of mind.
6.3 (c) all parties agree to it being made admissible.
6.3.1 Would arise where a witness statement is presented into evidence under CJA 1967 s.9
6.3.1.1 written statement admissible if: statement signed by person who made it, contains declaration that its true to the best of his belief, the statement is tendered before proceedings and none of the parties within seven days objects.
6.4 (d) the court is satisfied that is in the interests of jsutice for it to be admissible
6.4.1 (114(2) court must have regad to following factors and any others it considers relevant: probative value; how valuable is it to understand other issues in the case; how important is the other evidence in the context of the case as a whole; circumstances in which statement was made; reliability of maker and statement; oral evidence can be given? if not, why not? anount of difficulty involved in challenging statement; extent to which that difficulty would prejudice party facing it.
6.4.1.1 R v Musone - hearsay evidence of other prisioner admitting guilt.
6.4.1.2 R v GJ ... allegations of abuse in family
7 S.116 issues
7.1 Enter text here

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