Hearsay Notes

HEARSAY

WHAT IS HEARSAY?

• definition

  • statement (fact / opinion, no matter how made)

  • made otherwise than by person while giving oral testimony in court

  • tendered as evidence of the truth of its contents (r33.1)

• distinction between hearsay + real evidence

  • real evidence (physical objects produced for inspection by court) = admissible

  • distinction = fine re: printouts + recordings made by machines

    • at common law regarded as real evidence

    • BUT may seen as evasion of notice procedure under CEA 1995

WHEN IS HEARSAY ADMISSIBLE? (CEA 1995)

• general rule

  • all hearsay admissible (even multiple)

  • only question is its weight

• when is hearsay INadmissible?

  • incompetence + hearsay

    • hearsay shall NOT be admitted if and to the extent that:

1. it comprises a statement of a person who would NOT be a competent witness; OR

2. it is to be proved by a person who is NOT a competent witness

   • incompetence = inability to understand oath

(N.B. children which an give unsworn evidence but understand duty to tell truth + have sufficient understanding to justify evidence being given NOT incompetent)

• previous consistent statements

  • party which has called / intends to call person as witness may NOT also adduce previous consistent statements made by that witness

  • exceptions:

1. court grants permission (usually NOT granted)

   • may grant if passage of great deal of time / onset of illness / earlier statement not contemporaneous enough to be used as memory-refresher

2. to rebut an allegation in XX that witness's evidence fabricated

3. does NOT preclude witness adopting exchanged statement as EIC (s6(2))

• what does CEA NOT affect?

  • hearsay evidence may be excluded on a ground other than hearsay e.g. irrelevant, non-expert opinion (s14(1))

  • does NOT expand:

1. circumstances previous inconsistent statements may be put in XX

2. degree to which party may XX hostile witnesses (s6(3))

   • statutory exceptions to the hearsay rule imported from common law (s7(2), (3))

1. published works on matters of a public nature

2. public documents e.g. official registers

3. records of certain courts, treaties, pardons

4. reputation adduced to establish good / bad character

5. reputation / family tradition on a question of pedigree

6. reputation / family tradition on existence of a public / general right OR to ID a person / thing

PRE-TRIAL STEPS FOR RELYING ON HEARSAY

• notice of intention to rely on hearsay evidence

  • party intending to rely on hearsay at trial must serve hearsay notice on other side in advance of trial (CEA 1995 s2)

  • form of notice

1. hearsay given in oral evidence = serve WS on other parties (r33.2(1)(a))

2. hearsay contained in a WS of a person who is NOT being called = serve WS on other parties (r33.2(1)(b)) AND inform other parties witness will NOT be called + reasons (r33.2(2))

3. hearsay in all other cases = serve notice on other parties:

   1. IDing hearsay

   2. stating party serving intends to rely at trial +

   3. giving reason why witness will NOT be called (r33.2(3))

   • timing of notice

     • must serve no later than latest date for serving WSs + (if hearsay is in document) supply copy to any party who requests

   • when hearsay notice NOT required

1. evidence at hearings other than trials

2. affidavit / WS which is to be used at trial but does NOT contain hearsay; or

3. where excluded by a PD

   • failure to serve hearsay notice either not in time / not at all

     • does NOT affect admissibility BUT may attract adverse costs order / adversely affect weight of evidence (s3 CEA 1995)

   • business document certificates (s9 CEA 1995)

     • should also serve hearsay notice for business / public authority documents to be served in evidence without further proof (see SGS 11)

• actions where a party proposes to rely on hearsay BUT does NOT propose to call original statement maker

  • application for permission XX on hearsay evidence

    • where a party proposes to rely on hearsay + does NOT propose to call original statement maker court, any other party can apply XX the statement maker on the contents of the statement (CEA 1995 s3, r33.4(1))

    • the application

      • must issue application notice (+ consider written evidence, though NOT mandatory) within 14 days after service of hearsay notice (r33.4(2))

      • who can apply

        • usually exercised...

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