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Supervision 7 - Hearsay The rule excluding previous consistent statements
? Witness was normally forbidden from invoking previous consistent statements to corroborate his testimony. o Now subject to three common law exceptions, to which CJA 2003 adds. Exception 1: Complaints by victims (CJA 2003, s.120(4), (7) and (8))
? Complaint must relate to an offence that is the subject of the proceedings. o Must be made by victims of offences actually charged in indictment.
? Complaint must relate to 'conduct which would, if proved, constitute the offence or part of the offence (s.120(7)(c)).
? Before statement is adduced victim gives oral evidence in connection with its subject matter (s.120(7)(f)). o Complaint must be 'sufficiently consistent' (ES).
? Complaint does not necessarily have to be made to another person (M).
? No time limit on when complaint has to be made (as amended by Coroners and Justice Act 2009).
? Multiple complaints can be admitted (PK and TK).
? Complaint cannot have been elicited by threat or a promise (s.120(8)).
? Failure to give judicial direction will not always be fatal (Berry).
? These rules only apply if complaints adduced by the Crown. Exception 2: Rebutting suggestions of concoction or afterthought (CJA 2003, s.120(2)
? Evidence may be adduced to show that witness has not concocted his testimony.
? No statutory requirement that concoction must have been recent (Athwal). Exception 3: Res gestae
? Evidence may be admissible if the statement: (s.118, r.4) o Was made by a person so emotionally overpowered at the time o Accompanied an act which can be properly evaluated as evidence only if considered in conjunction with the statement, or o Relates to a physical sensation or mental state. Exception 4: Previous statements of a party identifying or describing a person, object or place (CJA 2003, s.120(5))
? Witness needs to indicate that the statement is, to the best of his belief, true.
? Description or identification needs to be put in relevant context (Chinn). Exception 5: Supplementing deficiencies in the memory of witness (CJA 2003, s.139 and 120(6))
? Refreshing of memory restricted to written documents (s.139(2)). o Transcript from sound recording acceptable.
?Opposing party can cross-examine witness on document (s.120(3)). If witness regains no recollection of the event, can testify that statement is true (s.120(4) e.g. Chinn).
? Witness must show that he could not reasonably have been expected to remember the events (s.120(6)). o Imperfect recall sufficient.
? Has to satisfy judge that memory would have been significantly better when statement was made (McAfee). o Holistic analysis (Chinn).
? Statement should not accompany jury in deliberation under s.122 unless strictly necessary (Hulme). Statements made by the accused when first taxed with incriminating facts
? Accused's statement is admissible showing his reaction, but not the facts (Hamilton and Lewis).
? If accused tenders statement with assistance of lawyer, court can refuse to admit it as evidence of accused's reaction (e.g. Newsome). The rule against hearsay
? Worthern criticises statute as being too complex and uncertainty in the scope of the discretions. o Suggests single rule tending towards exclusion or admission with list of factors to consider.
? Birch and Hirst argue that legislation only solves Kearley (buy drugs - intent to supply) problem in relation to hearsay, not relevance. Also criticises decision in Leonard (quality of drugs - drug dealer). o Argued that the evidence in Kearley was fundamentally irrelevant.
? Spencer agrees with adopting Auld's best evidence principle. Implied assertions
? An implied assertion was a piece of evidence that the law treated as though it was a direct statement upon whose truth a party intended to rely.
? Such evidence not admitted in Kearley despite its patent usefulness. What constitutes hearsay?
? Hearsay is a statement not made in oral evidence (s.114(1)). o A 'statement' is any representation of fact or opinion made by a person by whatever means (s.115(2)). o Statement not given in oral proceedings containing evidence of a matter stated.
? A statement is to be treated as hearsay only if 'one of the purposes, of the person making the statement appears to the court to have been to cause another person to believe the matter' (s.115(3)(a)). o Leonard conflates the issue in the case and the purposes of making the statement. What is the prosecution seeking to rely on?
? In Twist, court spelled out the method to be employed in resolving such questions (relating to the content of telephone calls and texts): o Identify what relevant fact it is sought to prove;
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