Hearsay: Common Law Exceptions Preserved by CJA 2003 s.118 in Criminal Proceedings

1. Hearsay: Common Law Exceptions Preserved by CJA 2003 s.118 in Criminal Proceedings

2. WE WILL CONSIDER FOUR EXAMPLES OF COMMON LAW HEARSAY EXCEPTIONS These take the form of four classes of hearsay statement which are sometimes said to “form part of the res gestae” The relevant hearsay exceptions are preserved by CJA 2003 s.118(1) 4 Apart from these four hearsay exceptions, section 118 also preserves a variety of other common law hearsay exceptions

3. STATEMENTS FORMING PART OF THE RES GESTAE: FOUR TYPES OF STATEMENT Statements made by persons emotionally overpowered by events Statements relating to their makers’ contemporaneous physical sensations Statements concerning their makers’ contemporaneous mental states Statements accompanying their makers’ contemporaneous actions

4. STATEMENTS MADE BY PERSONS EMOTIONALLY OVERPOWERED BY EVENTS In order for the statement to be admissible the maker’s thoughts must have been so dominated by the event when he made the statement that the possibility of concoction or deliberate distortion can be disregarded The judge must take into account both evidence which gives rise to the possibility of deliberate concoction or distortion (e.g. bias) and evidence giving rise to the possibility of error (e.g. that the maker was drunk when he made the statement)

5. STATEMENTS MADE BY PERSONS EMOTIONALLY OVERPOWERED BY EVENTS CONTINUED The fact that the unusual, startling or dramatic event took place cannot be proved solely by the statement The maker of the statement will usually be the victim but could be a third party or even the accused The exciting event need not be the commission of the offence itself

6. STATEMENTS MADE BY PERSONS EMOTIONALLY OVERPOWERED BY EVENTS CONTINUED • If the statement is admitted the jury must be directed that they must be sure both that the witness was not mistaken and, unless there is no realistic possibility thereof, that there was no deliberate concoction or distortion.

7. Zoë is walking along a street with Freda when a man runs up to Freda, stabs her in the chest and runs away. Before Freda dies she tells Zoë that the man who stabbed her was her ex-husband, Albert. Freda hated Albert and had been drinking heavily shortly prior to the stabbing. The prosecution intend to rely on the statement to prove that Albert stabbed Freda. Which is/are true? (i) The statement is a hearsay statement (ii) The statement appears to be admissible at common law, as forming part of the “res gestae” (iii) The judge (and jury if the statement is admitted) should consider Freda’s bias and heavy drinking.

8. ANSWERS (i) The statement is a hearsay statement (ii) The statement appears to be admissible at common law, as forming part of the “res gestae” (iii) The judge (and jury if the statement is admitted) should consider Freda’s bias and heavy drinking. They are all true.

9. Horace walks into Wasim’s office and calmly tells Wasim that he has just been punched in the face by Andy. Wasim heard no signs of a struggle and Horace’s face is unmarked. The prosecution intend to rely upon the statement to prove that Andy punched Horace. Which is/are true? (i) The statement is a hearsay statement. (ii) The statement is clearly admissible at common law, as forming part of the “res gestae”

10. ANSWERS (i) The statement is a hearsay statement. (ii) The statement is clearly admissible at common law, as forming part of the “res gestae” (i) is correct.

11. STATEMENTS RELATING TO THEIR MAKERS’ CONTEMPORANEOUS PHYSICAL SENSATIONS Admissible to prove that maker experienced a physical sensation (e.g. a pain) Not admissible to prove the cause of the physical sensation Not admissible if existence of physical sensation and making of statement were not contemporaneous (though contemporaneity is a question of fact and degree)

12. (i) The statement appears to be admissible at common law, as forming part of the “res gestae”, to prove that V had a pain in his chest at the relevant time (ii) The statement appears to be admissible, at common law, as forming part of the “res gestae”, to prove that the pain started after V drank tea made for him by D. V staggers into W’s house and tells W that he has had a terrible pain in his chest for several hours and that the pain started shortly after he drank a cup of tea that D had made for him. V then died. The prosecution allege that D poisoned V Which is/are true?

13. ANSWERS (i) The statement appears to be admissible at common law, as forming part of the “res gestae”, to prove that V had a pain in his chest at the relevant time (ii) The statement appears to be admissible, at common law, as forming part of the “res gestae”, to prove that the pain started after V drank tea made for him by D. (i) is true.

14. STATEMENTS CONCERNING THEIR MAKERS’ CONTEMPORANEOUS MENTAL STATES Admissible to prove maker’s state of mind (e.g. knowledge, belief or intention) Not admissible to prove truth of maker’s beliefs (e.g. that what he believed to be true was true) Not admissible if existence of state of mind and making of statement were not contemporaneous (though contemporaneity is a question of fact and degree)

15. STATEMENTS CONCERNING CONTEMPORANEOUS MENTAL STATES CONTINUED Only admissible if maker’s state of mind is a fact in issue or relevant to a fact in issue It is arguable that statements of intention may be admissible not only to prove state of mind but also to prove that intention was carried out Evidence of a statement made by A to B may be admissible as original (i.e non-hearsay) evidence of B’s state of mind where the issue before the court is whether B believed A

16. In 2005, Wilf tells Jim that he hated Colin so much in 1980, when Colin stole Wilf’s girlfriend, that he intended to kill Colin. In 2006, Colin is murdered. The prosecution intend to rely upon the statement to prove that Wilf hated Colin and intended to kill him. True/false? The statement appears to be admissible at common law, as forming part of the res gestae, to prove that Wilf hated Colin and intended to kill him.

17. ANSWERS The statement appears to be admissible at common law, as forming part of the res gestae, to prove that Wilf hated Colin and intended to kill him. False.

18. STATEMENTS ACCOMPANYING THEIR MAKERS’ CONTEMPORANEOUS ACTIONS Statement explaining why he performed the act (or at least which is so mixed up with the act so as to become part of the res gestae) must be made by person who performed the act Admissible to show why he performed the act Not admissible if the performance of the act and the making of the statement were not contemporaneous (though contemporaneity is a question of fact and degree)

19. STATEMENTS ACCOMPANYING CONTEMPORANEOUS ACTIONS (CONTINUED) • Only admissible if the act is relevant to a fact in issue

20. Eric sees Tina open Dan’s briefcase and put something inside. Tina tells Eric that she is opening the briefcase to put a Valentine’s Day card for Dan in it. Later that Day the police search Dan’s briefcase and find a package containing cocaine. They also find an unsigned Valentine’s Day card in the briefcase. The defence assert that the drugs were planted by Tina, who is now dead. The prosecution wish to ask Eric to repeat Tina’s statement to prove why Tina opened the briefcase. True/false? (i) The statement appears to be admissible at common law as forming part of the res gestae.

21. ANSWERS • The statement appears to be admissible at common law as forming part of the res gestae. True

22. HUMAN RIGHTS Article 6(3)(d) gives the accused the right to examine/have examined the witnesses against him (which appears to include the maker of a hearsay statement which was made for the purposes of the proceedings and is admitted| in those proceedings (e.g. a statement made to the police by a witness which is admitted under a hearsay exception) ) The existence of hearsay exceptions does not in itself violate Article 6 as the nature of evidential rules is a question for English Law

23. HUMAN RIGHTS CONTINUED Admitting hearsay evidence for the prosecution under a hearsay exception may give rise to a violation of Article 6 if, by depriving the accused of the right to cross-examine a witness, it deprives him of a fair trial. Admitting hearsay evidence for the prosecution under a hearsay exception will not give rise to a violation of Article 6 if the proceedings as a whole were fair.

24. HUMAN RIGHTS CONTINUED When deciding whether admitting hearsay evidence for the prosecution might render a trial unfair, relevant factors might include the following: whether the defence had an opportunity to examine the maker of the hearsay statement on an earlier occasion and the quality and reliability of the evidence and why thejudge thought it necessary to admit the evidence and any steps taken to counterbalance any handicap to the accused resulting from admitting the evidence

25. HUMAN RIGHTS CONTINUED and whether the defence had an opportunity to adduce evidence controverting the hearsay evidence and whether the defence had an opportunity to adduce evidence challenging the maker’s credibility and the nature of the judge’s direction to the jury concerning the weight of the hearsay evidence and whether the hearsay evidence was the only evidence that the prosecution relied on in relation to the relevant issue

26. Jill finds Fred lying in a pool of blood, Fred having been stabbed. Fred tells Jill that he was stabbed by Walter. Fred then dies. There is evidence that Fred disliked Walter and that Fred had previous convictions for perjury. Walter’s fingerprints were found on the murder weapon and an I.D witness has identified Walter as the murderer. Walter asserts that he was abroad on the day of the murder and intends to adduce evidence in support of his alibi. Which is/are true? (i) The statement appears to be admissible at common law as forming part of the res gestae. (ii) If the statement is admitted this will clearly violate Article 6 of the European Convention on Human Rights

27. ANSWERS (i) The statement appears to be admissible at common law as forming part of the res gestae. (ii) If the statement is admitted this will clearly violate Article 6 of the European Convention on Human Rights (i) Is true.