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Hearsay Notes

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Evidence: 6th May: OUTLINE 13: HEARSAY EVIDENCE: s17 General Proposition is that a hearsay statement is not admissable s17(a) If other Acts allow admissability, it's allowed. s17(b)(i), s27(3) Defendant's statement offered by the prosecution is hearsay. When the crown wants to put in that evidence, s27(3) says they don't need to worry about hearsay, but still worry about other sections. Still has to be relevant (s17(b)(ii)) What is hearsay?
S4 Definition: Statement made by a person other than a witness. Who is a witness? Person who gives evidence (testifying, not just offering evidence) and is able to be cross examined. Give evidence? S83 Orally in court, or using an alternative way e.g. video etc, s105 Written in the present tense - Only hearsay when you're dealing with someone who isn't there right now. What about past/future testifyer?
Past testifyer - got up in witness box, testifed, gone. Are they a witness? If he's a witness, what he said isn't hearsay because hearsay is a statement made by a person other than a witness. S35(1) have to worry about previous consistent statement rule - previous statement of the witness, consistent with witnesses' evidence. Future testifyer - Someone who will testify later on in the trial. If they are a witness, then you can throw in their statements before they even get in the witness box. Hearsay rule is all about the ability to cross examine. If he's gone home, maybe shouldn't be called a witness. Still undecided in a court, we don't know. "I am 21" hearsay - how do you know? Relying on a statement made by someone else who isn't a witness. Now, under the Act "statement". Would have to say they are actually giving evidence about a statement made by someone else. "Product of morocco", not admissable, hearsay.

11th May: Definition of the hearsay statement, continued: (b) is offered in evidence to prove the truth of its contents. "The car was red", proves the car was red. Sometimes statements are put in for other purposes, if so, it won't be hearsay. e.g. proving someone spoke some words. The following things are not hearsay, don't have to worry about s7, s8.
- Offer statement to show it was a lie (not proving truth?
- Contract, want to show there is a contract? Doesn't matter if he didn't actually agree, stuck with liability anyway if you give the objective impression that you agree. Not proving truth, just that words were said.
- "Watch out, there's a bottle coming at you", person jumps away and gets hurt. Not proving truth of words, just that they were said.
- Provocation - murder to manslaughter. "Only because he told me he was sleeping with my wife". Not proving truth, proving they were spoken only
- Craziness "I am Napoleon", to show he's crazy, not that he's Napoleon. Offering a statement, you want to put it in to show they had a certain piece of knowledge in their

head. Before the Act - Someone killed by an arrow, the only people that knew were the murderer and the police. Defendant wants to call evidence of the person saying "I spoke to Mrs X on the night of the murder, and she said that the guy had been killed with an arrow." HL said this would be hearsay, but everyone else disagreed. Subramanian v DPP:
- Found with ammunition
- His defence is duress (forced to commit crime under threat of imminent death)
- Captured by communists Judge said you can't repeat what communists told you. Appealed, allowed because trial judge was wrong - needed statements to prove duress occurred. Doesn't matter if the statements were true or not, just to show they were made. Only hearsay if proving the truth of its contents. R v Howes:
- Controversial
- Killed the two stepkids
- Evidence: Admissability of statements by the kids alleging Homes had been sexually abusing them Everybody agreed that those statements would be admissable, not hearsay. They aren't admissable to prove the truth of their contents, just to show that they were made, provided a motive. Court wouldn't agree that the words could be used to prove the truth of their contents (would be hearsay). Trial judge went along with the crown and said could rely to prove the truth of their contents (thats why it was appealed to PC). The PC applied the proviso, court can still dismiss the appeal provided no miscarriage of justice. Guy went to jail. "Statement" s4 definition. Spoken or written assertion or nonverbal conduct intended to be an assertion. R v Holtham:
- Text messages in a drug case
- Unanswered text messages on accused's phone
- "Can I have 1/4 chicken"
- Assertions - Implied assertion that the recipient of the text messages was willing to sell drugs Said not hearsay. Intention to assert - implied assertion, not intention to assert, not a statement and thus not hearsay. Could be a set up. How to determine admissability of nonhearsay statement? S7 and s8. If only one, judge wouldn't let it I, but in this case there were 30 messages - let them in. Said if they decided it was hearsay, they wouldn't let it in, s18 hurdle wasn't passed. Statement is all about an intention to assert. If no intention to assert, then it is not a statement. "Implied assertion" Before the Act. Implied assertions are not hearsay under the Act. E.g. ship captain taking his family on a voyage. Inspects ship before the voyage, then goes on the voyage. Implies that he is asserting the ship is safe. If he said it to anyone "the ship is safe", it would be hearsay.

13th May: Morris:
- Pre Act case What is proven by evidence that an item or name is missing from a register or stock list. Person can

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