Hearsay Question pt.2

The principle on which evidence of res gestae, including hearsay evidence, is admitted is that the words and events may be so closely inter-related that the truth can only be discovered when the words accompanying the events are disclosed. But it is not essential that the words should be absolutely contemporaneous with the events. What is essential is that there should be close association, and that the words sought to be proved by hearsay should be at least de recenti and not after an interval which would allow time for reflection and for concocting a story.  http://www.cps.gov.uk/legal/h_to_k/hearsay/

However, the soundness of this approach seems to be doubted in the recent case of Cinci v HM Advocate. There the complainer, on being discovered naked in a shower cubicle with the accused, stated that he had raped her. The trial judge was of the view that this statement was admissible as part of the res gestae, following the approach taken in O’Hara, but this was reversed on appeal. Lord Justice Clerk Gill stated that he was:

“…of the opinion that the words “He raped me” were not part of the res gestae. The res gestae principle is founded, at any rate on the older Scottish authorities, on the idea that the words spoken are part of the event itself.”

De recenti is well explained in Morton v HM Advocate

A statement made by an injured party de recenti, unless it can be brought within res gestae, is ordinarily inadmissible as hearsay only, but an exception is allowed in the case of sexual assaults on women and children. A statement of the injured party de recenti is nothing but the statement of the injured party, and it is not evidence of the fact complained of. It follows that for a de recenti statement to be admissible, its maker must testify. This was also illustrated with photo booth hire Glasgow

In Shaban Ahmed v HMA 2009,an alleged victim in rape case made de recenti remark to friend but denied doing so later at trial. On appeal, held remark admissible; no rule that the victim had to confirm making it in order for it to be admissible. The crucial thing was whether remark made, not whether alleged author of it agreed it was made.

Precognitions include self serving, non-spontaneous internal insurance memo written after matter became contentious, as in  Wm Thyne (Plastics) v Stenhouse Reed Shaw 1979 now deceased witness’s version inevitably likely to be tainted with bias without impugning deceased’s integrity.

Broadly speaking, s.260 of the Criminal Procedure (Scotland) Act 1995 allows witnesses to adopt prior statements where they have forgotten the details as a result of the passage of time, and such statements then become admissible as proof of their contents. It only applies where the witness indicates in court, first, “that the statement was made by him” and, secondly, “that he adopts it as his evidence”.

Exceptions in Criminal proceedings as seen in LA’s Reference No 1 of 1992 where on appeal, computer records compiled by individually unidentifiable operators were hearsay when spoken to by Head of Dept but allowed by exception as impossible to id individual authors of records and evidence from Head of Dept was best evidence in the circumstances. In Matulewicz v HMA 2013 section 260 applied where witness forgot testimony but confirmed true contents of her signed statement to PC; thus sufficiently adopted and no need to call the PC as such.

Grounds for excpetion include when Witness is either dead or unfit mentally or physically to give competent evidence as seen in the;  In Humphrey v HMA 2008, Witness in alleged rape died subsequent to giving statement. Deceased W’s statement allowed per s259. Witness had poor eyesight but this did not affect evidence of what he’d said he heard. October 2008, HCJ Dundee Peter Tobin Trial for 1991 Bathgate abduction & murder of 15 year old Falkirk schoolgirl Vicky Hamilton. Vicky’s mother died later but statements she made to Police during initial 1990’s investigations admissible per s259.

Exceptions in civil proceedings; Previously it was thought that Hearsay admissible only if “witness” [i.e. “author” of remark] competent to give direct oral evidence. Previously, it was thought that Hearsay not competent if “author” of remark was incompetent at time. Now per T v T 2000 no competence test applies & hearsay evidence of incompetent witnesses such as children is admissible in this way e.g. if child refuses to speak at proof.

The admission of hearsay per se does not breach Article 6(1) of the European Convention on Human Rights. The nature of hearsay evidence, and how it should be regarded, ought to be explained to the jury. If an explanation is not given, the appeal court might hold that the failure amounted to a miscarriage of justice.

The Grand Chamber of the European Court of Human Rights ruled that convictions based on statements from witnesses who could not be cross-examined in court did not, in all cases, violate the rights of defendants under art.6 of the European Convention on Human Rights, which guarantees the right to a fair trial. As seen in the case of Al-Khawaja and Tahery v. UK. The Grand Chamber has essentially agreed with the domestic courts that a conviction based solely or decisively on the statement of an absent witness does not automatically result in a breach of art.6.

Under s.114 of the 2003 Act, hearsay evidence is only admissible in criminal proceedings if one of a number of “gateways” applies. One such gateway is contained in s.114 (1)(d), which allows for the admission of hearsay if the court is satisfied that it is in the interests of justice for it to be admissible.

The Current trial format is more 19th than 21st century. Technology exists to allow early or immediate recording of witnesses’ evidence, so should hearsay rules be changed to allow this? Might eliminate problems of memory recall & focus the cross examination issues better? Digital technology can record witness statements, even at a crime scene, in video & audio of a quality that can later be played to a jury in court – so perhaps where there is a statement recorded electronically, that ought to be admissible as proof of fact, because there should be no doubt as to what the witness said.