Evidence - Hearsay - Questions (1)
Q1. Alan is charged with the murder of his wife Bryony, the circumstances being that the couple were separated and engaged in bitter matrimonial litigation about the division of the matrimonial property. Bryony is found by Clive, a passerby, suffering from multiple stab wounds. Forensic evidence indicates that she has been lying in the spot where she is found for at least three hours. The prosecution has the following items of evidence.
(a) Clive, who will testify that when he found bryony she said to him “Alan is to blame, he would do anything to keep his money…” and thereafter she lapsed into unconsciousness and did not speak again before dying.
(b) Another witness, David, has given a statement that he saw a car which resembled Alan’s in the neighbourhood and has remembered three letters from the registration plate. David has since moved to Australia and has indicated to the prosecution that he will not return to testify because he is afraid of being prosecuted himself in respect of unrelated matters.
Answers:
Q1a) Apply s116: being dead
- BUT s124: Provides right to attack the reliability of the absent witness as if she’s present
Q1b) Apply s116: outside of the UK; fear – requires leave of court
- s124 applicable; but given the facts, his statement should be reliable
- Other prosecutions that are unrelated to the case are irrelevant
Q2. Graham is charged with unlawful possession of a firearm, making an unlawful threat to kill and causing grievous bodily harm with intent.
The circumstances are that following an argument in the street with Ingrid, a neighbour, he is said to have gone home, obtained a gum and advanced on Ingrid threatening to ‘blow her away’. Thereupon Harry, who was passing by and anticipated violence, attempted to intervene, but Graham struck him with the gun, causing a fracture to his skull. Once he had fallen to the ground Graham is alleged to have kicked him. Jane, who was driving past at the time, bundled Harry into the car and drove off. She stopped nearby and Harry told her what had happened to him. She then took him to hospital and called the police on Harry’s mobile phone. Jane’s call to the police was recorded and in it she gives an account of what Harry told her at the time. No-one obtained Jane’s name and address and she now cannot be traced.
Consider:-
(a) Ingrid made two statements, the first lacking in detail and inconsistent with the second, which contained graphic detail. In the course of giving evidence she broke down and refused to continue contending that she was intimidated by Graham glaring at her from the dock. She refused absolutely to continue giving evidence. The prosecution accordingly apply to put in evidence her second witness statement only, but the defence contend that both statements should be put in.
(b) Consider the police tape recording of the account by Jane of what Harry said.
(c) There is another eyewitness, Katrina, who refuses to come to court because she is scare of the defendant’s reputation. The prosecution seeks to put in her evidence, but the defence objects on the basis that Katrina has a string of previous convictions for theft, criminal deception and perjury.
(d) The gun is found in the hedge nearby. Unfortunately, before it can be fingerprinted or tested for the DNA of the victim, the police lose the weapon. Graham contends that no evidence can be put in about the finding of the gun because the police misconduct in losing it amounts to an abuse of process.
Answers:
Q2a) Apply s116: fear – require leave of court
- Apply s119: inconsistent statements – one statement goes in, the whole story (including the inconsistencies) goes in
Q2b) Involves multiple hearsay s121 CJA 2003
- Tape = document under s117
- Apply s116 for Jane’s unavailability: take enough efforts to find her to court’s satisfaction?
- Jane has to be identifiable: probably yes as she is not any person in the crowd
Q2c) Apply s116 for her fear – judge to decide whether to grant leave
- Previous convictions will be considered by the judge first
- s124 allow the defence to attack witness’ character (?)
Q2d) Refer to police’s misconduct / carelessness
- Defence can apply abuse of process
- Judge will either:
i/ require no mentioning of gun -> acquittal of first charge; or
ii/ be satisfied with other evidence and the case continues
Q3. Alan is a delivery driver for Brilliant Computers Limited. He is loading his lorry one day for a delivery to Continental Limited. On his way out of the warehouse he shouts to a colleague, Donald, “Tell the foreman I’ve loaded 25 computers for Continental Computers Limited”. Donald tells Eric the foreman and he writes up the delivery record book.
Alan delivers the load, but on the way back is killed in a road accident. A week later Continental Limited phones Brilliant Computers Limited to say that according to its records it is short of three computers because only 22 were delivered. Frank, who lives near the premises of Continental Limited is found in possession of three computers, but they cannot be positively identified as the missing ones. The shop from which Frank claims he bought them is no longer in business and the owner cannot be traced. The prosecution believes Frank must have stolen the computers from the lorry and he is charged with theft.
Advise on the following potential matters of evidence:
* For the prosecution:
i) The deliveries record books of Brilliant Computers Limited
ii) A statement from Frank’s former girlfriend to the police that Frank prides himself on making a living from stock “taken from the back of lorries”. However, she is too frightened to testify.
iii) Whilst searching Frank’s house, Tom a policemen takes a telephone call from a called who cannot be traced who says “Did it all go alright.. can we agree a price of a thousand pounds for those computers?”
On realizing that the person answering the telephone is not Frank, the caller rings off.
* For the defence:
iv) Frank has discovered that Alan had two previous convictions for theft from former employers and believes that he may have arranged for the theft of the computers himself, or falsely recorded how many computers he loaded on his lorry.
v) After the accident Alan said to the ambulance drive “I know I may not make it… I must clear my conscience… I sold those three computers”. He then died.
Answers
Q3i) Apply s117: business records are not hearsay; no need to show unavailability of the recorder
Q3ii) Apply s116: Fear requires leave of court
- s124 may be used to attack credibility of witness
Q3iii) Kearley is reversed by s115(3) CJA 2003
Q3iv) Previous conviction, spent or not?
- Evidential burden of the defence to raise a live issue so that judge will direct jury on it
Q3v) Apply s116: being dead: exception to hearsay rule
(a) Clive, who will testify that when he found bryony she said to him “Alan is to blame, he would do anything to keep his money…” and thereafter she lapsed into unconsciousness and did not speak again before dying.
(b) Another witness, David, has given a statement that he saw a car which resembled Alan’s in the neighbourhood and has remembered three letters from the registration plate. David has since moved to Australia and has indicated to the prosecution that he will not return to testify because he is afraid of being prosecuted himself in respect of unrelated matters.
Answers:
Q1a) Apply s116: being dead
- BUT s124: Provides right to attack the reliability of the absent witness as if she’s present
Q1b) Apply s116: outside of the UK; fear – requires leave of court
- s124 applicable; but given the facts, his statement should be reliable
- Other prosecutions that are unrelated to the case are irrelevant
Q2. Graham is charged with unlawful possession of a firearm, making an unlawful threat to kill and causing grievous bodily harm with intent.
The circumstances are that following an argument in the street with Ingrid, a neighbour, he is said to have gone home, obtained a gum and advanced on Ingrid threatening to ‘blow her away’. Thereupon Harry, who was passing by and anticipated violence, attempted to intervene, but Graham struck him with the gun, causing a fracture to his skull. Once he had fallen to the ground Graham is alleged to have kicked him. Jane, who was driving past at the time, bundled Harry into the car and drove off. She stopped nearby and Harry told her what had happened to him. She then took him to hospital and called the police on Harry’s mobile phone. Jane’s call to the police was recorded and in it she gives an account of what Harry told her at the time. No-one obtained Jane’s name and address and she now cannot be traced.
Consider:-
(a) Ingrid made two statements, the first lacking in detail and inconsistent with the second, which contained graphic detail. In the course of giving evidence she broke down and refused to continue contending that she was intimidated by Graham glaring at her from the dock. She refused absolutely to continue giving evidence. The prosecution accordingly apply to put in evidence her second witness statement only, but the defence contend that both statements should be put in.
(b) Consider the police tape recording of the account by Jane of what Harry said.
(c) There is another eyewitness, Katrina, who refuses to come to court because she is scare of the defendant’s reputation. The prosecution seeks to put in her evidence, but the defence objects on the basis that Katrina has a string of previous convictions for theft, criminal deception and perjury.
(d) The gun is found in the hedge nearby. Unfortunately, before it can be fingerprinted or tested for the DNA of the victim, the police lose the weapon. Graham contends that no evidence can be put in about the finding of the gun because the police misconduct in losing it amounts to an abuse of process.
Answers:
Q2a) Apply s116: fear – require leave of court
- Apply s119: inconsistent statements – one statement goes in, the whole story (including the inconsistencies) goes in
Q2b) Involves multiple hearsay s121 CJA 2003
- Tape = document under s117
- Apply s116 for Jane’s unavailability: take enough efforts to find her to court’s satisfaction?
- Jane has to be identifiable: probably yes as she is not any person in the crowd
Q2c) Apply s116 for her fear – judge to decide whether to grant leave
- Previous convictions will be considered by the judge first
- s124 allow the defence to attack witness’ character (?)
Q2d) Refer to police’s misconduct / carelessness
- Defence can apply abuse of process
- Judge will either:
i/ require no mentioning of gun -> acquittal of first charge; or
ii/ be satisfied with other evidence and the case continues
Q3. Alan is a delivery driver for Brilliant Computers Limited. He is loading his lorry one day for a delivery to Continental Limited. On his way out of the warehouse he shouts to a colleague, Donald, “Tell the foreman I’ve loaded 25 computers for Continental Computers Limited”. Donald tells Eric the foreman and he writes up the delivery record book.
Alan delivers the load, but on the way back is killed in a road accident. A week later Continental Limited phones Brilliant Computers Limited to say that according to its records it is short of three computers because only 22 were delivered. Frank, who lives near the premises of Continental Limited is found in possession of three computers, but they cannot be positively identified as the missing ones. The shop from which Frank claims he bought them is no longer in business and the owner cannot be traced. The prosecution believes Frank must have stolen the computers from the lorry and he is charged with theft.
Advise on the following potential matters of evidence:
* For the prosecution:
i) The deliveries record books of Brilliant Computers Limited
ii) A statement from Frank’s former girlfriend to the police that Frank prides himself on making a living from stock “taken from the back of lorries”. However, she is too frightened to testify.
iii) Whilst searching Frank’s house, Tom a policemen takes a telephone call from a called who cannot be traced who says “Did it all go alright.. can we agree a price of a thousand pounds for those computers?”
On realizing that the person answering the telephone is not Frank, the caller rings off.
* For the defence:
iv) Frank has discovered that Alan had two previous convictions for theft from former employers and believes that he may have arranged for the theft of the computers himself, or falsely recorded how many computers he loaded on his lorry.
v) After the accident Alan said to the ambulance drive “I know I may not make it… I must clear my conscience… I sold those three computers”. He then died.
Answers
Q3i) Apply s117: business records are not hearsay; no need to show unavailability of the recorder
Q3ii) Apply s116: Fear requires leave of court
- s124 may be used to attack credibility of witness
Q3iii) Kearley is reversed by s115(3) CJA 2003
Q3iv) Previous conviction, spent or not?
- Evidential burden of the defence to raise a live issue so that judge will direct jury on it
Q3v) Apply s116: being dead: exception to hearsay rule
posted by pompom at 7:00 AM
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