#10353 - Hearsay - BPC Civil Litigation

HEARSAY

WHAT IS HEARSAY?

• definition

  • statement (fact / opinion, no matter how made)

  • made otherwise than by person while giving oral testimony in court

  • tendered as evidence of the truth of its contents (r33.1)

• distinction between hearsay + real evidence

  • real evidence (physical objects produced for inspection by court) = admissible

  • distinction = fine re: printouts + recordings made by machines

    • at common law regarded as real evidence

    • BUT may seen as evasion of notice procedure under CEA 1995

WHEN IS HEARSAY ADMISSIBLE? (CEA 1995)

• general rule

  • all hearsay admissible (even multiple)

  • only question is its weight

• when is hearsay INadmissible?

  • incompetence + hearsay

    • hearsay shall NOT be admitted if and to the extent that:

1. it comprises a statement of a person who would NOT be a competent witness; OR

2. it is to be proved by a person who is NOT a competent witness

   • incompetence = inability to understand oath

(N.B. children which an give unsworn evidence but understand duty to tell truth + have sufficient understanding to justify evidence being given NOT incompetent)

• previous consistent statements

  • party which has called / intends to call person as witness may NOT also adduce previous consistent statements made by that witness

  • exceptions:

1. court grants permission (usually NOT granted)

   • may grant if passage of great deal of time / onset of illness / earlier statement not contemporaneous enough to be used as memory-refresher

2. to rebut an allegation in XX that witness's evidence fabricated

3. does NOT preclude witness adopting exchanged statement as EIC (s6(2))

• what does CEA NOT affect?

  • hearsay evidence may be excluded on a ground other than hearsay e.g. irrelevant, non-expert opinion (s14(1))

  • does NOT expand:

1. circumstances previous inconsistent statements may be put in XX

2. degree to which party may XX hostile witnesses (s6(3))

   • statutory exceptions to the hearsay rule imported from common law (s7(2), (3))

1. published works on matters of a public nature

2. public documents e.g. official registers

3. records of certain courts, treaties, pardons

4. reputation adduced to establish good / bad character

5. reputation / family tradition on a question of pedigree

6. reputation / family tradition on existence of a public / general right OR to ID a person / thing

PRE-TRIAL STEPS FOR RELYING ON HEARSAY

• notice of intention to rely on hearsay evidence

  • party intending to rely on hearsay at trial must serve hearsay notice on other side in advance of trial (CEA 1995 s2)

  • form of notice

1. hearsay given in oral evidence = serve WS on other parties (r33.2(1)(a))

2. hearsay contained in a WS of a person who is NOT being called = serve WS on other parties (r33.2(1)(b)) AND inform other parties witness will NOT be called + reasons (r33.2(2))

3. hearsay in all other cases = serve notice on other parties:

   1. IDing hearsay

   2. stating party serving intends to rely at trial +

   3. giving reason why witness will NOT be called (r33.2(3))

   • timing of notice

     • must serve no later than latest date for serving WSs + (if hearsay is in document) supply copy to any party who requests

   • when hearsay notice NOT required

1. evidence at hearings other than trials

2. affidavit / WS which is to be used at trial but does NOT contain hearsay; or

3. where excluded by a PD

   • failure to serve hearsay notice either not in time / not at all

     • does NOT affect admissibility BUT may attract adverse costs order / adversely affect weight of evidence (s3 CEA 1995)

   • business document certificates (s9 CEA 1995)

     • should also serve hearsay notice for business / public authority documents to be served in evidence without further proof (see SGS 11)

• actions where a party proposes to rely on hearsay BUT does NOT propose to call original statement maker

  • application for permission XX on hearsay evidence

    • where a party proposes to rely on hearsay + does NOT propose to call original statement maker court, any other party can apply XX the statement maker on the contents of the statement (CEA 1995 s3, r33.4(1))

    • the application

      • must issue application notice (+ consider written evidence, though NOT mandatory) within 14 days after service of hearsay notice (r33.4(2))

      • who can apply

        • usually exercised when party who obtained statement deploys it at trial

        • party who obtained statement can also apply if they serve it on other side + decide not to use BUT other side decide to use as hearsay evidence at trial (Douglas v Hello!)

  • credibility notices

    • required if a party proposes to rely on hearsay BUT does NOT propose to call original statement maker to give oral evidence AND another party wishes to attack the statement maker's credibility (r33.5(1))

    • the party wishing to adduce evidence to attack credibility must serve notice of their intention to do so on the party intending to rely on the hearsay within 14 days after service of hearsay notice (r33.4(2))

USE OF HEARSAY AT TRIAL

• adducing the evidence in court

1. hearsay statement contained in business record (s9 CEA 1995)

   • adduce record + business document certificate

2. hearsay statement contained in a document (s8 CEA 1995):

1. produce that document; OR

2. produce an authenticated (i.e. call W to testify to authenticity) copy of that document (immaterial whether original still in existence / number of removes)

3. oral hearsay

   • call a witness who heard the hearsay statement

• credibility

  • evidence to attack or support the credibility of hearsay statements adduced at trial is admissible (unless a denial by the witness would have been final under the rules of evidence) (CEA 1995 s5(2))

    • NOT allowed: evidence relevant to collateral issues

    • allowed:

1. evidence statement maker convicted of a crime

2. evidence of any bias of the statement maker in favour of party adducing

3. evidence that statement maker has made previous statement inconsistent with that relied on

• weight

  • court must have regard to circumstances from which inferences can reasonably be drawn as to the reliability of the evidence (CEA 1995 s4(1)), in particular:

1. whether reasonable and practicable for party adducing evidence to produce the statement maker as a witness

(particularly damaging to weight if whereabouts of important witness can be easily ascertained but party chooses to rely on hearsay)

2. whether original statement contemporaneous with occurrence of matters stated

3. ...