Multiple-Choice Questions Chapter 4
Criminal and Civil Evidence12th ed (2011-2012)
(a) Albert is murdered. Colin overhears two women talking in a railway station. During the conversation one woman tells the other that she saw the murder and that the murderer was Julie. Julie is charged with Albert’s murder and the prosecution intend to call Colin to repeat the statement made by the woman to prove that Julie murdered Albert. Colin does not know who the two women were, and the police have not been able to identify them. The defence wish to adduce in evidence a statement made to Julie’s solicitor by Vincent, Julie’s brother, who was a tree surgeon but is now dead, in which Vincent stated that, in his opinion, the injuries that caused Colin’s death were consistent with suicide, not with murder.
Consider the following two propositions.
(i) The hearsay statement made by the woman will be admissible under section 116 of the Criminal Justice Act 2003.
(ii) The hearsay statement made by Vincent will be admissible under section 116 of the Criminal Justice Act 2003 even though Vincent would not have been competent to give expert evidence concerning the cause of death.
Which of the above two propositions is/are true?
[a] (i) only.[b] (ii) only.[c] They are both true.[d] They are both false.
The correct answer is [d]. See textbook 4.1.2. The statement made by the unknown woman was not made in oral evidence in the proceedings and is being relied upon to prove that it was Julie who murdered Albert, so it is clearly a hearsay statement (CJA 2003 s. 114(1), considered at textbook 2.1). It is submitted, however, that the statement does not fall within the ambit of s.116 because the prosecution (who seek to adduce the statement in evidence) will be unable to identify the maker of the statement to the satisfaction of the court (CJA 2003 s.116(1)(b)). The statement made by Vincent was not made in oral evidence in the proceedings and is being relied upon to prove a matter stated (i.e. that the injuries were consistent with suicide, not with murder), so it is clearly a hearsay statement (CJA 2003 s.114(1)). The statement does not fall within the ambit of s.116 of the 2003 Act, however, because Vincent’s oral evidence would not have been admissible in relation to the relevant matter (CJA 2003 s.116(1)(a), see textbook 4.1.1). This is so because whether or not the injuries were consistent with suicide or murder appears to be a matter for expert opinion and Vincent is clearly not competent to give expert evidence in relation to this issue. [Note: the admissibility of opinion evidence is considered in textbook Chapter 13.]
(b) Eric shoots Ramesh. Before he dies, Ramesh tells Sid that Eric shot him. At Eric’s trial, the prosecution wish to rely upon the statement to prove that Eric shot Ramesh. The judge admits Eric’s hearsay statement under section 116 of the Criminal Justice Act 2003.
There is ample other evidence of the guilt of Eric, Raoul, Hector and Shabbir and, consequently, there is no danger that the admission of their statements could result in them being convicted wholly or mainly on the basis of the hearsay evidence of a witness who the defence are unable to cross-examine.
Raoul is stabbed by Stan. Raoul tells Dick that Stan stabbed him. By the time of Stan’s trial, Raoul is unfit to be a witness (he has Alzheimer’s disease). At Stan’s trial, the prosecution wish to rely upon the statement to prove that Stan stabbed Raoul. The judge admits Raoul’s hearsay statement under section 116 of the Criminal Justice Act 2003.
Hector sees Bill set fire to a barn. Hector gives a statement in writing to the police, Hector stating that he saw Bill set fire to the barn. By the time of Bill’s trial, Hector is living outside the U.K and refuses either to return for the trial or to give evidence by any other means. At the trial, the prosecution wish to rely upon the statement to prove that Bill started the fire. The judge admits Hector’s hearsay statement under section 116 of the Criminal Justice Act 2003.
Shabbir sees Alan set a car on fire. Shabbir gives a statement in writing to the police, Shabbir stating that he saw Alan set the car on fire. By the time of Alan’s trial, Shabbir has left home and cannot be located, the prosecution having taken all reasonably practicable steps to locate him. At the trial, the prosecution wish to rely upon the statement to prove that Alan set the car on fire. The judge admits Shabbir’s hearsay statement under section 116 of the Criminal Justice Act 2003.
Consider the following four propositions.
(i) Eric’s statement was properly admitted under section 116 of the 2003 Act.
(ii) Raoul’s statement was properly admitted under section 116 of the 2003 Act.
(iii) Hector’s statement was properly admitted under section 116 of the 2003 Act.
(iv) Shabbir’s statement was properly admitted under section 116 of the 2003 Act.
Which of the above propositions is/are true?
[a] (i), (ii) and (iii) only.[b] (ii), (iii) and (iv) only,[c] (i) and (iv) only.[d] They are all true.
The correct answer is [d]. See textbook 4.1.3.4 and 4.18. None of the statements were made in oral evidence in the proceedings and they are all being relied upon as evidence of the matters stated, so they are clearly hearsay statements (CJA 2003 s 114(1), see textbook 2.1). It appears that all four witnesses could have given oral evidence of the relevant matters (see textbook 4.1.1), that the prosecution (who wish to adduce the statements in evidence) will be able to identify all four witnesses the satisfaction of the court (see textbook 4.1.2) and that, in the case of each witness, one of the CJA 2003 s.116(2) conditions is satisfied (Ramesh is dead, see textbook 4.1.3.1; Raoul is unfit to be a witness, see textbook 4.1.3.2; Hector is outside the UK and it is not reasonably practicable to secure his attendance, see textbook 4.1.3.3; and Shabbir cannot be found, all reasonably practicable steps having been taken to locate him). There was clearly no need for the judge to exclude any of these statements under PACE s,78 because there was ample other evidence of the guilt of Eric, Raoul, Hector and Shabbir and, consequently, admitting the statements does not appear to create the risk of an Article 6 violation.Moreover, even if the only evidence of the guilt of these various defendants had been the hearsay evidence of prosecution witnesses who the defence could not cross-examine, it seems that this would not automatically have given rise to a violation of Article 6 (Horncastle).
(c) Horace is charged with the murder of Violet. Jane, a prosecution witness, makes a statement to the police, stating that she saw Horace shoot Violet. By the time of Horace’s trial, Jane has been violently beaten and threatened by some of Horace’s friends and is too frightened to give evidence in the proceedings, even via live link. At the trial, the prosecution intend to use Jane’s statement to the police to prove that Horace murdered Violet.
Which one of the following three propositions is true?
[a] The statement is not a hearsay statement
[b] The statement may be admissible under section 116 of the Criminal Justice Act 2003.
[c] The statement is admissible under section 116 of the Criminal Justice Act 2003.
[d] The statement cannot be admissible in evidence because Jane is not dead.
The correct answer is [b]. See textbook 4.1.3.5. The statement was not made via oral evidence in the proceedings and is tendered as evidence of the truth of the matter stated (i.e. to prove that Horace murdered Violet), so it is a hearsay statement (CJA 2003, s.114(1), which is considered at textbook 4.1, above). Jane’s oral evidence would have been admissible to prove that Horace murdered Violet (CJA s.116(1)(a)) and, presumably, the prosecution (who wish to adduce the evidence) can identify Jane to the Court’s satisfaction (CJA 2003 s.116(1)(b), see textbook 4.1.2), so, provided that the prosecution also satisfy the court via admissible evidence that Jane does not give oral evidence through fear, the crucial question will be whether the court gives the prosecution leave to adduce the hearsay statement (CJA 2003 s.116(1)(c),(2)(e),(4)). Thus, the statement may (but will not necessarily) be admissible under s.116 of the 2003 Act. The fact that Jane is not dead does not prevent the statement being admissible under s.116 as, whilst death is one of the five s.116(2) conditions of admissibility, for the purposes of admissibility under s.116, it is only necessary to satisfy one of the five conditions, it not being necessary to satisfy all five (see textbook 4.1).
(d) Jason kills Paul. The only other person who is present is Wasir. Jason’s friends “persuade” Wasir to give Jason’s solicitor a written statement to the effect that Jason acted in self defence. Jason’s friends then “persuade” Wasir to go back to his home in Pakistan and to refuse to return to England for Jason’s trial. At the trial, the defence wish to rely upon Wasir’s statement to prove that Jason acted in self-defence.
Consider the following two propositions.
(i) The statement is a hearsay statement.
(ii) The statement is admissible under section 116 of the Criminal Justice Act 2003.
Which of the above two propositions is/are true?
[a] (i) only.[b] (ii) only.[c] They are both true.[d] They are both false.
The correct answer is [a]. See textbook 4.1.3.6. The statement was not made in oral evidence in the proceedings and is being relied upon to prove that Jason acted in self-defence, so it is clearly a hearsay statement (CJA 2003 s.114(1), see textbook 2.1). It appears that Wasir could have given oral evidence of the relevant matter (see textbook 4.1.), that the defence (who wish to adduce the statement in evidence) will be able to identify Wasir to the satisfaction of the court (see textbook 4.1.2) and that one of the CJA 2003 s.116(2) conditions is satisfied (Wasir is outside the UK and it is not reasonably practicable to secure his attendance, see textbook 4.1.3.3). It appears that s.116(5) will prevent the admission of the evidence under s.116, however, because it appears that the s.116(2) condition (Wasir being outside the UK) was caused by persons acting on behalf of Jason and, consequently, the court must treat the condition as not being satisfied.
(e) Angus and Doug see Vicky throw a brick through a shop window. Angus tells Simone, his wife, what he saw. Doug tells Misbah, a 16-year-old schoolboy, what he saw. Misbah writes down what Doug told him in his diary. Angus and Doug are both dead by the time of the Vicky’s trial and the prosecution, in order to prove that Vicky broke the window, intend to call Simone to repeat Angus’ oral statement and to read out the relevant extract from Misbah’s diary.
Consider the following two propositions.
(i) Angus’ hearsay statement is admissible under section 117 of the Criminal Justice Act 2003.
(ii) Doug’s hearsay statement is admissible under section 117 of the Criminal Justice Act 2003.
Which of the above two propositions is/are true?
[a] (i) only.[b] (ii) only.[c] They are both true.[d] They are both false.
The correct answer is [d]. See textbook 4.2.3.1. Neither statement was made in oral evidence in the proceedings and both are being relied upon to prove that it was Vicky who broke the window, so they are clearly hearsay statements (CJA 2003 s.114(1), see textbook 2.1). It appears that Doug’s statement does not fall within the ambit of s.117 of the 2003 Act because Misbah did not create the document in the course of a trade, business etc (CJA 2003 s.117(2)(a)). It appears that Angus’ statement does not fall within the ambit of s.117 of the 2003 Act both for the same reason that Doug’s statement does not fall within the ambit of s.117 and because it is not “contained in a document” (CJA 2003 s.117(1), see textbook 4.2.1). [Note: both statements may be admissible under s.116 of the 2003 Act, which is considered at textbook 4.1, above, under which Simone could be called to prove Angus’ statement and Misbah could be called to prove Doug’s statement.]
(f) Sid is charged with the murder of Roland. Elsie, an eyewitness, tells Mary, her neighbour, that she saw Sid kill Roland. Mary tells Lance, a police officer, what she was told by Elsie and Lance writes this down. Because Mary is dead by the time of the trial, the prosecution intend to rely upon the written statement to prove that Sid killed Roland. James also attends the police station and makes a statement to the effect that he saw Sid kill Roland. James is also dead by the time of the trial and the prosecution intend to rely upon James’ witness statement to prove that Sid killed Roland. The Crown Prosecution Service possess cogent evidence to the effect that James who is mentally ill and is prone to invent stories of this type, could not have been present when Roland was killed.
Consider the following two propositions.
(i) The written statement of Elsie’s evidence is admissible under section 117 of the Criminal Justice Act 2003 to prove that Sid killed Roland.
(ii) James’ witness statement is admissible under section 117 of the Criminal Justice Act 2003 to prove that Sid killed Roland.
Which of the above two propositions is/are true?
[a] (i) only.[b] (ii) only.[c] They are both true.[d] They are both false.
The correct answer is [d]. See textbook 4.2.3.3. The statements were not made in oral evidence in the proceedings and are being relied upon to prove that it was Sid who killed Roland, so they are clearly hearsay statements (CJA 2003 s 114(1), see textbook 2.1). It appears that James’ witness statement does not fall within the ambit of s.117 of the 2003 Act because it appears to be extremely unlikely that James had personal knowledge of the matters in the statement (CJA 2003 s.17(2)(b), considered at textbook 4.2.3.2). It appears that written statement of Elsie’s evidence does not fall within the ambit of s.117 of the 2003 Act because Mary did not receive the information in the course of a trade, business, etc (CJA 2003 s.117(2)(c)). [Note: it may be that Mary could be called to prove Elsie’s oral statement under s.116 (which is considered at textbook 4.1) and that the police officer who took James’ statement down could be called to prove it under s.116 (though it may well be that the trial judge would exclude James’ statement under s.78 of the Police and Criminal Evidence Act 1984 upon the basis that its probative value was vastly outweighed by its prejudicial effect.]
(g) Horace is employed in the offices of a small company that manufactures gas fires. Part of his job is to maintain written records of the serial numbers of the gas fires that his company dispatches to its various distributors. He compiles his records from information given to him by employees in the company’s warehouse who note down the serial numbers when they personally dispatch the goods. In the context of criminal proceedings for theft against another employee, the defence wish to rely upon Horace’s records to prove that a particular batch of fires had not been stolen from the company’s warehouse, as the prosecution assert, but, rather, had been dispatched to a distributor. Horace is available to give evidence.
Consider the following two propositions.
(i) The statement is a hearsay statement.
(ii) The statement is not admissible under s.117 of the Criminal Justice Act 2003 because James is available to be called as a witness.
Which of the above two propositions is/are true?
[a] (i) only.[b] (ii) only.[c] They are both true.[d] They are both false.
The correct answer is [a]. See textbook 4.2.4. The statement appears to be a hearsay statement because it was not made in oral evidence in the proceedings and is relied upon as evidence of the matter stated (CJA s.114(1), see textbook 2.1). The statement appears to fall within the ambit of s.117, however, because it is contained in a document (CJA s.117(1), see textbook 4.2.1), oral evidence of the matter stated would be admissible (CJA s.117(1)(a), see textbook 4.2.2), the document was created by Horace in the course of his trade, business etc (CJA 2003 s.117(1)(b),(2)(a), see textbook 4.2.3.1) and the workmen who supply the information to Horace appear to have personal knowledge of the matters dealt with (CJA 2003 s.117(1)(b),(2)(b), see textbook 4.2.3.2). The defence do not need to prove that the requirements of s.117(5) are satisfied, because the statement was not prepared for the purposes of criminal proceedings or for a criminal investigation (s.117(1)(c),(4)).
(h) Which one of the following four propositions is false?
[a] A criminal court possesses discretion to direct that hearsay evidence that is of doubtful reliability is not admissible under section 117 of the Criminal Justice Act 2003.
[b] A criminal court possesses discretion to refuse to admit hearsay evidence under section 116 of the Criminal Justice act 2003 where the maker of the hearsay statement does not give evidence through fear.
[c] A criminal court, under section 78 of the Police and Criminal Evidence Act 1984, possesses discretion to exclude hearsay evidence otherwise admissible for the defence the admission of which would make the trial unfair for the prosecution.