Quote:
Originally Posted by The Cobra
If Howden is giving evidence how can the texts be hearsay? I get that perhaps when he sent the texts he may have been exaggerating etc., but I think that should be up to him to clarify why the texts were not an accurate view of the facts as he saw them when he sent the texts.
All testimony is such that its truth and reliability cannot be guaranteed. Presumably it is up to the judge to weight the reliability and truthfullness of all evidence.
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Hearsay is any out-of-court statement being submitted as proof of the truth of its contents and as a default it is presumptively inadmissible.
Even when you call a witness who made a prior written statement, ordinarily you are still not introducing the prior statement because you have the witness and they just give their evidence. The problems all start when the witness on the stand says they have no present memory and therefore cannot really tell the court what happened / answer the lawyers' questions.
At that point various things can be done, all of which it would appear the Crown has tried in relation to Howden.
You can have the witness silently review their prior statement to see if it refreshes their present memory. It often does and you carry on with the in-court evidence from the witness who now remembers.
However, if after reading their prior statement the witness is still saying they have no present memory, you can seek to cross examine them on inconsistencies in their prior statement and their present evidence (either with or without asking them to be declared 'adverse'). You are still relying on the in-court evidence but now you are trying to draw it out of the witness by confronting them with what they have previously said.
This would have been the point where the judge was determining whether Howden was feigning his lack of memory and how many inconsistencies there were from his prior statements to his in-court testimony.
If cross examination is not permitted or is unsuccessful at getting the evidence, you can also attempt to introduce the prior statement itself as the evidence (in place of the evidence the witness cannot now give because they cannot remember). But, that means you are now needing to fit within an exception to hearsay.
This all then enters into some of the most complex evidence issues there are, but in general, the bottom line is evidence will often get over the threshold of admissibility (and then is available to be weighed for its ultimate truth and reliability) if it can be shown it was created in circumstances where it can be said to be reliable, and its probative value outweighs any prejudicial effect.
(These are all terms of art in criminal evidence law which themselves are often the subject of a continuing education course because even lawyers struggle with the various rules and exceptions).
Past recollection recorded appears to be the exception they were relying on as the last effort to get the text messages in. The most common example of that would be a police officer's contemporaneous notes or a memo to file written by a person who was purposely trying to make an accurate account of events so that they could be referred to later.
It would appear that when put into context of the circumstances under which Howden wrote the texts, the judge was not satisfied that he was being accurate, recording actual events (as opposed to just b-s ing with his buddy), and therefore there was no way to be satisfied that the contents of the texts had any reliability that they were true.
As a result, they were ruled inadmissible.
This is the type of ruling that can be the subject of a prosecution appeal and could lead to an order for a new trial in the event of an acquittal.
What this whole issue emphasizes, however, is that even where a journalist in the room is attempting to give live updates of proceedings, you only get what they can manage to hear, process and type and often you will not be getting the full context especially of complicated legal arguments and rulings.