The Hearsay Statement and the Unavailable Witness
Tomas is charged with assaulting Lee outside a hotel. The only eyewitness, Sam, gave a statement to police two days later saying, 'Tomas hit Lee first, Lee was just defending himself.' Sam then moved overseas and cannot be located despite reasonable efforts; he will not give evidence by video link because of time zones and work commitments. The prosecution wants to tender Sam's police statement. Lee will testify but his account is inconsistent and he admits he had been drinking. There is CCTV showing the punch but not who threw it first. Tomas says Lee attacked him and he acted in self-defence.
1. Can Sam's statement be admitted, and on what basis?
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The statement is hearsay if tendered to prove the truth of its contents. The prosecution must identify an exception. The most likely route is the unavailable-witness exception: Sam is unavailable because he cannot reasonably be located or compelled to attend, and reasonable efforts have been made. The court must be satisfied of unavailability and that the statement was made in circumstances making it reliable - a contemporaneous police statement two days after the event, signed and adopted, supports reliability. The absence of cross-examination is a significant factor weighing against admission and the court retains a discretion to exclude if the unfairness outweighs probative value.
If admitted, the statement is evidence of the facts stated, but the jury must be directed about its untested nature. Alternatively, the prosecution might argue the statement is admissible as a prior consistent statement if Sam's credibility were attacked, but that route is limited and usually requires the maker to testify. The video-link refusal is not a lawful excuse if the court can compel remote testimony; the prosecution should seek an order for remote evidence before relying on unavailability.
2. How should the jury be directed on self-defence and the competing accounts?
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The prosecution bears the burden of disproving self-defence once the issue is raised by the evidence. The jury must consider whether Tomas believed it was necessary to act in self-defence, and whether that belief was reasonable in the circumstances as he perceived them. The Crown must negate at least one limb beyond reasonable doubt.
The direction should address: (1) the CCTV shows a punch but not the sequence, so it cannot resolve who initiated; (2) Lee's intoxication and inconsistent account affect his reliability but do not by themselves prove the defence; (3) Sam's hearsay statement, if admitted, supports the prosecution but is untested; (4) Tomas's account must be assessed against the objective circumstances. The jury should be told that even if they reject Tomas's version, they must still be satisfied the prosecution has negated self-defence on the whole of the evidence.
A useful structure is: identify the factual issue (who struck first), identify the evidence going each way, apply the burden, and warn against reasoning that because Lee was drunk his account must be false. The verdict must rest on whether the prosecution has proved unlawful force beyond reasonable doubt.