Admissibility of Hearsay Evidence

HMA v Stewart & another

This was a murder trial which concluded on Monday 3rd October in Glasgow. At an early point in the trial, the cross examination of the first Crown witness by Senior Counsel for the first accused, questions were asked which were designed to elicit evidence of hearsay from the deceased. No application under Section 259 had been lodged in advance of the trial. I took objection on the basis that without such an application the evidence was inadmissible. After argument on the first day the trial Judge, Lord Bracadale, continued the case overnight to allow the Crown to consider its position on the particular issue of whether or not Section 259 superseded the common law in relation to hearsay of a deceased. Surprisingly there appeared to be no decided law on the matter. The unreported case of HMA v Clancy referred to in Renton and Brown had never produced an opinion and the case of McKenna v HMA 2003 SCCR 399 had remarks, albeit obiter from Lord Caplan suggesting that the common law route was still open.

On the second day the Crown indicated to the court that they agreed that Section 259 superseded the common law. After hearing further argument Lord Bracadale decided to bring in two consulting Judges to consider the matter with him. At 2pm that day with three Judges assembled the Crown decided that in fact they agreed with the first accused’s position that Section 259 did not supersede the common law! This volte face did not endear them to the Court who decided then to continue the case for two days to allow the Crown to fully consider their position and to allow all parties to consider the position particularly in relation to Statutory Interpretation.

On Monday 19th September Lord Bracadale sat with Lords Doherty and Bannatyne and heard argument on the matter. The Crown maintained their position that the common law survived as did Senior Counsel for the first accused. Relying primarily on the Law Commission Report I argued that it was clear that the intention of the legislation was to create a legislative basis for the admission of hearsay evidence in relation to the circumstances set out within the relevant section.

Having considered the matter the Court decided that Section 259 did supersede the common law in respect of hearsay of a deceased and accordingly, without such an application, the evidence was inadmissible.

The court allowed an application to be made, although late, as a result of the uncertain state of the law and an application, on a very limited basis, was allowed. It would be surprising however if a Court in the future allowed such an application in those circumstances.

It Is apparently the intention of Lord Bracadale to issue an opinion on the matter. However the law now seems clear that whoever wishes to lead evidence of the hearsay of a deceased must lodge an application under Section 259.

Brian McConnachie QC

24th October 2011