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MR. TANSEY: “Each of those requests was, of course, evidence of the state of mind of the person
making the request. He wished to be supplied with drugs and thought the appellant would so supply
him. It was not evidence of the fact that the appellant had supplied or could or would supply the
person making the request. But the state of mind of the person making the request was not an issue
at the trial; accordingly evidence of his request was irrelevant and therefore inadmissible. If the
prosecution had sought to call any of the persons who made such requests, merely to give evidence
of the making of the request, in order to establish their appetite for drugs and their belief that such
appetite would be satisfied by the appellant, such evidence could not properly be admitted.”
I mention that about the state of mind. It does not matter about the state of mind of Mr. E -- that is
not an issue at the trial -- or the state of mind of Mr. Oschenko. It is the state of mind of this
defendant; that is the key point.
MR. JUSTICE BLOFELD: I am not certain this is relevant.
MR. TANSEY: I mention state of mind only because your Lordship ----
MR. JUSTICE BLOFELD: Yes.
MR. TANSEY: It was raised at one particular point.
MR. JUSTICE BLOFELD: Yes.
MR. TANSEY: My Lord page 255 D, where Lord Ackner quotes from the Privy Council in
Subramanium v. Public Prosecutor:
“Evidence of a statement made to a witness by a person who is not himself called as a witness may
or may not be hearsay. It is hearsay ----
MR. JUSTICE BLOFELD: Which page?
MR. TANSEY: Sorry, 255 letter D.
MR. JUSTICE BLOFELD: This is quoting Subramanium?
MR. TANSEY: Yes.
“Evidence of a statement made to a witness by a person who is not himself called as a witness may
or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish
the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed
to establish by the evidence, not the truth of the statement, but the fact that it was made.”
My Lord, our case is that in this case the prosecution rely upon the statement, not merely the fact
that it was made but as the foundation for establishing that Viktor Oschenko was in fact a KGB
agent at that time and was seeking to suborn this witness.
MR. JUSTICE BLOFELD: I do not think that is right, Mr. Tansey. They are relying, as I
understand it, on the fact that it was made, and they are then saying that the course of conduct, as I
see it -- if Mr. E gives evidence and comes up to proof on it, they are saying that the course of
conduct by Oschenko including these conversations shows that he was a Russian case officer and
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