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Mr. Tansey however takes a further point on the conversations between Mr. Oshchenko and Mr. E.
He submits that those conversations are hearsay, in the sense that they are conversations between
two parties in the absence of this accused. To that extent of course he is absolutely right. He says
that those conversations are effectively being used testimonially in order to assist the Crown in
proving that this defendant was being run by Mr. Oshchenko.
It is clear from the statement of Mr. E that there is no mention of Mr. Smith in those conversations,
as I have already said. Mr. Tansey relies on the recent House of Lords case R. v. Kearley, [1992] 2
A.C. page 228. He has referred this Court to specific passages of Lord Ackner’s judgement,
specifically at page 253 at E:
“It was not evidence to 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.”
He submits that, on that basis, the state of mind of Mr. Oshchenko when talking to Mr. E is not
relevant as an issue at this trial. With that the Court agrees, but it nevertheless considers Mr.
Tansey’s submissions there are not applicable because that is not the issue that this Court has to
decide. It seems to this Court that the matters that the Court has to decide are dealt with later in
Lord Ackner’s judgement at page 255 D, where he sets out a passage from Subramanium v. Public
Prosecutor [1956] 1 W.L.R. 965, 970:
“Evidence of a statement made to a witness by a person who is not himself called as a witness 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.”
That point was dealt with in the judgement of Lord Oliver of Aylmerton at 261 at E, when he as it
were cited Ratten v. The Queen, 72 A.C. 378, 387 where Lord Wilberforce said:
“The mere fact that evidence of a witness includes evidence as to words spoken by another person
who is not called is no objection to its admissibility. Words spoken are facts just as much as any
other action by a human being. If the speaking of the words is a relevant fact, a witness may give
evidence that they were spoken. A question of hearsay only arises when the words spoken are
relied on ‘testimonially’, i.e. as establishing some fact narrated by the words.”
Lord Oliver at the bottom of that page at H dealing with the case of R. v. Kearley continues:
“Thus the question which presents itself in the instant appeal can be expressed thus: was the
evidence of the police officers being tendered simply as evidence of the fact of the conversation or
was it introduced ‘testimonially’ in order to demonstrate the truth either of something that was said
or of something that was implicit in or to be inferred from something that was said?”
Mr. Tansey submits that, despite the Crown saying that they in fact wished to adduce the evidence
on the first leg of Lord Oliver’s test, simply as evidence of the fact of the conversation, that on
analysis is not the correct approach, because once the conversations come into evidence, whatever
view the Crown may take of them, the jury may use those conversations to help them, if they are
minded so to do, to come to the conclusion that this defendant was being run by Viktor Oshchenko.
That indeed is a possibility, but on further analysis that is not, in the Court’s view, because these