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MR. JUSTICE BLOFELD: So it was being used as evidence that Chippie was going to supply
drugs; that is the factual equivalent of the phrase “the truth of the proposition asserted.”
MR. TANSEY: Yes, it is the telephone calls and the persons coming to the residence, so the Crown
were seeking to use that to establish his case that the defendant was therefore possessed or was
supplying drugs. So, my Lord, they were there seeking to use the statement of the officers, who
clearly were giving the evidence of what these telephone callers had said, to impliedly assert as a fact
that these people had rung up, and there was only one inference, namely that they were applying for
drugs. The object of tendering the evidence would be to establish the truth of what is contained in
the statement. That is precisely what the rule prohibits, my Lord. That is exactly how the Crown are
using the statement of Mr. E, to rely upon it to assert the truth of the contents, which include the
directions or conversations that took place with Mr. Oschenko. They are saying not merely “This is
said and done”, but going on and saying, “This is exactly how a KGB agent behaves, and this clearly
shows therefore what was happening between Mr. E and Mr. Oschenko, and therefore, members
of the jury, you may well therefore establish” etc. etc. They are relying upon it as a fact to prove that
Viktor Oschenko was running this person as a KGB agent and that is exactly what they are not
allowed to do.
MR. JUSTICE BLOFELD: There it is. I think I have got your point.
MR. TANSEY: That is the proposition and, in my submission, they cannot use it in this way to
establish that the Viktor Oschenko is the Viktor in the telephone call and, my Lord, that all the
conversations should not -- any reference to any conversation should not be admitted, and your
Lordship may then say that, without the conversation, the evidence is pointless. Therefore I would
submit the whole of the evidence should be ruled inadmissible.
MR. JUSTICE BLOFELD: Mr Solicitor, I would like your help. As you did not deal with R. v.
Kearley, could you possibly look at page 261, which is part of Lord Oliver of Aylmerton’s
judgement. He cites the passage at E from Ratten v. The Queen approvingly, and then summarises it
at H:
“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?”
It seems to me that that is arguably relevant to this case. Are you saying that any of the
conversations that E had with Oschenko are being introduced by the Crown “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”, or are you doing it simply as evidence of the fact of the
conversation?
THE SOLICITOR GENERAL: The latter: to show the nature of the relationship. Can I refer you to
page 269.
MR. JUSTICE BLOFELD: Yes, you are doing it testimonially.
THE SOLICITOR GENERAL: Not testimonially.
MR. JUSTICE BLOFELD: Simply as evidence of the fact of the conversation?
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