#9224 - Hearsay - Evidence Law

Hearsay

Section 59(1) EA: Evidence of a previous representation made by a person is not admissible to prove the existence of a fact it can reasonably be supposed the person intended to assert by the representation. (2) Such a fact is referred to as an “asserted fact”

1. Is the evidence a previous representation? *go down the ranks

   • A previous representation is any representation made other than in the course of giving evidence in the proceedings

   • Can be

     • express/implied s3

     • inferred from conduct e.g. sign language, gestures

     • not intended by its maker to be communication to or seen by another person e.g. diary, letter

     • representation that for any reason is not communicated e.g. unsent email

   • Wouldn’t include internet history as this is not a previous representation by a person (no human interaction)

   • Could be when someone has told them something

   • May also relate to something a witness has said in the past

2. Can it reasonably be supposed that the person intended to assert the fact?

   • Was it intended or unintended?

     • The Court can look at the circumstances surrounding the representation to gauge intent s59(2A)

       • Whether intention is present is an objective test

       • Might look at the age of the person Walton

       • Might look at whether it was a spontaneous reaction Benz

   • Unintended representations are not hearsay Walton; Ratten; Benz

     • They are likely to have a higher degree of reliability e.g. “Hi John” vs “It’s John”

     • However watch out for implied intended assertions e.g. “Hello Jane” to trick your parents into thinking it is someone else

     • An implied assertion of fact assumed in an intended express assertion (such as writing something down) may be said to be ‘contained’ within that intention Hannes

3. Was the evidence brought to prove the existence of a fact?

   • Examples

   • Hearsay and inadmissible if tendered to prove that a statement was true Subramanian v Public Prosecutor

   • Not hearsay and admissible if tendered to show that a statement was made and the fact it was made is relevant Subramanian

     • The fact that a statement was made is frequently relevant in considering the mental state and conduct of the witness. Link to s60 if appropriate (if the fact the statement is made is relevant for a non-hearsay purpose)

   • Distinguish between evidence brought to show that a statement was made and evidence brought to prove a fact contained within that statement

   • It is only hearsay if brought to prove the truth of a fact within the statement

4. Conclude: Because this evidence of a previous representation is being admitted to prove the existence of a fact that the person intended to assert, it is hearsay and is excluded under section 59 EA

5. If the evidence is hearsay, apply any exceptions

   • Remember your discretions 135, 136

     • Even if the exclusions allow for the hearsay evidence to be admitted, a party can argue that it should be excluded because of the following:

     • The factors of s135: The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might

       • be unfairly prejudicial to aparty; or

       • be misleading or confusing; or

       • cause or result in undue waste of time.

     • The factors of 137: In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused.

     • The factors of 136: The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might be unfairly prejudicial to aparty; or be misleading or confusing.

     • Unreliability warning: The trial judge must if requested (unless there is a good reason not to) warn the jury about the dangers of hearsay evidence. The warning must identify the matters which may make it unreliable and warn them of the need for caution in accepting the evidence 165

   • Can’t rely on exceptions if the person is not competent

     • 61(1) Can’t use a previous representation to prove the existence of an asserted fact when the person who made the representation was not competent to give evidence under 13(1) (at the time the representation was made)

     • 61(2) but doesn’t apply to a contemporaneous (argue this is quite strict) representation made by a person about his or her health, feelings, intention, knowledge or state of mind

     • 61(3) Assumed someone is competent. Burden of showing incompetence is on the party opposing the admission of the evidence

   • Exceptions for representations relevant for a non-hearsay purpose 60

     • 60(1) The hearsay rule does not apply to evidence of a previous representation that is able to be adduced for another purpose other than proof of an asserted fact

       • That is, once it is admitted for a non-hearsay purpose, it can be used to prove that fact that is asserted in the representation

       • Example: Prior statements of witnesses put to them in cross-examination. They are admissible either as evidence of a prior inconsistent statement (credibility) or a prior consistent statement (credibility). These are now to be regarded as evidence of the facts they assert and not simply relevant to credit.

     • 60(2) This section applies whether or not the person who made the representation had personal knowledge of the asserted fact

     • 60(3) Section 60 applies to both first and second hearsay, but does not apply to admissions

       • Thus, evidence of B that A told her that C had confessed is not admissible to prove the confession.

       • Inserted as a response to Lee v The Queen

   1. Is it “first-hand” hearsay?

      • First hand hearsay means a previous representation made by a person (the “maker”) who had personal knowledge

        • They have personal knowledge if their knowledge of the fact was (or might reasonably be supposed to have been) based on something that the person saw, heard or otherwise perceived other than a previous representation made by another person about the fact 62(2)

        • A person has personal knowledge of the asserted fact if it is a fact about the person’s health, feelings, sensations, intention, knowledge or state of mind at the time the representation referred to was made 62(3) Walton; Lee

      • Note: a representation contained in a document is taken to have been made by a person if: s4

        • The document was written by them, or the representation as recognised by the person as his or her representation by signing, initialling or marking the document

   2. Is the maker available?

      • Maker is the person who made the representation (not the person giving the evidence)

      • Dictionary, Part 2, clause : a person is not available if they are dead, not competent, it is unlawful for them to give evidence, or if reasonable steps have been taken to find the person and secure attendance, but without success

   • Exception in a civil proceeding where the maker is not available s63(1) (for “first-hand” hearsay only)

     • 63(2) The hearsay rule does not apply to

       • Evidence given by a person who perceived the previous representation being made, or

       • A document which contains the representation, or another representation to which it is reasonable necessary to refer to understand the representation

       • Notice requirements

     • Can exclude using s 135

   • Exception in a civil proceeding where maker available s64(for “first-hand” hearsay only)

     • 64(2) The hearsay rule does not apply to

       • Evidence of the representation that is given by a person who say, heard or otherwise perceived the representation being made; or

       • A document which contains the representation, or another representation to which it is reasonable necessary to refer to understand the representation

       • Notice requirements

     • IF a representation if it would cause undue expense or undue delay, or it would not be reasonably practicable to call the person to give evidence

       • A party can object to this no later than 21 days after notice is given 68

     • 64(3) if the person who made the representation has been called or will be, the hearsay rule doesn’t apply to that person or a person who perceived the representation. Prior representations made by that witness are admissible provided they were made when the asserted fact was still fresh in the witness’s memory.

     • 64(4) If you have a document containing that representation, can’t adduce it until the person has given oral evidence of the representation

     • Can exclude using s 135

   • Exception in a criminal proceeding where the maker is not available s65 (for “first-hand” hearsay only)

     • Note: not for documents

     • 65(2)The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation if the representation: (notice requirements)

       1. Was made under a duty to make that representation; or

       2. Was made shortly after the asserted fact occurred in circumstances that make it unlikely it was fabricated, Conway v R; or

          • Shortly after

            1. Not strictly contemporaneous, but ask whether the time delay has taken the representation outside the likely temporal realm of statement that may be considered to be reliable Williams v R

          • Unlikely that it was fabricated Harris; Lubik

       3. Was made in circumstances that make it highly probable that the representation is reliable Conway v R; or

          • No time limit

          • Consider all the circumstances Williams v R

            1. Was it made in the course of an interrogation

            2. Did the person have a reason to say one thing over another

            3. Might look at evidence of inconsistent statements in the past or the conduct of the person at other times if the affect the reliability/credibility of the declarant at the time of making the statement

            4. Are they under the influence of drugs Conway

       4. Was

          1. Against the interests of the...