#7509 - Hearsay - Evidence and Criminal Procedure

Definitions

"representation" includes:

(a) an express or implied representation (whether oral or in writing), or

(b) a representation to be inferred from conduct, or

(c) a representation not intended by its maker to be communicated to or seen by another person, or

(d) a representation that for any reason is not communicated.

“previous representation”: any out-of-court representation

“maker”: the person who made the representation

“fact intended to be asserted”: what did the maker mean by their representation?

• This usually arises as an issue when there is an implied meaning

• Eg) what is implied by silence or shrugging shoulders and walking away

• There is meaning however the question is what does it mean

• What meaning was intended to be conveyed

• At common law there was no difference between asserted and unasserted intentions

• The Evidence Act provides there is a difference

“hearsay use”: using the representation to prove the intended fact

The hearsay rule

Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation. In determining this, the court may have regard to the circumstances in which the representation was made.

Exceptions to the hearsay rule

• first-hand hearsay:

• civil proceedings, if the maker of the representation is unavailable (section 63) or available (section 64)

• criminal proceedings, if the maker of the representation is unavailable (section 65) or available (section 66)

• contemporaneous statements about a person’s health etc (section 66A)

• business records (section 69)

• tags and labels (section 70)

• electronic communications (section 71)

• Aboriginal and Torres Strait Islander traditional laws and customs (section 72)

• marriage, family history or family relationships (section 73)

• public or general rights (section 74)

• use of evidence in interlocutory proceedings (section 75)

• evidence relevant for a non-hearsay purpose (section 60),

• admissions (section 81)

• representations about employment or authority (section 87 (2))

• exceptions to the rule excluding evidence of judgments and convictions (section 92 (3))

• character of and expert opinion about accused persons (sections 110 and 111).

Examples:

1. D is the defendant in a sexual assault trial. W has made a statement to the police that X told W that X had seen D leave a night club with the victim shortly before the sexual assault is alleged to have occurred. Unless an exception to the hearsay rule applies, evidence of what X told W cannot be given at the trial.

2. P had told W that the handbrake on W’s car did not work. Unless an exception to the hearsay rule applies, evidence of that statement cannot be given by P, W or anyone else to prove that the handbrake was defective.

3. W had bought a video cassette recorder and written down its serial number on a document. Unless an exception to the hearsay rule applies, the document is inadmissible to prove that a video cassette recorder later found in D’s possession was the video cassette recorder bought by W.

Subramaniam v Public Prosecutor [1956] 1 WLR 965

Facts: Subramaniam was taken hostage by Chinese Communists. At this time the Chinese were regarded by the British as terrorists. When captured by the British Subramaniam had numerous rounds of ammunition on him but did not have any weapons. He was charged with possession of ammunition for the purpose of helping a terrorist enemy, which would carry a sentence of death. He pleaded a defence of duress, claiming that he had no choice as the terrorists had threatened to kill him if he did not follow through with their requests. As part of the defence he wanted to testify about these conversation he had with the terrorists. At trial these conversations were found to be hearsay and excluded. On appeal the decision was overturned and the evidence was admitted on the basis that the conversation would be hearsay only if the purpose of submitting the evidence was to prove the contents of the statements. The issue for the Court was whether the testimony would constitute hearsay.

Held: The Privy Council held that the statements were not hearsay and upheld the appeal. The Council found that since the statements were not used in order to prove that the terrorists wanted to kill him, rather it was in order to prove whether the defendant was reasonable in his actions to comply as he believed they wanted to kill him, the hearsay rule should not apply. The truth of the statements made by the terrorists were not significant, it is merely the fact that they said something that would create a reasonable apprehension in the defendant. The Privy Council Held: “In ruling out peremptorily the evidence of conversation between the terrorists and the appellant the trial judge was in error. Evidence of a statement made to a witness . . . may or may not be hearsay. It is hearsay and inadmissible when the object [purpose] 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. The fact that the statement was made, quite apart from its truth, is frequently relevant . . . “

It is only hearsay if it used to prove the truth of what is contained in the statement. It is not hearsay if it used just to prove that the statement was made. Only when it is tendered for the hearsay use then it is caught by the hearsay rules

R v Hannes (2000) 158 FLR 359

Facts: Simon Hannes was on trial for insider trading. He was a merchant banker at Macquarie Bank. Macquarie Bank was their adviser. TNT was being taken over by a Dutch Company He was charged with acquiring shares in TNT based on his secret knowledge of the takeover. His defence was that he did not purchase the shares rather it was a man by the name of Mark Booth. The Prosecution argued that Mark Booth was a fictional person created by the defendant for the purpose of buying the shares. The prosecution therefore had to prove that the defendant was Mark Booth. The Crown had numerous documents which were taken from the defendants note book. The Crown also had the indentations from the pages written on top of the notebook and documents from his bin. It needed to be determined what was intended by those representations. Hannes had made a list of how he would go about the scheme. It had to be determined what was intended by making that list and what was intended by throwing those documents in the bin.

Held: The Court of Criminal Appeal considered this case. Spiegelman J considered looking at what was intended by the maker is one way of looking at what was intended by the assertion, however the defendant is not likely to assert that they indented to do something which they are being charged with doing. Therefore there has to be other ways that determine what was intended by the assertion. This is why the amendment enables the consideration of other circumstances to determine what can reasonably be supposed.

Exception to the hearsay rule: First hand hearsay

As [evidence] is hearsay, it may be admissible under the first hand hearsay exception (s62). Personal knowledge is the gateway into the first hand hearsay exception. The representation made by [maker] was first hand because [he/she] [saw/heard/otherwise perceived] the [fact i.e. bank robbery]. It is not whether [maker] saw or perceived what someone else said about the [fact]. .

Example:

• A witness gives evidence about what she heard X say and it is reasonable to suppose that X is speaking from personal knowledge or observation, and not from what someone else told X about the matter, then the witnesses’ evidence to that effect will be first hand hearsay.

Dunstar v R

Facts: A witness testified that George telephoned him to tell him that he (George) had received a bomb threat from a woman.

Held: This was not first-hand hearsay as the assertions made by George were based on what the woman told him and not his personal knowledge or observation.

R v Privett

Facts: A witness gave evidence of assertions by a doctor that his life was in danger as two brothers were after him.

Held: This was not first hand hearsay as the doctors assertions were not made from personal knowledge but rather from what others had told the doctor about the brothers threats.

Maker Available

In order for first hand hearsay to be admissible as an exception to the hearsay rule, [maker] as the maker of the representation, must be available. Whether or not [maker] is available is defined in section 4 of the Evidence Act.

[Witness] is available to give evidence about a fact because none of the circumstances in section 4 of the Act apply. [Go to below civil/criminal distinction].

Maker Not Available

[Witness] is not available to give evidence about a fact because [choose from the following]

1. the person is dead, or

2. the person is, for any reason other than the application of section 16 (Competence and compellability: judges and jurors), not competent to give the evidence about the fact, or

3. it would be unlawful for the person to give evidence about the fact, or

4. a provision of this Act prohibits the evidence being given, or

5. all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or to secure his or her attendance, but without success, or

6. all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the...