HEARSAY

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...

Buy the full version of these notes or essay plans and more in our Evidence and Criminal Procedure Notes.