Hearsay- Isabella Cecere

Hearsay- Isabella Cecere

1. Definition

   • Out of court assertions that are either, oral, written or sourced from conduct are hearsay
   • Inadmissible as evidence of the truth
     • Proffered to tell the truth
       • In Subramaniam [1956] 1 WLR 965, 9 (Lord Wilberforce) an out of court statement that the defendant received threats was not tendered to prove the truth of the threats but tendered to prove threats were made which caused the defendant to fear for his life leading to join the rebels
   • The evidence will only be hearsay if the assertion is not made by the person giving oral evidence in the proceedings

2. Rationale

   • Lord Normand in Teper v The Queen [1952] 1 AC 480, 486 described the rationale behind hearsay
     • It is not the best evidence
     • It is not delivered on oath
     • Unreliable
     • The truthfulness and accuracy of the person whose words are spoken to by another witness cannot be tested by cross‐examination
     • The light which his demeanour would throw on his testimony is lost

3. Examples

   • Implied assertion identifying the defendant: Teper v R [1952] AC 480
   • Implicit assertion regarding the victim's state of mind was inadmissible hearsay as it is not relevant: R v Allen [2010] SASC 236

4. Exceptions to the general rule

   • Statutory exceptions under the Evidence Act 1929 (SA)
     • s 34C: Documents in civil proceedings
       • Documentary evidence of statements if the maker had personal knowledge of the facts or document in question
     • S 45: Admits apparently genuine documents related to transportation and shipping i.e. airline tickets
     • S 52: Apparently genuine documents
       • Document was made by someone who had knowledge of the matters set out in the document which can extend to forensic reports: R v Keogh (No 3) (2014) 121 SASR 410
       • Applies in criminal and civil proceedings
       • Whether the expert had the opinion is a matter of fact: R v Keogh (No 3) (2014) 121 SASR 410
       • Extensive discretion to exclude the documents
     • S 53: Business records in both civil and criminal proceedings. Not statements
       • Extends to 2nd hand hearsay: Technilock (Australia) Pty Ltd v Mondami Pty Ltd [1999] SASC 320
       • Extensive discretion to exclude the documents
   • Common law exceptions
     • Deceased persons
       • Dying declarations
         • Only where the declaration is that of a victim to a later charge of the murder or manslaughter of that victim and where, at the time of the declaration, the victim holds a hopeless expectation of death
         • Statements by victims which do not fulfill these strict criteria may still be admissible if made under such pressure of events that the conditions for the res gestae hearsay exception are satisfied: Western Australia v McColl [2016] WASC 186
       • Statements by testators about the contents of their wills
       • Statements
         • Statements made against proprietary interest
         • Statements made in the course of duty: R v O’Meally [1952] VLR 499
         • Statements concerning public and general rights
         • Statements regarding Pedigree
         • The exception only applies where there is a clear duty to report and the reporter has observed the facts reported: R v O’Meally [1952] VLR 499
     • Admissions and confessions
       • Declarations against interest
       • 3rd party confessions are inadmissible: R v Van Beelen (1974) 9 SASR 163
     • Res gestae
       • Statements which form part and parcel of the events in question
       • Cannot be made after the event: Vocisano v Vocisano (1974) 130 CLR 267
         • Statements made after the event may be admissible if there is a lack of concoction: Armstrong v State of Western Australia (2012) 220 A Crim R 274
           • Adopted by the High Court in R v Benz (1989) 168 CLR 110 by Mason CJ, Dawson, Gaudron & McHugh JJ
     • Statements of feelings, state of mind, intention etc
       • Walton v R (1989) 166 CLR 283 conflicting with Ramsay v Watson (1961) 108 CLR 642
         • Hearsay or non- hearsay purpose?
           • Does it otherwise meet the requirements of the exception
     • Telephone exception declined: Bannon v R (1995) 185 CLR 1
   • Uniform Evidence Act 1995 (Cth)
     • Admissions
       • s 65(2)(d)
         • 3rd party confessions can be adduced to prove the defendant did not commit the crime
     • Deceased persons
       • Statements by a deceased in the course of their duty can be adduced: s 65(2)(a)
     • Dying declarations not recognised
     • Statements of feelings, state of mind, intention etc recognised: s 66A
     • 1st hand hearsay is generally admitted: s 62; Vincent (2002) 133 A Crim R 206
       • Civil
         • Maker available: s 64
           • Maker should be called unless it will cause undue expense, delay or is reasonably impracticable
           • If in written form the document must not be tendered until after evidence in chief: s 64(4)
         • Maker unavailable: s 63
           • Evidence still admissible provided notice has been provided: ss 67-68 and there is evidence relating to the credibility of the unavailable witness: s 108A
       • Criminal
         • Maker available: s 66
           • Previous statement cannot be adduced unless it was made when the events in question were fresh in their memory
         • Maker unavailable: s 65
           • Made under a duty
           • Where the representation was made shortly after the asserted fact occurred and in circumstances which make it unlikely that the representation is a fabrication
           • Highly unlikely it was unreliable
           • Not in the interests of that person
           • Prior proceedings
       • Definition of unavailable e.g. deceased: s 4
       • Reasonable notice: s 67
       • Business records: s 69
         • Similar to SA position
     • 2nd hand hearsay exceptions
       • Relate to business records, computer outputs etc.
     • ss 70-75 enact further exceptions

5. Hearsay rule under the uniform Evidence Act 1995 (Cth)

   • Definition: s 59
     • The maker must have intended to assert the fact
   • S 59 was amended as a result of R v Hannes (2000) 158 FLR 359 [330 – 361]: Assumption people intend what they say
     • Insertion of s 59(2)(a)
       • The court is required to look at the circumstances to asses whether the assertion was intentional
   • When a statement is made out of court but does not fall within the definition of hearsay, the hearsay prohibition does not apply: s 60

6. Scope

   • Excludes machine generated representations and animals communications
   • Includes implied and express assertions