What is Hearsay?

What is Hearsay?

1. Assertions, oral or in writing, made out of court are regarded as Hearsay

   • Lord Wilberforce; Subramaniam [1956] 1 WLR 965, 970:
     • "Assertions other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact asserted".
   • As per Mason CJ in Walton (1989) 166 CLR 283:
     • As per Mason CJ in Walton (1989) 166 CLR 283: It is hearsay and inadmissible when the object 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.

2. Rational for Hearsay?

   • Lord Normand: Teper v The Queen (1952) 1 AC 480
     • (1) It is not the best evidence and (2) it is not delivered on oath. The (3) truthfulness and accuracy of the person whose words are spoken to by another witness cannot be tested by cross‐examination, and (4) the light which his demeanour would throw on his testimony is lost.

3. Purpose of hearsay?

   • Applies t p both prosecution and Defence
     • R v Turner (1975) 61 Cr App R 67.
     • Myers v DPP [1965]1 AC 100
       • If the only relevance is the truth of the facts contained in the assertion and it is being tendered to prove those facts the assertion will be inadmissible hearsay

4. Sccope (applies to)

   • (i) Express assertions ‐ verbal, non‐verbal/conduct and written
     • (ii) Implied assertions: R v Walton (1989) 166 CLR 283, 292-293 and 303-304; R v Benz (1989) 168 CLR 110, 118 and 143; R v Pollitt (1992) 174 CLR 558, 566-567, 595 and 620 and R v Rose (2002) 55 NSWLR 701 clearly extend the rule to so-called implied hearsay.
       • (iii) But the hearsay rule does not apply to machine generated representations or animal communications: Rook v Maynard (1993) 126 ALR 150

5. UEA

   • S 59
     • S 60

6. Exceptions To hearsay

   • Common Law
     • Statutes
       • Res Gestae (likelyhood evidence could not have been made up)
         • admissibility of evidence by reason of its overwhelming relevance and reliability
           • enables evidence to be received as truth of its contents even though it may infringe one or more of the exclusionary rules
         • Four main heads of the doctrine
           • R v O'Leary (1946) 73 CLR 566; Incidents or events regarded as part of the transaction in issue.
             • Statements made by a person as to his or her contemporaneous physical sensations or general state of health; Ramsay v Watson (1961) 108 CLR 642; R v Perry (No. 2) (1981) 28 SASR 95, 96-98; UEA s72.
               • UEA s 72; Statements made by a person as to his or her state of emotion or belief.
                 • Vocianso v Vociasno; Armstrong v State of Western Australia; Spontaneous statements made by participants in or observers of an event in issue.
                   • UEA s 65(2)(b)
       • EA ss 45, 47, 52, 53.
         • UEA; ss 63, 64, 66, 69, 70, 71, 72, 73, 74, 92,93.
       • R v Keogh (No. 3) (2014) 121 SASR 410 [12-18] Stevens v CSR Ltd [2015] SADC 57 Technilock (Aust P/L) v Mondami [1999] SASC 320
     • Admissions/Confessions
       • Declarations against interest: Sussex Peerage (1844) 8 ER 1034
         • Declarations in the Course of Duty/Public or General Rights/as to Pedigree (including statements as to close family relationships): R v Benz (Mason CJ)
           • Dying Declarations . R v Hope [1909]/
             • Post‐Testamentary Declarations of Testators Concerning the Contents of Their Wills
               • Statements of Testators in Testator's Family Maintenance Proceedings
                 • Statements in Public Documents.
                   • Confessions against penal interest made by a suspect
   • Inherently Reliable Evidence
     • As per Mason CJ and Deane J in Walton; Hearsay might be admitted as truth of its contents if it was uttered or expressed in circumstances suggesting its inherent reliability.
       • This is not a firm or settled basis for any exceptions as stated in R v Bannon (1993) 185 CLR 1; Myers v DPP [1965] AC 101; R v Baker (2012) 289 ALR 614 (especially Heydon J).
         • S 65 (2) (c).