Hearsay Prohibition - created from Mind Map

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Exceptions

Definition

Rationale

Purpose of Admission

Scope

Inherently Reliable Evidence

Common Law Exception

Red Gestae

Statutory Exceptions

hearsay might be admitted as truth of its contents if it was uttered or expressed in circumstances suggesting its inherent reliability: In Walton by Mason CJ and Deane J

This would represent a departure from the hearsay rule but there is as yet no firm or settled basis for any such exception:, R v Bannon (1993) 185 CLR 1; Myers v DPP [1965] AC 101; R v Baker (2012) 289 ALR 614.

Example in Walton: an otherwise hearsay comment during or immediately after a phone call would be admissible to establish the identity of the caller if the assertion was reliable and the risk of concoction or distortion could be excluded.

Admissions

Declarations against Interest

Declarations in the course of duty

Declarations as to pedigree (including statements as to close family relationships): R v Benz (1989) 168 CLR 110 (Mason CJ)

Dying Declarations made in a settled and hopeless expectation of death are an old exception to the rule against hearsay: R v Hope [1909] VR 149; R v Rogers [1950] SASR 102; Western Australia v Dylan Anthony McColl [2016] WASC 186.

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

Does not apply to statements against penal interest at common law– but under s s65 (2) (d) Cth EA it does so. Thus at common law 3rd party confessions are inadmissible: R v Van Beelen (1974) 9 SASR 163 but under the Cth EA they can be adduced to prove that the defendant did not commit the crime.

The doctrine of res gestae concerns the admissibility of evidence by reason of its overwhelming relevance and reliability.

Translates to ‘the transaction’.

Criticised as vague and as no more than a pragmatic cloak to admit otherwise inadmissible evidence.

Four main heads to the doctrine

UEA s 65(2)(b) – admissibility in criminal proceedings where the representation was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication.

1. Incidents or events regarded as part of the transaction in issue: R v O'Leary (1946) 73 CLR 566.

2. 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.

3. Statements made by a person as to his or her state of emotion or belief. UEA s 72.

4. Spontaneous statements made by participants in or observers of an event in issue. If such a statement becomes admissible as part of the res gestae, it is received as evidence of the truth of its contents as an exception to the hearsay rule. Recent authorities suggest the test in Australia may inocorporate both ‘substantial contemporaneity’ and ‘lack of concoction’: see R v Duong [2011] SASCFC 100

Hearsay Statements in Documents

Evidence Act 1995 (Cth)

Evidence Act (1929) SA

s 45—Documents relating to transportation of persons or goods

s 47—Admission of banking record in evidence

s 52—Admission of certain documents in evidence

s 53—Admission of business records in evidence

covers oral ‘representations’ and ‘representations’ in ‘documents’

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

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)

public or general rights (section 74)

use of evidence in interlocutory proceedings (section 75)

representations about employment or authority (subsection 87(2))

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

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);

marriage, family history or family relationships (section 73)

An out of court statement which is repeated in trial for the purpose of proving the statements made as fact

‘An assertion other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact asserted.’

Walton (1989) 166 CLR 283 per Mason CJ: The hearsay rule applies only to out‐of‐court statements tendered for the purpose of directly proving that the facts are as asserted in the statement.

Teper v The Queen [1952] 1 AC 480 Lord Normand

It is not the best evidence

it is not delivered on oath

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.

Examples where Hearsay will be admitted as original evidence

Where the fact of making the assertion is the fact in issue, eg a defamatory statement.

Statements which form a verbal portion of a relevant act, accompanying and explaining that act: see Ratten v R [1972] 1 AC 378; R v McCay [1990] 1 WLR 645.

Where the fact of making the assertion, whether it be true or not, is relevant to a fact in issue: Subramaniam v Public Prosecutor [1956] 1 WLR 965; Ratten v R [1972] 1 AC 378.

Where the statement goes to the state of mind, intention or knowledge of the maker, or the person to whom the statement was made, and that state of mind, intention or knowledge is a fact in issue or relevant to a fact in issue. See eg Subramaniam v Public Prosecutor [1956] 1 WLR 965

Where the evidence can be treated as ‘original’ evidence and a circumstantial inference other than the truth of the statement can be validly drawn from the statement that is relevant to an issue in the case. See eg: R v Rice [1963] 1 QB 857

Express assertions ‐ verbal, non‐verbal/conduct and written;

Implied assertions

the hearsay rule does not apply to machine generated representations or animal communications: Rook v Maynard (1993) 126 ALR 150