Class Notes (839,081)
Australia (1,845)
Law (441)
JSB171 (400)
All (349)
Lecture

Hearsa

19 Pages
86 Views

Department
Law
Course Code
JSB171
Professor
All

This preview shows pages 1,2,3,4. Sign up to view the full 19 pages of the document.
Description
Nick Dowse Hearsay Hearsay – Structure of Answer 1. Before considering hearsay, need to ask “is the piece of evidence relevant?” a. All evidence sufficiently relevant to a main/collateral fact in issue is prima facie admissible. b. All evidence that is not sufficiently relevant is not admissible, even without considering hearsay. c. A piece of evidence is relevant when: i. Any two facts are so related to each other that, according to the course of human experience, one fact indicates the likelihood of the existence of the other fact d. A fact is relevant if it can be linked to a main fact in issue or a collateral fact in issue. e. Relevance is a question of law for the judge. 2. State the issue in question form: a. “Is the [slogan that “Smalley is Small”] in [a catalogue] documentary hearsay evidence?” b. “Is [deceased’s] statement to [killer] about going to [place] at [time] and overheard by [witness] amount to hearsay?” 3. Write: “Hearsay has received various formulations in both case law and academic texts. In Cross on Evidence, hearsay was defined as “an out-of-court assertion, other than one by the person giving evidence, which is inadmissible as evidence of any fact in the assertion.” In Subramaniam De Silva L @ 970 said that statements are hearsay “when the object of the evidence is to establish the truth of what is contained in the statement.”” 4. Write: “The rationale for the existence of the hearsay rule was stated in Teper by Lord Normand @ 486 to be because: a. Not the best evidence; b. Not delivered under oath; c. Truthfulness and accuracy cannot be tested in cross-examination; and i. (because speaker is not a witness) d. Light which speaker’s demeanour would throw on the testimony is lost.” 5. If dealing with written hearsay, give a quick definition of “document” a. “Here, the evidence is in documentary form. The definition of ‘document’ in the QEA is very wide and would fall within para (?) of the definition in Sch 3.” b. Document includes: i. A document in writing ii. Any part of a document (a) iii. Book, map, plan, graph, drawing (b) iv. Photograph (c) v. Label, marking, any writing that identifies or describes something (d) vi. Disc, tape, sound track, any sound recording (e) 1. Note: also real evidence (Butera). Must prove provenance of tape to show it has not been tampered with or enhanced. vii. Film, negative, tape, any video recording (f) 1. Note: also real evidence (Sitek). Must prove provenance of tape to show it has not been tampered with or enhanced. viii. Catchall: any record of information whatever (g). c. See “Documentary and Real Evidence” notes for fuller info. 6. Because evidence will only be excluded as hearsay when admitted to show the truth of the statement, it is important to look at the purpose of the evidence’s admission. a. If trying to rely on statement to show truth of what was said in it, will be hearsay and inadmissible (Subramaniam) b. If the statement is relied on for some other purpose than proving the truth of the statement, it will be admissible as original evidence, not hearsay evidence (Subramanium). c. Possible Purposes for Admission i. Proving person’s state of mind (acting under duress, going to kill him unless he did what he was told) = OK, goes to state of mind, not truth of what was said = original Page 1 of 19 Nick Dowse Hearsay evidence not hearsay (Subramaniam). ii. Drawing inferences as to the person’s intention (said was going to meet someone at some place, coupled with circumstantial evidence that corroborates the intention) = OK, goes to intention, not truth of what was stated = original evidence, not hearsay (Walton) 1. Statements showed that the deceased ex-wife had the intention to meet the killer, and from there it could be inferred that the deceased did in fact go to meet the killer. 2. Also, a bus ticket was found in the deceased’s pocket, indicating she did in fact travel to the town centre, and the bus driver was able to give evidence of the bus’s estimated arrival time – all of which corroborated the inference as to the deceased’s intention 3. But if tried to admit statements to show that she did in fact meet the killer, this would be hearsay (as it uses the statements to show their truth, which is not permissible). iii. Cylinder block numbers on car engines = not OK, evidence is to prove that the car’s engine matches the CBN from stolen car, therefore hearsay (Myers v DPP). iv. Accused and third party put same false information on application form = used only to show that the two parties conspired together, not that the information on the form is true = therefore, OK, not hearsay, is original evidence (Chin). v. Showing the nature of emotion, anxiety or fear at an existing or impending emergency = OK because statement relevant and necessary to explain why phone call was made = original evidence, not hearsay (Ratten) vi. Where the fact of making the assertion is the fact in issue = ie where admitting statement to show that it was made, rather than that it is necessarily true = original evidence, not hearsay. 1. For example, in order to succeed in an action for defamation, it must be proven that a defamatory statement was published. The truth of the defamatory statement does not need to be proven, but we need to prove that the statement was actually made (publication of defamatory statement). In a defamation case, the statement will be original evidence, not hearsay and will be admissible. vii. Statements which form a verbal portion of an act, accompanying and explaining that act = not hearsay 1. If the issue in dispute is how someone obtained an item of property, a party could rely on a statement by the giver of property saying “I want you to have this” – this is not hearsay, but treated as part of the act itself 2. Words forming of a contract – those words are original evidence that show the contract itself viii. Where the fact of making the assertion, whether it be true or not, is relevant to a fact in issue = not hearsay (Subramaniam) 1. Example: statement of “get me the police please” over the phone not hearsay because not used to prove victim was being attacked, but instead used to reveal emotions etc (Subramaniam) 2. Example: Accused and third party put same false information on application form = used only to show that the two parties conspired together, not that the information on the form is true = therefore, OK, not hearsay, is original evidence (Chin). 7. What is the scope of the hearsay rule? a. It applies to: i. Out-of-court assertions ii. Express assertions 1. Here, the statement [“Michael, daddy’s on the phone” (Walton) / “That was Page 2 of 19 Nick Dowse Hearsay Pollitt on the phone, he buggered up the job, he wants to be paid for something he hasn’t done…” (Pollitt)] is an express assertion of the identity of the person on the phone like in Walton/Pollitt. iii. Implied assertions (assertions not intended to be asserted) 1. Here, the statement [“Hello Daddy” when boy came to phone: Walton / “Hi Bella”] is an implied assertion of the identity of the other caller because it is implied from the statement and not deliberately intended by author: Walton. 2. These are assertions where it was not intended to necessarily convey information (e.g. greetings assert identity but the purpose is not to say who it is). 3. An implied assertion is one which can be inferred or implied from a statement or from conduct and will generally not be deliberately intended by the author (Walton – ‘hello daddy’) iv. Statements in oral, written or conduct form 1. oral – “Daddy is on the phone” in Walton is an express verbal assertion 2. written – insurance claim in written form not drafted by the witness 3. conduct – in answer to a question “who hit you?” the victim points to someone a. An example of hearsay through conduct could be if a person does not use a staircase because it is faulty, and a different person injures themselves on that staircase – the conduct of the first person could show that the staircase was faulty. b. Another example of hearsay through conduct could be if a covered body was put into a mortuary van that was parked outside someone’s house and a body was carried into the van – through the conduct of the mortuary, neighbours would think that the covered body is dead 8. Decide whether the piece of evidence is hearsay or original evidence. a. Just because you decide something is hearsay doesn’t automatically mean it won’t go into evidence, because it might come within an exception. b. If you decide something is original evidence, there is no need to consider an exception, as it is able to be admitted into evidence anyway! 9. Exceptions to the Hearsay Rule a. Inherently Reliable Evidence Exception (Telephone Exception) i. Consider this exception every time there’s mention of a telephone call. ii. A CL exception applies where there is a contemporaneous statement made by a party to a telephone conversation (either during, before or after the call) where they disclose the identity of the other party (Walton per Deane J @ [4]). iii. Rationale: 1. Extreme unlikelihood of concoction (Walton per Mason CJ @ [23]-[25]); and 2. Spontaneous/contemporaneous identification has high degree of reliability (Pollitt per Mason CJ @ [12]). iv. Implied assertions of identity of caller admissible because spontaneous + high degree of reliability (Pollitt per Mason CJ @ [12]). v. Express assertion of identity also admissible because likely to have a high degree of spontaneity, be free from concoction, therefore has high degree of reliability (Pollitt per Mason CJ @ [14]). vi. When made by a child (“hello daddy”) there is an extreme unlikelihood favouring admission (Walton per Mason CJ @ [23]-[25]). vii. According to Deane J in Walton (@ [4]), the hearsay rule: 1. Should be flexibly applied; 2. In accordance with common sense and justice; and 3. Should produce consequences that show the law is attuned to society. viii. NOTE: This exception is restricted to identification evidence (ie “Hi Bella”), and the Page 3 of 19 Nick Dowse Hearsay real benefit of [deceased’s] statement on the phone lies in coupling the identification evidence with the information about [meeting at the Yummy Club at 7pm] (because [deceased’s] body is found next to the [Yummy Club later that evening]). ix. Exception should be confined to categories of ordinary social and business conversation where there is no real ground for concluding the identification was fabricated or fictitious (Pollitt per McHugh J @ [23]). x. The scope of the common law inherently reliable evidence/telephone exception is uncertain and a complex area of the law of evidence. 1. Walton was confirmed in Kamleh. 2. McHugh J in Pollitt suggested that inherently reliable exception should only be available in civil cases, people tend to conceal their identity, use fake names etc in criminal cases (only ordinary social and business calls). xi. Also talk about the statutory exception in s 93B QEA (below)! 1. Look at s 93B(2)(a) and (b) QEA, which is a clearer statutory reformulation of the inherently reliable exception. Note that it only applies to certain offences, but is not restricted to identification evidence. b. Res Gestae i. Doctrine of res gestae concerns the admissibility of evidence because of its overwhelming relevance and reliability. ii. Literally means “the transaction” iii. Enables evidence to be received even though it infringes one of the exclusionary rules, like hearsay. iv. There are four main heads of res gestae: 1. Incidents or events regarded as part of the transaction in issue 2. Spontaneous statements made by participants in or observers of the event in issue 3. Statements made by a person as to their contemporaneous physical sensations or general state of health 4. Statements made by a person as to their state of emotion or belief v. Incidents/Events Part of Transaction in Issue 1. Isn’t so much an exception to hearsay as it is an exception to otherwise inadmissible evidence. For example, evidence that tends to show bad character. 2. In O’Leary, the accused’s heavy drinking, violence and hostility explained his mind and attitude which was relevant to whether he was capable of forming the intent to murder, so the lead up evidence was admissible. a. Without the evidence of drinking, the murder was an unintelligible event. b. Intent to cause death or GBH is an element to murder, so it was very important to be able to show whether or not he was capable of having that intent. vi. Spontaneous Statements by Participants/Observers of Event 1. Case examples: a. Bedingfield: Throat cut in one room, walked out of room and said ‘Oh dear, Aunt, see what B has done to me’ – mere narrative of what already happened. Held: inadmissible. b. Ratten: Statement of wife “get me the police please” and fatal shooting closely associated in time and place. Statement and tone of voice showed forced from wife by overwhelming pressure of contemporaneous event. Spontaneity endorsed by time sequence and R’s proximity to wife with his gun. Held: admissible. c. Andrews: Man attacked by A with knife, few moments after attack while bleeding heavily from serious stomach wound, staggered to unit Page 4 of 19 Nick Dowse Hearsay in same house and able to identify A by name as one of his assailants. Held: admissible (spontaneous and contemporaneous) d. Adelaide Chemical and Fertiliser: C at truck, moving jar of sulphuric acid, broke and spilt on legs. 1-2 minutes later, inside the building, made statement explaining what happened and that jar faulty/cracked. Held: inadmissible – mere narrative (did not meet strict contemporaneity because transaction complete when the jar broke and acid spilt over legs). i. In more recent cases it has been acknowledged that the important factor is not strict contemporaneity but the fact that it was inspired or provoked by the event (Walton, Pollitt and Benz). e. Vocisano: Two brothers driving & crashed. Husband and wife came to accident scene minutes after accident. Not so seriously injured brother told H&W that seriously injured brother was driver. Spontaneous (unlikely to be concocted) not contemporaneous – need both. Held: inadmissible – historical account not part of transaction. f. Morrison: F on phone to L when L told F that M arrived and had knife. F heard murder over phone. L had phone in hand when body found. Held – admissible (M’s presence in unit AND motive (L called M ‘Blocky’ short for blockhead). g. Warren v Coombes: F heard engine revving, car roaring up road, screech of brakes, bang. F said to daughter before crash driver going too fast. After bang, F saw motorcycle and man up in the tree. Held: admissible (contemporaneous + spontaneous). h. Walton: Follows/confirms Vocisano (per Wilson, Dawson and Toohey JJ @ [25]). i. Pollitt: can have approximate, if not exact, contemporaneity. 2. In the leading case of Vocisano, Barwick CJ made it clear that both spontaneity and contemporaneity are required for this head. a. Check for spontaneity: is the statement likely to be free of concoction, and made without thought or reflection? i. Eg: made while on fire/burning etc, made while helicopter plummeting from the sky = not likely to be making it up. ii. Must have both spontaneity and contemporaneity (Vocisano). b. Check the timing of the statement: was it at the same time as the event happened, or was it more than a few minutes later? i. The requirement for contemporaneity is clear from the cases (Ratten, Walton). ii. The earlier the better, more chance of it coming within this head of res gestae. iii. Can have approximate, if not exact, contemporaneity (Pollitt) vii. Statements About Physical Sensations/General State of Health 1. Where there are statements of health at the relevant time or soon after, relating to bodily feelings and symptoms, health, sensations, intention, knowledge or state of mind these are admissible under this third head of res gestae, because they are spontaneous and natural expressions of suffering, forming part of the res (Ramsay v Watson). 2. Eg: where plaintiff alleges lead poisoning over 35 years, medical officer as witness for defendant asked on 21 other people’s health from same office = hearsay, doesn’t come within this exception, must call each person (Ramsay v Watson) 3. This head only applies where it was the best or only evidence available. If a Page 5 of 19 Nick Dowse Hearsay man's bodily feelings at a particular time were relevant, but he could not be called as a witness, or was not a competent witness, what he had said at that time might be the only means of proving the fact. In most, if not all, of the cases in which this question has arisen the declarant was dead before the trial (Ramsay v Watson @ [6]). 4. Mr. Cross has said in his work on Evidence (1958) p. 387 of this topic: "Whatever may be its true nature, the evidence is received because it is frequently all that can possibly be available". viii. Statement About Emotion or Belief 1. There is no case law relating to this particular test, and there is no provision in the QEA. 2. However, contemporaneous representations about the maker’s health, feelings, sensations, intention, knowledge or state of mind are exceptions to the hearsay rule under the CEA (s 72 CEA). c. Statutory Exceptions to Hearsay i. Part 6 of the QEA contains various provisions that amend and extend the circumstances which hearsay evidence will be received into evidence in Queensland (Field @ [10.1]). ii. If dealing with documentary evidence… (not oral evidence) 1. The QEA provides for the potential admissibility of otherwise documentary hearsay evidence in both civil and criminal proceedings. Different sections deal with each 2. FOR A CIVIL TRIAL (Documentary Hearsay)… a. WARNING: Applies to civil cases only!!! b. Documentary hearsay evidence in a civil trial may be admissible under s 92 QEA where: i. There is a statement; and 1. Defined in Schedule 3 to include: “any representation of fact, whether made in words or otherwise and whether made by a person, computer or otherwise.” ii. In a “document”; and 1. The definition of ‘document’ in the QEA is very wide and would fall within para (?) of the definition in Sch 3. 2. Document includes: (Sch 3 QEA) a. A document in writing b. Any part of a document (a) c. Book, map, plan, graph, drawing (b) d. Photograph (c) e. Label, marking, any writing that identifies or describes something (d) f. Disc, tape, sound track, any sound recording (e) i. Note: also real evidence (Butera). g. Film, negative, tape, any video recording (f) i. Note: also real evidence (Sitek). h. Catchall: any record of information whatever (g). iii. Oral evidence of the fact would be admissible; and 1. If [document maker] was around to provide evidence about [facts] this would be admissible because it is relevant to [fact in issue]. iv. Maker of statement has personal knowledge and is called as a witness (s 92(1)(a)); OR 1. A statement is made in a document if it is: s 92(4)(?) QEA Page 6 of 19 Nick Dowse Hearsay a. (a) Written, made, dictated or produced; b. (b) Recorded with the person’s knowledge; c. (c) Recorded in the course of and ancillary to a proceeding; or d. (d) Recognised as the person’s statement by their signature or initialling 2. Therefore, here the maker was [person] as they [apply (a), (b), (c) or (d)]. [Person] did/did not have personal knowledge. 3. IF original document maker and letter/reproduction of document are different a. Here, using [typed up letter] not [document eg. notes] therefore person who made it is person who typed it up (different person to [employee]) therefore [typist] has no personal knowledge of [document]. 4. Look out for situation where there are notes made by employee/person with personal knowledge but they are now in a typed report containing details from those notes – work out which is being relied upon. 5. The maker of the statement must be called as a witness. a. If they are called and the above is satisfied, the document will be admissible under s 92(1)(a) QEA. b. NOTE: exception for calling witness below. v. Record made in course of “undertaking” and source has personal knowledge and is called as a witness (s 92(1)(b)). 1. Undertaking is defined in Sch 3 QEA very widely to include: a. Public administration; b. Any business  most likely c. Profession; d. Occupation; e. Calling; f. Trade g. Undertaking h. Whether or not engaged in: i. By the Crown or statutory body; ii. For profit or not; iii. In QLD or any other place. 2. Source of the record must have personal knowledge, or be reasonably supposed to have had personal knowledge, of what’s in the record (s 92(1)(b)). 3. The person who supplied the information in the record must be called as a witness a. If above satisfied, evidence admissible under s 92(1)(b) QEA. b. NOTE: Exception for calling witness below. vi. EXCEPTION FOR CALLING WITNESS: 1. There is no need to call the witness as required under s 92(1)(a) or (b) where: a. Maker/supplier is dead or unfit due to bodily or Page 7 of 19 Nick Dowse Hearsay mental condition (s 92(2)(a)); or b. Maker/supplier is out of the state and not reasonably practicable to secure their attendance (s 92(2)(b)); or c. Maker/supplier cannot, with reasonable diligence, be found or identified (s 92(2)(c)); or d. It can not reasonably be supposed (having regard to the time which has elapsed since the maker or supplier made the statement, or supplied the information, and to all the circumstances) that the maker or supplier would have any recollection of the matters dealt with by the statement the maker made or in the information the supplier supplied (s 92(2)(d); or i. this provision is particularly relevant for doctors, police, person with many clients etc. e. no party to the proceeding (who would have the right to cross-examine the maker or supplier) requires the maker or supplier being called as a witness (s 92(2)(e)); or f. at any stage of the proceeding it appears to the court that, having regard to all the circumstances of the case, undue delay or expense would be caused by calling the maker or supplier as a witness (s 92(2)(f)). 2. If you can make out any of the above, the evidence will still be admissible under s 92(1) even though the maker/supplier is not called as a witness (s 92(2)). 3. FOR A CRIMINAL TRIAL (Documentary Hearsay)… a. WARNING: applies to criminal cases only!!! b. Documentary hearsay evidence in a criminal trial may be admissible under s 93 QEA where: i. There is a statement; and 1. Defined in Schedule 3 to include: “any representation of fact, whether made in words or otherwise and whether made by a person, computer or otherwise.” ii. In a “document”; and 1. The definition of ‘document’ in the QEA is very wide and would fall within para (?) of the definition in Sch 3. 2. Document includes: (Sch 3 QEA) a. A document in writing b. Any part of a document (a) c. Book, map, plan, graph, drawing (b) d. Photograph (c) e. Label, marking, any writing that identifies or describes something (d) f. Disc, tape, sound track, any sound recording (e) i. Note: also real evidence (Butera). g. Fi
More Less
Unlock Document

Only pages 1,2,3,4 are available for preview. Some parts have been intentionally blurred.

Unlock Document
You're Reading a Preview

Unlock to view full version

Unlock Document

Log In


OR

Join OneClass

Access over 10 million pages of study
documents for 1.3 million courses.

Sign up

Join to view


OR

By registering, I agree to the Terms and Privacy Policies
Already have an account?
Just a few more details

So we can recommend you notes for your school.

Reset Password

Please enter below the email address you registered with and we will send you a link to reset your password.

Add your courses

Get notes from the top students in your class.


Submit