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6.0 Hearsay

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Hearsay Admissibility ← Q of Law for the judge 1. Threshold test of relevance—Whether it would rationally affect the assessment of the probability of the existence of one or more of the main facts in issue as a matter of common sense and experience: Wakely and Bartley (possession of heroin—evidence that police officer present at raid died of overdose of heroin  relevant to whether accused in possession) o Matter so related to the issues that you would be able to give it in evidence → may contradict the witness by calling other evidence: AG v Hitchcock o Relates to presence and capacity of a witness to observe events → indirectly relevant: Hadlow o Relating to whether damage a result of acts or pre-existing: Goldsmith v Sandilines (car accident—evidence that plaintiff injured back 4 days previously playing cricket  relevant || plaintiff denied rebuttal evidence concerning street of cricket centre) o If not, merely collateral—eg towards credibility:  Acts prior to evidence given: Hadlow (murder—sheets found in dump with child’s vomit—daughter gave evidence that bought, used at sheep station, & gave to accused —defence led evidence that sheets never at sheep station  evidence goes towards credibility only—does not affect probability of whether gave to parents)  Reason for being in a certain place: Piddington v Bennett (negligent driving— eyewitness saw driving quickly—said was there to bank a cheque (not true)  collateral issue because did not affect presence or ability || Latham J (dissent) may adduce evidence as to why impossible to see event (eg if not present, not capable)) 2. Not a breach of an exclusionary rule o Unless permitted under exception (inclusionary rule). Hearsay—Exclusionary Rule Evidence is inadmissible if— (Walton per Mason CJ; Subramaniuam per Wilberforce LJ) 1. Out of court statement made by someone other than the witness testifying 2. Used for the purpose of establishing the truth of the contents of the statement Rationale for exclusion: Teper v R (write this down—Kelley will give marks for it for sure) • Not the best evidence o should call the person who made the statement • Not delivered on oath • Truthfulness and accuracy of maker cannot be tested • No opportunity to observe demeanour of maker 2. For the Purpose of Directly Proving the Facts Asserted in the Statement Evidence is admissible if it is being used as original evidence for a purpose other than relying on the truth of the statement. Statement is a verbal part of the act Words which accompany some legal act are admissible as part of that act • For example— Andrew Trotter LWB432 Evidence o to prove person got property as a gift—"I want you to have this" not hearsay but treated as part of the act itself. o words forming a contract—words are original evidence that show the contract itself. Andrew Trotter LWB432 Evidence Just to say the statement was made: Chin (cite generally) Making of statement enough to support action • Where the making of the statement is the fact in issue • eg—Defamation—Q whether a defamatory statement was made is in issue Making of statement relevant to a fact in issue Making of a statement is relevant to a fact in issue simply because it was made. • Caller was in an emotional state—relevant to the issue that it was not an accident but an intentional murder || not to prove what caller was saying is true: Ratten v R (murder—husband shot wife, claimed accident—just previously wife made hysterical phone call to operator  fact that there was a phone call relevant to rebutting defence of accident ↔ implication from statements that in danger from husband = hearsay (but res gestae)) o the number rang and the woman connected to that number o she opened the speaker and said “number please” o a female voice answered → opinion evidence o the woman was hysterical and sobbed → opinion evidence o the woman said “get me the police please” • Similar phone numbers in 2 different visa applications: Chin (importation of heroin—Chu & Chin in cooperation to import—Def: claimed they didn’t know each other—evidence they used the same emergency contact no. on visa application forms  merely using to show they knew each other ↔ not that the phone numbers were true → not documentary hearsay || disallowed as rebuttal evidence) State of Mind • Admissible if— o statement goes to the state of mind or the knowledge of the maker or hearer; and o that state of mind is a fact in issue or is relevant to a fact in issue Examples • Threats relevant to show effect on defendant ↔ not to show they would actually be carried out o Duress: Subramaniam (possession of ammunition—defence of duress as captured by terrorists—evidence that terrorists said they would kill him if he didn’t carry the ammo  not admissible to show truth of statements = that they would kill him ↔ admissible to show his state of mind = duress) o Self-defence (statement by dead person): Masters (killed in self-defence—evidence of statements causing apprehension of death or GBH  statements need not be true to support self-defence—relevant so long as he believed them to be true → admissible) th th • Mistake—statements showing state of mind of victim can be relevant: Ratten v R (murder—4 & 5 points: woman hysterical & saying ‘get me the police please’—showed mental state of fear of impending emergency  showed unlikely to be mistake) • Statements which are evidence of intention to do something—whether actually happened can be determined by inference with reference to circumstantial evidence: Walton (murder of de facto wife —GF testified for R but accomplice so had to be corroborated—conversation on phone arranging to meet = evidenceof intention to meet || three statements: o YES—Wife to 3P “I’m going to town to meet W”  evidence of intention to go to town ↔ not of truth that went to town to meet him—supported by circumstantial evidence (bus tickets etc) allowing inference that she actually did go to meet him o NO—Wife to Child “It’s Daddy on the phone”  relying on fact that W was calling → hearsay o MAYBE—Child to W “Hello Daddy”  implied assertion identifying caller → court had varying conclusions → exception for inherently reliable evidence) Andrew Trotter LWB432 Evidence Not if state of mind not relevant to fact in issue • eg—state of mind of person hiring hitman not relevant to whether hitman committed murder: Pollitt (P=hitman, hired by A—killed wrong man—A dies—W overheard phone conversation between A&P complaining that P killed the wrong man  hearsay—state of mind of A not relevant to fact in issue → inadmissible || BUT ‘that was P’ when got off phone  admissible) 1. Out of Court Statements Express assertions = statement intended to assert information Can be— • Verbal—eg saying something exists | is happening: Walton (“daddy is on the phone”  express verbal assertion = hearsay) o Dissent—statements identifying people admissible: Walton per Mason CJ (“daddy is on the phone”=express | “hello daddy” =implied  both admissible per Mason J) • Conduct—eg pointing or indicating something: Chandrasekan (not mentioned) (Q “who hit you?”— victim points to someone  express assertion by conduct) • Written—written assertion of some fact: Myers (HL) (car theft—to prove matching number on engine—evidence of factory records recording number  express written assertion that car bore that number when leaving factory | admitted to prove truth of that statement = dependent on accuracy of record → hearsay || s93 QEA since made business records admissible—reverse effect) o eg—written insurance claim not by the witness o NOT contract, which has its own independent evidentiary value Implied assertions [→inherently reliable exception] = assertions where not intended to necessarily convey information • Prima facie inadmissible nonetheless—implied assertions fall within hearsay rule: Walton per Wilson, Dawson and Toohey JJ (cf. Mason and Deane JJ) • Possible exception—Probably more reliable since if someone is not intending to convey any information then they are unlikely to be trying to mislead: Walton per Mason J (inherently reliable exception) and Deane JJ (admission would not lead to miscarriage of justice) (dissent) o Greetings—probably true that it is that person o Dr putting a body in a mortuary van—probably true that they are dead o Letters of sane nature written in normal course of dealings—probably true that the person is sane Can be— • Oral—eg greetings = assert that a certain person is present: Walton (murder of de facto wife—Child to W “Hello Daddy”  implied assertion identifying caller—no intention to say ‘Dad is on the phone’, just greeting → court had varying conclusions) o Cannot be too far removed: Ratten v The Queen (“get me the police”—seems to imply that something serious is happening which would require the police  res gestae exception) • Conduct—putting body in mortuary van = assert that someone is dead: Re Louck’s Estate (not mentioned) (covered body taken & put in mortuary van—advanced as evidence that the person was dead = truth of implied assertion made by Drs, that it is a corpse  inadmissible) • Written—eg letters with sane content = assert that someone is sane: • Distinction in some cases— o assertion that someone else said something ↔ Andrew Trotter LWB432 Evidence o assertion alleging that what the other person said is true (R v Lee (robbery—statement that L told W that had done the job—PIS by R witness—just to credit, so just that said it not that true || now confined to facts—different position adopted in Beercroft)) • PIS proven through s18 is evidence of facts contained in it, not hearsay: s101 QEA; Simon Beercroft v The Proprietors of Top of the Mark Building Units (husband fell off balcony—wife=R witness declared hostile witness—PIS proven to show he was drunk & fell over railing, did not collapse  intending to assert she was told that—but proven through s18 → evidence of its truth || also admission—exception to hearsay) Andrew Trotter LWB432 Evidence Cases Quotes on Hearsay “Out of court statements tendered for the purpose of directly proving that the facts are as asserted in the statement are prima facie inadmissible”: Walton per Mason CJ. “Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement” Subramaniuam at 970 per Lord Wilberforce (possession of ammunition—defence of duress as captured by terrorists—evidence that terrorists said they would kill him if he didn’t carry the ammo  not admissible to show truth of statements = that they would kill him ↔ BUT admissible to show his state of mind = duress → not hearsay) Teper v R • Evidence here related to the fact that the Crown wanted to get into evidence in a charge of arson against T (arson of own property) a piece of evidence of some third party had said to T at about the time of the arson – met the test of relevance – was a statement implying that T set fire to own house and was running away to escape apprehension for it BUT it was an out of court assertion and the only basis to bring it into court was to rely on the asserted facts mainly that T was running away from his own house which was on fire – the implication of that statement being that he set fire to it himself. • “The rule against the admission of hearsay evidence is fundamental. (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.” o Not the best evidence o Not delivered on oath o Truthfulness and accuracy of maker cannot be tested o No opportunity to observe demeanour of maker o Offends the best evidence rule – should call the person who made the statement Masters • Issue was self defence – state of mind that have an apprehension of death or GBH and a belief that can’t otherwise preserve yourself • Killed the person that came into his room • Wanted to lead evidence that the reason he had killed this person was because he had said things to him that make him think he was capable of extreme violence, and that he could, and would, kill him • Counsel in putting the evidence forward, was not concerned with whether the statements made would make him capable of extreme violence (the truth of the statement), was concerned about the effect that it had on Master’s mind • Provided Master’s believed the statements to be true, the mere fact that they were said is relevant to the issue in the trial –was original evidence as it was something that he perceived through his sense of hearing Andrew Trotter LWB432 Evidence Subramaniam v Public Prosecutor • Subramanian was convicted of being in possession of ammunition contrary to the emergency Regulations of Malaya • At trial he put forward the defence that he had been captured by terrorists and was acting under duress. • He sought to give evidence of what the terrorists said to him, however, the trial judge held this was hearsay and inadmissible. • This was an out of court assertion by the terrorists that is brought into court by Subramaniam. • He wanted to rely on the truth of the assertions that they would kill him if he didn’t carry the weapon – that evidence is inadmissible • BUT – one of the issues in the trial was that Subramaniam was relying on the defence of duress (that if he didn’t carry the weapons they would kill him) • Subramaniam’s state of mind is therefore relevant to the issue of whether he acted under duress. • His evidence about what was asserted to him out of court, whether or not it was true, is relevant to his state of mind. • Subramanian was not relying on the truth of the threats made by the terrorists, only the fact that they said it to him • Trial judge didn’t allow that evidence and the defendant was found guilty. HELD: Privy Council • Appeal allowed – not hearsay • Statements were not being tendered to prove in fact that they did intend to kill him, but being tendered to show that threatening statements were made to him and operated on his mind, in that he was under duress • It was then an issue of credibility whether the statements were made or not (for the jury to decide) • The relevance of the statement was the fact that they were made and the effect on his state of mind – whether the threats were true was not relevant • Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. • It is he
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