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Lecture

6.1 Exceptions--CL & Inherently Reliable

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Department
Law
Course
JSB171
Professor
All Professors
Semester
Spring

Description
Hearsay Exceptions—Inherently Reliable Evidence  Threshold test of relevance Whether it rationally affects the assessment of the probability of the existence of the main facts in issue: Wakely and Bartley (possession of heroin—evidence that police officer present at raid died of overdose of heroin  relevant to whether accused in possession)  Hearsay—Exclusionary Rule Out of court statements used to prove the truth of their contents are inadmissible hearsay (Walton per Mason CJ; Subramaniuam per Wilberforce LJ) because it is not the best evidence given on oath, and the opportunity to cross-examine is lost: Teper v R  Exception to Hearsay  • Hearsay rule should be flexibly applied | requires common sense and justice | should produce consequences that show that the law is attuned to society (Deane J in Walton) Common Law Inherent Reliability Exception If evidence is inherently reliable, admissible even though would otherwise be hearsay • Discretionary exception—weighing up the competing factors— (Mason CJ in Walton) o Reliability—spontaneity and unlikelihood of concoction ↕ o Dangers—lack of cross examination or any motive for fabrication • Not established exception (although Kelley seems to think it is) o Walton per Wilson, Dawson and Toohey JJ o Deane and McHugh supported inherent reliability exception in Pollitt but only to the extent that the need to admit hearsay evidence only when it appears to have a high degree of reliability. o Pollitt per Brennan J (blurring lines between hearsay & res gestae principle) o Bannon v R per Brennan CJ & McHugh J o Papakosmas v R per Kirby and Gaudron JJ (no exceptions to the hearsay rule have been admitted since the Myers Decision in 1965) o Just because evidence is reliable doesn’t make it an exception to hearsay: Bannon (confession that someone else had made to the crime  inadmissible || also said court would not make any more exceptions to the hearsay rule) Telephone exception: Walton per Mason CJ = identification of other party to the call made in the course of an ordinary social or business call, overheard by third party is admissible: Pollitt; Walton per Deane J • Rationale—Inherent trustworthiness of contemporaneous statements identifying phone callers: Walton per Mason CJ; Pollitt per McHugh J • Timing— o Identification of person during or immediately before or after phone call: Deane J in Walton & Pollitt; also Pollitt per McHugh J (during or immediately before and after || excludes criminal calls) o During or immediately after: Pollitt per Mason CJ o During only: Pollitt per Toohey J • Excludes criminal calls—only ordinary social or business : Pollitt McHugh J (criminals may use codenames) Andrew Trotter LWB432 Evidence • Express & implied assertions identifying person: Walton per Mason CJ (“daddy is on the phone”=express | “hello daddy” =implied  both admissible per Mason J) • Brennan J rejected in Pollitt and Bannon Walton (HCA) (Murder of wife—cashing in on life insurance—meeting her in town at Town centre) 3P overhearing telephone conversation— • Wife arranged to meet the W at the Town Centre • Wife to son, “daddy’s on the phone”  both evidence of mental state=belief that person arranging to meet was W ↔ mere hearsay as to actual identity: Mason CJ Wilson Dawson and Toohey JJ • Son to dad, “Hello daddy”  inadmissible hearsay | but admission could occasion no substantial miscarriage of justice: Wilson Dawson & Toohey JJ  inherently reliable: Mason CJ 3P told by wife— • “I’m going to town to meet W”  can be tendered as evidence of state of mind—inference that actually did go to town can then be drawn from circumstantial evidence = bus ticket etc: Mason CJ Wilson Dawson and Toohey JJ Pollitt (P=hitman, hired by A—killed wrong man—A dies • Y overheard phone conversation between A&P complaining that P killed the wrong man  inadmissible ← hearsay; state of mind not relevant so not evidence of that • after conversation said “that was P”  admissible as spontaneous statements after telephone conversation—as original evidence (Brennan, Dawson and Gaudron JJ) or as an exception the hearsay rule (Mason CJ, Deane J)) • Mason—implied assertions during phone call & express assertion immediately after • Deane & McHugh—Identity before, during & after o BUT McHugh—only in civil jurisdiction—ordinary social or business situations • Toohey—Identity during call • Rejected by Brennan J (blurring lines with res gestae) In Criminal Cases: s93B(2)(b) QEA (not restricted to telephone conversations) Representation admissible if— • representation is— (s93B(2)) o Made when or shortly after the fact happened and unlikely to be fabricated: s93B(2) (a) [→Res Gestae (2) spontaneous statements] o Highly probable to be reliable: s93B(2)(b) o Against interests of the person at the time: s93B(2)(c) [→Admissions & Confessions] • person who made the representation— o had personal knowledge: s
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