16. Hearsay Flashcards
Meaning of hearsay
An assertion other than one made by a witness while testifying in the proceedings is inadmissible as evidence of any fact stated
Cross: an assertion (whether oral or documentary) NOT made by a witness testifying in a proceeding, is inadmissible as evidence of any fact asserted.
Note: Cross’ formulation combines rule against narrative/rule against self-corroboration, and rule against hearsay
Meaning of original evidence
Evidence is considered “original evidence” when a witness narrates another person’s statement for some purpose other than that of inducing the court to accept it as true.
Implied assertions (hearsay)
- Implied from statements not intended to assert a particular fact
“Hello Smith”, or “What, no helmet?” - Asserting that Smith was present, or that someone was not wearing a helmet
–> Implied assertions because individuals were not intending to asset belief that Smith was present, or a helmet was missing
- Implied from conduct not intended to assert a particular fact
Witnesses testifying they saw a doctor (who is not a witness) supervising the placing of a patient in a mortuary van, as evidence of belief in the patient’s death
When will inference of fact from a person’s conduct be precluded by hearsay rule?
i. Where a necessary part of the process of reasoning from conduct to fact is that the person in question knew, or believed, or held the opinion, or formed the conclusion, that the fact was true (unless the knowledge/belief/opinion is itself a fact in issue”
ii. Added that the court must “endeavour to determine whether, considered in relation to the inference in question, the relevant document, utterance or other conduct has the character of an objective event or transaction on the one hand, or of a subjective assertion (involving knowledge, belief, opinion or conclusion) on the other. Only if the second characterisation is more appropriate in relation to the inference in question, will the inference be excluded by operation of the hearsay rule.”
Note: this is how EAC defines hearsay at s 59
–> Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.
Walton v R
“Hello Daddy” case
Mere fact that evidence of a witness includes evidence as to words spoken by another person who is not called is not automatically inadmissible. If the speaking of words is a relevant fact, a witness may give evidence that they were spoken. Hearsay issues only arise when the words are relied upon testimonials (ie, establishing some fact).
In Walton v R - Witness gave evidence deceased said they were going to meet the accused. Another witness gave evidence they were present when the deceased answered the telephone. On the phone, deceased said to their 3 year old “daddy’s on the phone” and son on phone said “hello daddy”. Deceased then resumed call and agreed to meet the caller the next day.
Court found that although the call did not demonstrate the the accused rang the deceased, it was admissible to show the deceased’s intentions and expectations at the time the conversation took place.
Admissible to show that the deceased believed that the person she was arranging to meet was the accused
SUMMARY: it was not evidence that she did meet with him. But WAS evidence of her intend to meet with him and, with other evidence, could be inferred that she did (so amounting to circumstantial evidence against the accused).
However, the evidence of son saying “hello daddy” only had value for its truth, and was therefore inadmissible hearsay.
Out of court statements as original evidence
Out of court statements are “original evidence” where a witness narrates another person’s statement “for some purpose other than that of inducing the court to accept it as true.
- Statements as facts in issue
- Statements as facts relevant to the issue
- Prior statements of a witness (either consistent or inconsistent with current testimony) and which go to credit
Out of court statements as original evidence
- Statements as facts in issue
Question of whether words were spoken or written, not whether they were true or false
For example, defamation or intimidation.
If self-defence is raised as a defence, crucial question may be whether the words were spoke and person believed they would be carried out. Truth of the statements are irrelevant
Can be difficult:
For example: police giving evidence they raided premises and answered the phone to a person who placed a bet. Is this circumstantial evidence from which jury can draw inference as to beliefs held by callers? Or are caller making implied assertions which violate hearsay rule?
Out of court statements as original evidence
- Statements as facts relevant to the issue
Evidence of statements said to someone which explain behaviour may be admissible
IE: Why a person, shortly to be murdered, came outside his house where he was then attacked (someone told him his house was being damaged) ‘
Evidence of telephone operator testifying to receiving a phone call from the deceased and asking for the police in a distressed voice. Not hearsay - evidence of ‘distressed voice’ could be used circumstantially to justify inference caller was in a state of fear at the time it was made. Would be difference if during the call they had asserted that the accused was threatening the deceased with a gun
Memory refreshers in documentary evidence and hearsay
(a) Person observes a car number and requests another to record it. By the time of trial, the person who observed the number can no longer remember it, and the person who recorded it cannot testify without having observed it.
(b) In that case, the Court of Criminal appeal rejected the evidence of the recorder as hearsay, and the observer’s evidence as being irrelevant. NOTE that if the observer had written it down themselves, or seen the recorder and checked its accuracy at the time, then they could have used the note as a refresher in court.
