17. Common law hearsay exceptions Flashcards
Res gestae
Utterances effectively ‘part of the story’ or ‘part and parcel of a central event’ may be admitted on the basis their spontaneity enhances their credibility. Historically, have needed to be closely contemporaneous with the event in issue. Focus now is more on spontaneity.
Note s 93B EAQ: allows testimonial use of a third party statement against interest, or one made shortly after the event, or in circumstances that make it highly probable the representation was reliable.
Interlocutory proceedings
Hearsay is admissible so long as the source is identified.
See also s 129A(3) which allows ad hoc exceptions where proceedings are not interlocutory, and where the issues relate to a narrow range of matters in civil proceedings where the facts are not seriously in dispute, or where proof would cause unnecessary or unreasonable delay.
Informal admissions
An informal admission (i.e. not one made to a person in authority) by words or conduct by a party, or those in privity with the party, is admissible evidence against the party of the truth of its content
CONDITIONS FOR ADMISSIBILITY
(a) Any statement, express or implied, oral or written, which is adverse to a party’s case. Only controversial questions effecting admissibility is whether the party had personal knowledge of the facts stated. Cases in which the statement do not emanate from the party give rise to problems.
(b) When an admission is read, everything ought to be read which is fairly connected (inculpatory, exculpatory, or both). Consequence is self-serving statements may be rendered admissible by the opponent’s conduct of the case, leading to exception to hearsay rule. Wholly exculpatory statements may be inadmissible hearsay however.
(c) Personal knowledge - must be some evidence of belief in, or acceptance of, the fact admitted.
Evidence which suggests a consciousness of guilt is admissible as an implied admission against interest
However care must be taken admitting evidence of lies: must be shown that the lie was deliberate, and relate to the material issue in the case. Must be established that the lie was told for fear of being found guilty if the truth had been told, or because an account consistent with innocence of the crime charged could not be given.
Vicarious admissions / agency admissions
Statements made by an agent to a party, made within an agent’s authority and during the period of the agency, may be received as admissions against the principal in litigation to which the latter is a party.
Note: (a) Section 129A EAQ provides that in civil proceedings where the fact in issue is the proof of authority, the court may order that evidence be given in any way the court directs including statement on oath, information and belief, production of documents, etc
(b) Examples: employer and employee and partners. Admission must be within scope of the agent’s authority: It has been held in Queensland, in a case involving a charge (against a company) of using a vehicle without the requisite permit, and where the driver of a vehicle owned by the defendant was required by statute to answer questions, that the answers were admissible against the defendant employer.
(c) Legal representatives – admissions by advocates addressing the court are admissible; prima facie within their ostensible and likely actual authority to make them
Evidence of co-accused and conspirators (general rule)
General rule: out-of-court admission of one co-defendant, co-plaintiff, or co-accused is not admissible evidence against the other by virtue of the mere fact they are joint parties.
Out of court statements made by a co-accused in the absence of an accused may be admissible in one of three ways [noting that a statement in their presence may amount to an admission by conduct]
- As circumstantial evidence which, along with other evidence, is relevant to the Crown or defence case
- As original evidence to support an aspect of the prosecution case that the accused entered into an agreement with others to do the unlawful act with which they are charged.
- As exception to hearsay rule, as evidence of truth of the statements made in the absence of the accused, where conspiracy is alleged or where parties ‘acting in concert’
When will co-conspiracy statements made in absence of accused be admissible for truth as exception to hearsay?
Anything said or done by one conspirator in pursuit of a common object may be treated as having been done or said on behalf of another. Underlying principle of agency, closest analogy being a partnership (partners in crime).
R v Ahern
Where an accused is charged with conspiracy, evidence in the form of acts done or words uttered outside his presence by a person alleged to be a co-conspirator will only be admissible to prove the participation of the accused in the conspiracy where it is established that there was
- a combination of the type alleged (evidence of the initial meeting of the minds / agreement)
- that the acts were done or the words uttered by a participant in furtherance of its common purpose and
- there is reasonable evidence, apart from the acts or words, that the accused was also a participant (could be them all being arrested).
Standard of proof for reception of hearsay evidence in a conspiracy is that there is REASONABLE EVIDENCE independent of the utterances that supports a conspiracy, and the accused’s membership in it.
Note that even if there is evidence, it may be excluded (Christie) if the application of the co-conspirator rule would operate unfairly against a particular accused.
The words “reasonable evidence” have provided a standard which has been applied without difficulty in this country for some years, at least in cases where preconcert has been the basis upon which evidence has been led in cases other than conspiracy, and there is no reason to suppose that if it has provided an appropriate test in those cases, it will not do so where conspiracy is charged.
NOTE –> not sufficient that an accused joined the conspiracy later. For hearsay evidence to be used, the independent evidence showing a link must have existed AT THE TIME the utterance sought to be used against them was made
Exceptions to the admission of confessions as hearsay exception (list)
Subject to two strict rules and three discretions
1st Rule: Inducement rule of voluntariness
2nd Rule: Basal involuntariness
1st Discretion: Exclusion of evidence obtained in an improper manner
2nd Discretion: Exclusion if, in all the circumstances, it would be unfair to use a confession against the accused
3rd Discretion: Exclusion where prejudicial effect exceeds its probative value.
Admission of confessions as hearsay exception
- Inducement and voluntariness
Confession is only admissible against party making it if it was voluntary. Voluntary does not mean VOLUNTEERED: means “made in the exercise of a free choice to speak or be silent”. Not in consequence to an inducement of a person in authority, or by oppression.
Admission or confession by accused not voluntary if it is preceded by an inducement, such as a threat or promise, held out by a person in authority.
A confessional statement will be excluded from evidence as involuntary if it has been obtained from an accused either by fear of prejudice or hope or advantage, exercised or held out by a person in authority.
s10 Criminal Law Amendment Act - a confession following a threat or promise by person in authority is DEEMED to have been induced unless contrary intention is shown.
TEST is whether accused exercised a free choice. Was their will overborne. Focus is on effect of the police officers’ conduct.
EXAMPLES OF INDUCEMENTS
Threats of violence
Tell me where the things are and I will be favourable to you
It would be better for you if XYZ
Moral statements okay: “Be sure to tell the truth” or “Don’t run your soul into more sin, but tell the truth” = innocuous.
PERSON IN AUTHORITY
Means any person whom the prisoner might reasonably suppose is capable of influencing the course of the prosecution (police, prosecution, judge etc). Just being a possible witness is insufficient: must have the power to “place in motion the wheels leading to a prosecution”
Admission of confessions as hearsay exception
- Basal involuntariness
Basal involuntariness: where a confession is obtained when the accused’s mind was ‘so unbalanced as to render it wholly unsafe to act upon it’.
Overlaps with oppressiveness (unreasonably long questioning, physical violence etc)
May go to a discretionary rejection if not sufficient to be basal involuntariness.
Mere intellectual illness or ‘disease of the mind’ does not mean they are incapable of telling the truth. Usually a finding of involuntariness depends BOTH on the accused’s mental state, and some external pressure to the accused.
An accused wrongly thinking they are obliged to answer questions, through no fault of the interrogating officer but with no steps taken to correct the witness, may go to a discretionary exclusion but would not be basal involuntariness.
NOTE - an involuntary confession cannot be admitted on some other basis (like res gestae)
Admission of confessions as hearsay exception - THREE DISCRETIONS and examples of general matters taken into account
Often overlap between 3 discretionary.
1st Discretion: Exclusion of evidence obtained in an improper manner
2nd Discretion: Exclusion if, in all the circumstances, it would be unfair to use a confession against the accused [even if voluntary]
3rd Discretion: Exclusion where prejudicial effect exceeds its probative value.
Matters generally relevant to the first two discretions include:
- Is the impropriety likely to have produced a confession that was untrue?
- Was a trick employed by the police?
- Was a misrepresentation - short of an inducement - made?
- If there was an innocent misrepresentation made to the accused, is it likely to have elicited an untrue admission?
- Was the accused in a weakened physical or mental state?
- A failure to disclose the purpose of questioning until late in the piece might also be relevant.
- Was the questioning of the police in the manner of a full blown cross-examination?
- Was a reasonable request for an interpreter rejected?
- Was the accused prevented from accessing their lawyer?
- Did questioning continue after the accused sought to exercise their right to silence?
- Does the accused suffered any special disadvantage (are they migrants, or an indigenous person who lives remotely)?
- Is the offence a minor one?
Confessions in unsigned records of interview only admissible to the extent the accused adopts it.
Where illegally obtained (Bunning v Cross) focus is on public policy
Tofilau v The Queen example
Example of admissibility of inducement and voluntariness
“Scenario evidence” where confessional evidence obtained from undercover police officers posing as members of a criminal gang and encouraging person to make confessions.
Advantages included “opportunity of material gain by joining the gang” and/or “certainty that the head of the gang can influence supposedly corrupt police officers to procure immunity from prosecution for the serious crime”.
Found that that WAS NOT an improper inducement: individuals would not think the police officer is a person of authority, they lack reasonable grounds for thinking they had lawful authority to investigate the offence.
Only reasonable belief that the applicant had was that they were gangsters, not authorised police officers, and therefore nothing said could act as an indecent by a person in authority rendering the confessional material inadmissible.
Admission of confessions - statutory provisions regarding police standards
Police Powers & Responsibilities Act
The questioning of a “relevant person” must, if practicable, be electronically recorded.
Relevant person means a person in the company of a police officer for the purpose of being questioned as a suspect about their involvement in the commission of an indictable offence
Limited circumstances where discretion will permit admission of evidence despite it not being recorded (ie, where it is impractical, such as where police arrive at a houser and murderer confesses immediately).
