18. Statutory hearsay exceptions Flashcards
Methods of admissions to dispense with ‘proof’ requirements
Evidence Act Qld - not true hearsay exceptions, just methods of dispensing with requirement for a person called to prove them up
Books of account - ss 84 - 86 [being any document used in the ordinary course of any undertaking to record the financial transactions of the undertaking….in the course of the undertaking
Computer evidence - s 95
Copies of public records - s 44
Requirements for s 92 Evidence Act Qld
Section 92 can operate as an exception to rule against self-corroboration, and prior inconsistent statements only relevant to credit.
In s92(1) word “fact” very broad, can include opinions. For example: question of whether a particular person held a particular opinion at a time, written statements tending to establish the affirmative or negative of the issue would be admissible.
92(1)(b) “undertaking” means any business, profession, occupation, engaged or carried on by the Crown, for profit, or in Qld. Very broad. Included hospital, entries by doctors in diagnostic records in respect of sobriety etc.
Requirements for s 93 Evidence Act Qld
Equivalent to s 92 but for criminal proceedings and maker must be dead or unavailable.
Section 93 relates to TRADE OR BUSINESS which is narrower than “undertaking” in s 92. Commissioner of customers, transport department, immigration department, found NOT to qualify.
Note that s 93(2) defines business to include a public utility, which could include a hospital.
Document must have come into existence as a record or part of a record kept a person acting in the performance of a duty to record contemporaneous facts independent of the issues raised in the proceedings in which the document is tendered.
Hence it does not apply to statements incorporating the complaints of witnesses as to the offence prosecuted.
Requirements for s 93B Evidence Act Qld
Effect that hearsay statements made by a person with personal knowledge of an asserted fact will be admissible where:
a) the proceedings are a ‘prescribed criminal proceeding’ (being a homicide, suicide, unlawful striking causing death, GHB, rape, sexual assault)
b) person with personal knowledge is dead, or mentally or physically incapable of giving evidence;
c) representations made when or shortly after the asserted fact happened and in circumstances making it unlikely the representation is a fabrication, or in circumstances making it highly probable it is reliable, or at the time it was made it was against the interests of the person.
Once in - has effect of being permissible as hearsay exception.
Note mandatory warning regarding use of hearsay evidence under s 93B if there is a jury - per s 93C
Effect of s 101 Evidence Act Qld
S 101: where a previous inconsistent statement of a witness is proved by virtue of ss 17, 18, 19 or s 94(1), or a previous consistent statement is proved for the purpose of rebutting a suggestion that the witness’s evidence is fabricated the statement should be admissible as evidence of any fact stated in it of which direct oral evidence by the witness would be admissible.
This overcomes the difficulty of directing a jury that the statement is admissible as going to credibility but not as evidence of the truth of the facts asserted. Previous consistent and inconsistent statements also admissible as evidence of the truth of the matters asserted if they satisfy the conditions of the Australian equivalents to the Evidence Act 1938 (Eng) or any other statutory exception to the hearsay rule.
Evidence Act Cth Exceptions
Section 59 - Rule against hearsay
Section 60 Evidence relevant for a non-hearsay purpose
(Significant change in general law where evidence commonly only admitted for one purpose but not another. S 60 reverses it - now made potentially admissible for truth of contents if admitted subject to requirement it is first hand hearsay per s 62)
ss 63 and 64 - civil statements
ss 65 and 65 - criminal statements
s 69 - Business records
Renders admission a previous representation made in a document which forms part of the records belonging to or kept by a person, body, organisation, in the course of or for the purposes of a business. Not necessary for original supplier to be identified or identity known.
Includes emails, invoices, file copy of documents
s 75 - Interlocutory proceedings
Admissions under the Cth Evidence Act
Sections 81 - 90
81 - Hearsay exception
82 - Exclusion if not first-hand hearsay
83 - Exclusion of evidence of admissions against third parties
84 - Exclusion of admissions influenced by violence
85 - Where reliable admissions admissible
87 - Agency admissions [admissions made with authority - broader than common law]
88 - Proof of admissions
90 - Discretion to exclude if unfair to admission against accused
