Chapter 16-18: Rule against hearsay, common all exceptions, and statutory exceptions (Chp 16-18)

Question 1

What is the rule against hearsay? (what section of EAC)

Answer 1

s 59 EAC - Evidence of a previous representation made by a a person is not admissible to prove truth of the facts asserted.

Question 2

What is the rationale for the hearsay rule? (Theory)

Answer 2

The basic rationale of the rule rest on the right to cross examine. Cross examination is the main method by which the witness’s capacity to observe, recollect and narrate, and the witnesses honesty/credit can be tested.

If a witness simply explains what someone else told them the court can only assess the witnesses the accuracy and honesty of what they were told by another person. The other person’s observations can not be subject to scrutiny. Further, the other persons statements are made outside of court and not under oath. Further, contravenes the best evidence rule.

Question 3

What sections under the EAC contain the exceptions to hearsay?

Answer 3

s60-75 (hearsay rule, first hand hearsay, and other exceptions to hearsay).

Question 4

What are the CTH statutory exceptions to hearsay?

Answer 4

1. ## evidence relevant for a non - hearsay purpose (section 60);
2. first - hand hearsay:
   a. - civil proceedings, if the maker of the representation is unavailable (section 63) or available (section 64);
   b. - criminal proceedings, if the maker of the representation is unavailable (section 65) or available (section 66);
3. contemporaneous statements about a person’s health etc. (section 66A);
4. business records (section 69);
5. tags and labels (section 70);
6. electronic communications (section 71);
7. Aboriginal and Torres Strait Islander traditional laws and customs (section 72);
8. marriage, family history or family relationships (section 73);
9. public or general rights (section 74);
10. ## use of evidence in interlocutory proceedings (section 75);
11. admissions (section 81);
12. representations about employment or authority (subsection 87(2));
13. exceptions to the rule excluding evidence of judgments and convictions (subsection 92(3));
14. character of and expert opinion about accused persons (sections 110 and 111).

Question 5

What is an implied assertion of fact? (provide examples)

Answer 5

s59(2A) Statements (and conduct) of a person other than a witness, which were NOT INTENDEND TO BE ASSERTIVE of the fact they were tendered to prove, are still inadmissible hearsay.

Conduct - A witness giving evidence that another person pointed at a person in a police line up lead for the purpose of establishing that was the accused.

Words -

N.B. A child saying “hello daddy” to a person on a phone would not be hearsay under s59(2A) because it would be unlikely the child intended to assert the ID of the person on the phone however at common law it would be inadmissible.

Question 6

Are implied assertions excluded by the hearsay rule? EAC

Answer 6

s59(2A) implied assertions of facts is hearsay where it can be reasonably supposed the person intended to assert a particular fact…

Question 7

Why is s 60 of the EAC significant and how can it be limited because….and it can be limited by…. [Finish]

Answer 7

Section 60 EAC has effected significant change.

At common law evidence of statements made by a person COULD be admitted to prove that they were made but NOT to prove that they were true (i.e. inconsistent statement was made).

Section 60 reverses this approach (expect it does not apply to admissions in criminal proceedings (s60(3)). Prior consistent and inconsistent statements, and the factual basis of an experts opinion (what a patient tells a doctor is not only admissible as the factual basis of the doctors expert opinion but also admissible as the truth of what the patient said) is now admissible to not only prove the statements were made BUT also as the truth of what was said.

Section 60 also does not require the person who made the presentation to have personal knowledge of the asserted facts.

The court can control evidence admitted under s 60 by making orders pursuant to s136 limiting the use of evidence which may be prejudicial, misleading, or confusing.

Question 8

Are second hand hearsay expert statements admissible for the truth of contents? If so, what section? EAC

Answer 8

s 60 EAC - The application of s60(1) in civil cases goes beyond first hand hearsay, subject to s135-136, an expert opinion which makes statements of second hand hearsay or even more remote hearsay is admissible to prove the content of what was said.

Examples: Knowledge derived by expert from writings of other experts, reports of work by other experts, discussions with other experts and from accounts of factual material relied on in particular industries, trades or callings.

Question 9

Can second hand hearsay be admissible? (i.e A tells B something. B tells C something. C gives evidence of this conversation).

Answer 9

s 60 EAC - Yes if relevant for non hearsay purpose

s69-97 EAC - Other exceptions

Question 10

What is first hand hearsay? Is it admissible? and if so how? - CEA

Answer 10

S62 - Defines first hand hearsay is ‘previous representation that was made by a person who had personal knowledge of an asserted fact’. A person will have personal knowledge of a fact if it is based on something that the person saw, heard or otherwise perceived.

The starting point is that first hand hearsay is not admissible (s59), however it can be admissible in four circumstances.

If party wants to rely upon in must give reasonable notice to other party s 67.

1. 63 - Civil - Maker not available
2. 64 - Civil - Maker available
3. 65 - Criminal - Maker not available
4. 66 - Criminal - Maker available
5. 66A - contemporaneous statements about a person’s health

Question 11

When can hearsay evidence (oral or document) be admitted where the maker is NOT available in civil trials?

Answer 11

s 63 CEA

Question 12

When can hearsay evidence (oral or document) be admitted where the maker is available in civil trials?

Answer 12

s 64 CEA - Hearsay rule does not apply if it would cause undue expense or undue delay, or would not be reasonably practicable, to call the person who made the representation to give evidence…

Question 13

When can hearsay evidence be admitted where the maker is NOT available in criminal
trials?

Answer 13

s 65 - Hearsay rule will not apply where (1) the representation was made under a duty to make it (2) reliable - made short after the asserted fact occurred and unlikely to be a fabrication (3) was made in circumstances highly reliable (4) against interests of person who made it and in circumstances made it reliable.

s65(3) exception if a previous representation was made in the course of giving evidence in another proceeding and the person making the representation was cross examined or there was an opportunity to cross examine.

Question 14

When can hearsay evidence be admitted where the maker is available in criminal
trials? - EAC

Answer 14

s66 EAC - exception - he occurrence of the asserted fact was fresh in the memory of the person who made the representation.

Question 15

Which EAC section emulates common law dying declaration exception? (criminal
proceedings only) - EAC

Answer 15

s 65 EAC Hearsay exceptions where maker not available in criminal proceedings

Question 16

Is first hand hearsay about contemporaneous statements about a person’s health etc admissible? - EAC

Answer 16

s 66A

Question 17

What is the business records exception to Hearsay?- EAC

Answer 17

EAC 69 Hearsay rule does not apply to business records (documents made in the course of business i.e. invoice) where representation made by person in the document had personal knowledge of asserted fact (saw, head, or perceived)

Question 18

Are Tags, Labels, and writing attached to or on objects admissible? - EAC

Answer 18

EAC 70 - Yes if it was attached in the course of business for the purposes of describing or stating the identity nature, ownership, origin, weight, destination, origin, or wright of the object.

Question 19

What section concerns hearsay rule in interlocutory proceedings? - EAC

Answer 19

EAC 75 - In an interlocutory proceeding, the hearsay rule does not apply to evidence if the party who adduces it also adduces evidence of its source.

Question 20

Is hearsay evidence of reputation admissible? - EAC

Answer 20

EAC 73

Question 21

Does the hearsay rule apply to admissions when the EAC applies?

Answer 21

s 81EAC - The hearsay rule does not apply to admissions.

Question 22

What EAC section is discretion to exclude ADMISSION for unfairness? Criminal
only

Answer 22

s 90 EAC - court has discretion to exclude admissions adduced by prosecution where there would be an unfairness to the defendant

Question 23

What are the QEA statutory exceptions to hearsay? (Hint 6)

Answer 23

s 17-19; s101 - Previous inconsistent statement, if proved, is admissible as evidence.

s 93 - Documentary evidence - Books of account - Documentary evidence of fact is admissible in criminal proceeding where oral evidence would be admissible if (1) the document is a business record made by person with personal knowledge of matters it deals with and (2) the person who supplied the information is dead, unfit, out of state and not reasonably practicable to attend, can’t be found, or cannot be expected to remember the matters dealt with in the document.

s 93A - Statements made by a child or person with impaired mind- Where oral evidence of a fact would be admission but are contained in a document….the document is admissible (1) if the person is a child had personal knowledge of the matter and (2) is available to give evidence.

s93B - Where person is unavailable “dying declarations” - In a prescribed proceeding, a witness can give evidence, an oral or documented statement about a fact in issue made by a person who is dead (or incapacitated) is admissible provided that the witness who recites the statement in court actually heard in made, so that it is “first hand hearsay”…the statement must be made in the circumstances outlined s93B (shortly after the fact happened and in circs where it is likely to be a fabrication, made in circus highly prob to be reliable, or made against the interests of the person who made it )…jury must be given warning about weaknesses of hearsay evidence. N.B. 93C warning to jury.

s 95 - Documents produced by devices - A statement contained in a document or thing produced by a device or process is admissible as evidence of a fact

s 92 - ‘first head hearsay’ - civil proceedings

Question 24

What is the difference between an admission and confession?

Answer 24

Informal admissions are the leading exception to hearsay.

A confession is a either a direct admission of guilt, or an admission of some fact tending to establish guilt.

An admission is a statement by a party that is adverse to that parties interests (i.e. circumstantial facts, or false denial of guilty).

Question 25

What is rationale behind exempting admissions from hearsay rule?

Answer 25

What a party says against himself is likely to be true and a confession well provided gives the best evidence that can be produced.

Question 26

If a confession contains both inculpatory vs exculpatory (mixed) statements what must the prosecution do? and are purely exculpatory statements admissible?

Answer 26

The prosecution must tender the document in it’s entirety. This is because a party is entitled to have the whole context of the admissions in evidence for fairness (Nguyem v The Queen).

No - inadmissible hearsay

Question 27

Are ‘vicarious admissions’ admissible?

Answer 27

Informal admissions are main exception to hearsay rule.

A party can make vicarious admissions by an agent who is expressly or implied authorised to do so such as defence counsel or co-conspirator.

Question 28

In what circumstance does silence constitute admission/confession? Common law and CEA

Answer 28

Common law - Silence is the face of accusations by a person of authority is normally an admission. The right to silence can not lead to an adverse inference. Notwithstanding, when a questioner and accused are on equal terms, it may be unreasonable to not respond to an accusation, and then in silence may be tantamount to assent…example failure to claim innocence in a conversation with two friends was treat as an admission (R v Alexander…Vic supreme Court)

CEA - s 89 evidence of silence not admissible.

Question 29

How can lies be treated as admissions? (hint case)

Answer 29

Edwards v The Queen - The telling of a lie by an accused may constitute evidence,
as it amounts to conduct which is inconsistent with innocence and an
implied admission of guilt (‘consciousness of guilt’).

A lie will show a consciousness of guilt (evidence of fact) only (1) if it indicates knowledge of the offence (2) told because the accused knows the truth would condemn them and (3) can not be explained away.

Edwards direction must be given the jury about any innocent interpretation reasonably open to explain the lie (i.e. shock of being arrested, embarrassment).

If reasonable explanation is open, the lie can only be used as evidence of credit (etc work of fiction).

Question 30

Are informal admissions an exception to hearsay?

Answer 30

An informal admission by words or conduct is admissible as evidence against the party of the truth of its contents.

Question 31

What are some examples of conduct which can be considered an implied admission? (5)

Answer 31

(1) flight
(2) tampering with evidence
(3) displaying shock when misconduct is revealed
(4) failing to stop after an accident
(5) expressing regret to a victim of a crime

Question 32

What is the requirement for a confession to be admissible?

Answer 32

A confession will only be admissible if it was voluntary. The focus is on whether the accused will was overborne.

A confession must be voluntary to be admissible which means it (1) must not be induced by threat or promise (see s 10 Criminal Law Amendment Act), and (2) there must not be basal involuntariness (i.e. at the time of the confession the accused mind was so unbalanced it would be unsafe to rely upon - - extreme stress, unsoundness of mind, attempted suicide).

Can have a voir dire to determine admissibility…onus on prosecution on the balance of probabilities to establish it was voluntary.

Question 33

Does intoxication make a confession or admission inadmissible?

Answer 33

Intoxication does not automatically make a confession inadmissible unless it is so clear the suspect was deprived of free will or such to suggest a degree of unreliability that discretionary exclusion is appropriate.

Question 34

Are acts of declarations of an accomplice or co-conspirators nor in the presence of the defendant admissible?

Answer 34

Usually, acts or things done by other persons absent the defendant are not admissible.

However, in conspiracy cases acts of things done by co-conspirators are admissible and can be considered proof of the defendant’s guilt, if the act or things done are in furtherance of a common purpose of an agreement alleged to have been entered into the parties (Tripodi).

Simply, the evidence is admissible not only as evidence of the existence of the conspiracy but also the defendant’s participation in it.

“Partners in crime”

Question 35

Res gesta statements are an exception to hearsay…why

Answer 35

Statements which are a part of the transaction, spontaneous, or contemporaneous to the event or lack concoction are admissible as Res geste an exception to hearsay (R v Ratten). This is because of their overwhelming relevance and reliability.