Evidence - Hearsay

Question 1

What is hearsay?

Answer 1

An out of court statement which is being offered in court for the truth of what was asserted.

CTH EA s59 defines the Hearsay Rule

Question 2

When is hearsay inadmissible?

Answer 2

A statement is hearsay and inadmissible when the object of the evidence is to establish the truth of what was contained in the statement.

Subramaniam v DPP

Question 3

If a hearsay statement is being offered as evidence that the statement was made and NOT for the truth of it’s contents, is it admissible?

Answer 3

Yes.

Question 4

What is the rationale of the hearsay rule?

Answer 4

Reliability.

A witness is required to testify about what they saw, heard, smelt or felt.

NOT

What they know about because of what they have been told.

Question 5

What are the issues with hearsay evidence?

Answer 5

It is unreliable.

Cannot cross examine the person who actually made the statement.

Question 6

What are the five common law exceptions to the hearsay rule?

Answer 6

1. Res Gestae
2. Declarations by a person now deceased
   - declarations against pecuniary/ proprietary interest
   - declarations made in the course of a duty
   - dying declarations
3. Declarations as to health, fitness and mental state
4. Statements made in previous proceedings
5. Informal admissions

Question 7

What is Res Gestae?

Answer 7

Evidence of knowledge of a persons state of mind.

When a persons state of mind is relevant, evidence which tends to prove that fact is admissible.

Question 8

Give an example of Res Gestae.

Answer 8

When an identifying witness forgets which photograph he identified from a folder shown to him by police -

Evidence may be led of what he said/did at the time of the ID.

There MUST be an absence for the opportunity of reflection.

Question 9

Name two cases that cover Res Gestae.

Answer 9

Ratten v The Queen [1972] (wife calls for police on phone right before being killed)

R v Andrews [1987] (Spontaneity of the statement under the influence of the events to which it relates)

Question 10

What is a declaration against interest and when would it be admissible?

Answer 10

A statement by a deceased person that was against their ‘financial interests’.

It was made admissible evidence PROVIDED the declarant had personal knowledge of the facts and matters.

Admissible on the ground that it was given additional reliability by the fact a person would hardly make the statement if it were not true.

Higham v Ridgway (1808)
Watt v Miller [1950]

Question 11

When and why is a statement made in the course of duty admissible as an exception to the hearsay rule?

Answer 11

There is a guaranteed trustworthiness of the statement.

Conditions of admissibility:
1. Declarant should be dead.
2. Statement must be fact not opinion.
3. Declarant must have been under a duty to do an act and record. report it - the duty must relate to acts done by the declarant.
4. The act must have been performed.
5. Statement to be made contemporaneously.

*Think police officer notebook. (R v O’Meally)

Question 12

What is a dying declaration and when does it apply as an exception to the hearsay rule?

Answer 12

Only in homicide cases.

Restricted to a statement by the victim:
- deceased
- must have been competent to be called as a witness if alive
- must at the time of making the statement have been in a ‘settled, hopeless expectation of death’ (maker must believe that they are likely to die)

Western Australia v Montani [2006]
R v Bernadotti (1869)

Question 13

When can contemporaneous statements about thoughts and feelings be admissible?

(Declarations as to health, fitness and mental state).

Answer 13

When used to prove that he or she had those thoughts or feelings at the time the statement was made.

The exception may be used to prove:

1. Pain and suffering in a plaintiff case.
2. In an action for wrongful arrest, the AO’s reasonable belief that there was good cause to arrest the plaintiff.
3. That A intended to meet B (and inferentially did so) (Walton)

Question 14

What is the telephone exception?

Answer 14

Statements made during or immediately after a telephone conversation are admissible to identify the other party to the conversation.

Walton v The Queen

Question 15

When are statements made in previous proceedings admissible?

Answer 15

Civil and criminal cases.

• Sworn evidence
• Same parties
• Proceedings relate to substantially similar issues
• Witness cannot attend due to death, serious illness or absence abroad etc.

Pallante Stadiums Pty Ltd (No 2) [1976]

R v Thompson [1982]

s79/s80 Qld EA

Question 16

What is an informal admission and why is it an exception to the hearsay rule?

Answer 16

Basically some acknowledgement of liability by a party.

Rationale for admitting it is that it is made against the interest of the maker and therefore more reliable.

Can be written, oral, or by conduct.

Question 17

Give some examples of implied admissions.

Answer 17

Lies of the accused (Edwards v The Queen).

Post -offence conduct (like fleeing from he scene: indicative of a guilty conscience).

False alibis or statements. (R v Rudd).

Question 18

Which sections of the Queensland Evidence Act deal with the exceptions to hearsay?

Answer 18

s 92 - documentary hearsay in CIVIL cases

s93 - documentary hearsay in CRIMINAL cases

s93A - admission of out of court statements of a child and intellectually impaired witnesses.

s93B - persons unable to testify (dead etc).

s93C - warnings that accompany 93B.

s95 - documentary hearsay generated by computer

s95A - DNA evidence by certificate

Question 19

Are there any common law exceptions to the hearsay rule at Commonwealth law?

Answer 19

No - entirely statutory. Admits no common law.

Question 20

What are the sections in the Commonwealth EA that deal with hearsay and it’s exceptions?

Answer 20

ss59 - 75.

Question 21

What are the two types of documentary evidence admissible in civil cases under s92 of the EA 1977 (Qld)?

Answer 21

1. Statements which contain first and hearsay (maker had knowledge of their contents; and
2. Statements recorded or compiled in the course of what is called an ‘undertaking’ based on information supplied by a person who had personal knowledge of what was being recorded.

In BOTH cases the statement must be such that it would be admissible if given in oral form.

Question 22

What are the exceptions in s92(2) to calling the maker of the statement as a witness?

Answer 22

1. Maker is dead, or either physically or mentally unfit to attend.
2. The maker or supplier is out of the state and It is not ‘reasonable practicable’ to secure their attendance.
3. The maker or supplier cannot ‘with reasonable diligence’ be found or identified.
4. It cannot be reasonable supposed the mater or supplier would have any recollection of the matters dealt with in the statement, having regard, inter alia, to the lapse of time since then.
5. None of the parties who would have a right to cross-examine the maker or supplier require them as a witness.
6. At any stage of the proceedings, it appears to the court that in the circumstance it would involve ‘undue delay or expense’ to call the maker or supplier.

Question 23

When is documentary hearsay in criminal cases admissible?

Answer 23

s93

When the documents form part of a record relating to trade or business.

Admissible if direct oral evidence of the fact would be admissible.

Make of statement dead/ out of state/ cannot be found etc.

Question 24

Are bankers books and business records an exception to the hearsay rule?

Answer 24

Yes. s84/s86 QLD EA

in ALL proceedings, an entry in a book of account shall be evidence of the matters, transactions and accounts therein recorded and a copy of the book shall be evidence of the entry and of the matters/ transactions and accounts therein recorded.

Bankers notes, ledger card, diary, invoices, bank statements. Anything kept in the ORDINARY course of business.

Question 25

What are the differences between State and Federal statutory exceptions to hearsay?

Answer 25

Federal - s60 Allows original evidence to be used testimonally.

Hearsay rule does not apply to a proper statement admitted for another purpose.

Federal - once a statement is admitted as original evidence or as evidence of credit, it may be used to prove the facts it asserts regardless of hearsay.

Question 26

When will s93A apply?

Answer 26

Mostly applied in criminal trials when kids are victims.

s21A(1) - what is required before a statement is admissible under 93A.

1. Maker = child/ impaired at time of making statement
2. Maker had personal knowledge of its contents
3. Maker = able to give evidence in the proceeding.
4. Statement in question is a document (covers video/tape recording).

Question 27

s93B - persons unable to testify (dead etc).

Answer 27

Evidence can now be admitted even though victim still alive (e.g statement of victim attempted murder, rape etc. where they have been left physically or mentally incapable of testifying).

Question 28

What are the three conditions to be satisfied to admit evidence under 93B(2)?

Answer 28

Statement made:

a). at time of, or shortly thereafter the event to which it relates in circumstances rendering it unlikely that it is a fabrication; or

b). in circumstances making it highly probable that it is reliable, or

c). against the interests of the maker at the time it was made.

ONLY need to satisfy one of these requirements (R v O’Dempsey).

Question 29

Give an example of the relationship between 93A and 93B.

Answer 29

When it would not be admissible under 93A BUT will still be admissible under 93B.

Rape - girl/child. Gave 93A, at the time of statement was competent.

At time of trial was not capable of giving ‘intelligible’ account of events.

Still admissible under 93B - because what she had told her mother and police in the 93A (recorded interview) was ‘representations of asserted facts’ that were told shortly after the event in question (rape).

R v SCJ; Ex-parte Attorney General [2015] QCA 123.

Question 30

What must Judge do under 93C if asked by either party?

Answer 30

Giving warning to jury of the potential unreliability of hearsay evidence.

Question 31

What does s95 of EA 1977 (Qld) deal with?

Answer 31

Documentary hearsay generated by processes or devices. (Computer Evidence).

Allows for evidence to be admitted provided that someone can vouch for the reliability of the computer and the system under which it was employed.

Think TMR documents/records. QPS records.

Question 32

Which section deals with DNA by certificate?

Answer 32

s95A