Evidence - Hearsay Flashcards
What is hearsay?
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
When is hearsay inadmissible?
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
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?
Yes.
What is the rationale of the hearsay rule?
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.
What are the issues with hearsay evidence?
It is unreliable.
Cannot cross examine the person who actually made the statement.
What are the five common law exceptions to the hearsay rule?
- Res Gestae
- Declarations by a person now deceased
- declarations against pecuniary/ proprietary interest
- declarations made in the course of a duty
- dying declarations - Declarations as to health, fitness and mental state
- Statements made in previous proceedings
- Informal admissions
What is Res Gestae?
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.
Give an example of Res Gestae.
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.
Name two cases that cover Res Gestae.
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)
What is a declaration against interest and when would it be admissible?
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]
When and why is a statement made in the course of duty admissible as an exception to the hearsay rule?
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)
What is a dying declaration and when does it apply as an exception to the hearsay rule?
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)
When can contemporaneous statements about thoughts and feelings be admissible?
(Declarations as to health, fitness and mental state).
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:
- Pain and suffering in a plaintiff case.
- In an action for wrongful arrest, the AO’s reasonable belief that there was good cause to arrest the plaintiff.
- That A intended to meet B (and inferentially did so) (Walton)
What is the telephone exception?
Statements made during or immediately after a telephone conversation are admissible to identify the other party to the conversation.
Walton v The Queen
When are statements made in previous proceedings admissible?
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
What is an informal admission and why is it an exception to the hearsay rule?
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.
Give some examples of implied admissions.
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).
Which sections of the Queensland Evidence Act deal with the exceptions to hearsay?
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
Are there any common law exceptions to the hearsay rule at Commonwealth law?
No - entirely statutory. Admits no common law.
What are the sections in the Commonwealth EA that deal with hearsay and it’s exceptions?
ss59 - 75.
What are the two types of documentary evidence admissible in civil cases under s92 of the EA 1977 (Qld)?
- Statements which contain first and hearsay (maker had knowledge of their contents; and
- 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.
What are the exceptions in s92(2) to calling the maker of the statement as a witness?
- Maker is dead, or either physically or mentally unfit to attend.
- The maker or supplier is out of the state and It is not ‘reasonable practicable’ to secure their attendance.
- The maker or supplier cannot ‘with reasonable diligence’ be found or identified.
- 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.
- None of the parties who would have a right to cross-examine the maker or supplier require them as a witness.
- 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.
When is documentary hearsay in criminal cases admissible?
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.
Are bankers books and business records an exception to the hearsay rule?
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.
