Exclusionary rule: Hearsay Flashcards
What is the rule against hearsay?
Rule against hearsay prevents the repetition of an out of court statement to assert as true the facts narrated therein (Subramanian v R).
Example: A fact in dispute cannot generally be proved by witness A telling the court what B said about them.
What is the rationale for the rule against hearsay?
(1) preserves the right of cross examination to test evidence;
(2) Best evidence rule;
(3) Unsworn; and
(4) could be product of concoction.
Prior out of court statements do not always offended the rule against hearsay. Discuss.
Hint: “original evidence” or “non hearsay purpose”
The rule against hearsay prohibits the repetition of a prior statement as a true narrative.
However, the making of statement is a fact like any other…which may or may not be a relevant fact.
As such the rule against hearsay, does not prohibit evidence that the statement was made, and when it was said.
Prior statements tendered on his basis is original evidence
What are some examples of prior statements being tendered for a non hearsay purpose? (fix this)
State of mind: Brown v Murray: Evidence of what a person told a police officer which formed the basis of his reasonable suspicion (regardless of the truth of that information) was admissible.
Ratten v The Queen: A witness giving evidence that they heard a wife yell “call the police” may discredit her husband’s claim that nothing was wrong.
R v Kennedy: Evidence of an irrelevant conversation between two suspects may be evidence the two suspects knew each other at the time they claimed they were strangers.
“Implied assertions of fact”…some statements tendered as original evidence may contravene the rule against hearsay…discuss.
The hearsay rule prohibits the repetition of a prior statement to assert as true the facts (expressed or implied) stated therein.
R v Benz - Two woman charged with murder by drowning a man were seen on a bridge. A person (witness) stopped.
The witness gave evidence of the conversation (prior statement) in which he asked whether the persons were alright and they responded they were alright “…my mother is sick”.
This out of court prior statement expressly asserts the fact the other person is sick and impliedly asserts the fact the other person is the mother of the statement maker.
Court held it was hearsay as there was no difference between saying my mother is ill or saying my name is X and this is my mother Y.
s 59 CEA modifies the common law and defines hearsay…discuss
s 59 CEA redefines the common law definition of hearsay as a statement ‘intended’ to assert facts expressed or implied…
What is documentary hearsay?
Where a document is used testimonially - that is a proof of facts asserted in it - it is prima facie hearsay…but that is not so if the document used non testimonially - as real evidence, or legal instrument (i.e. will etc), or evidence of distress etc
