Hearsay Flashcards
explain how Subramaniam works
A tells court that B said that he saw C steal from the shop. Not admissible to prove that C stole, but admissible to prove that B said the words to A. ONLY HEARSAY WHEN THE INTENTION OF ADDUCING THE STATEMENT IS TO PROVE THE TRUTH.
two reasons hearsay is unreliable?
- witness demeanour cannot be assessed
- risk of inaccuracy in versions of events
(Teper)
what’s an implied hearsay statement?
‘John called out, “stop hitting me, Peter”’ Ratten v R
what is an assertion by conduct?
Peter ran from the crime scene Holloway v McFeeters (assertion is that they are responsible for the crime)
explain the res gestae exception
statement made under the influence of the event, without any real possibility for invention or untruth R v Andrews
93B
‘wrung from the mouth of the maker by the event that it was describing with no motive for fabrication or special factors influencing accuracy’
explain how statements made in previous proceedings are an exception
admissible in subsequent proceedings between the same parties provided veracity was tested under cross examination and thereby ‘test’ their veracity Pallante v Stadiums
explain how declarations as to health, fitness, mental state and intention are admissible as evidence?
what a person was experiencing at the time of the statement; a person’s contemporaneous statements about his own health, feelings, sensations, intentions, knowledge or state of mind are admissible (Perry v The Queen)
explain how informal admissions are an exception
what a person is prepared to admit, contrary to their own interests, is likely to be true; confession by criminal Edwards v R (IMPLIED ADMISSIONS OF GUILT, LIES WERE INTENDED TO CONCEAL SOME FACT THAT WOULD PROVE GUILT). If a lie is put to the jury as an implied admission, the jury ought to be directed as to the lie that is relied upon. Edwards direction
Explain how declarations by a person, who is now dead and unavailable, can be admitted at common law?
If, when the declaration was made, it was made against the pecuniary interest of the maker (Higham v Ridgway); made in the course of duty by the maker (The Henry Coxon); or, in homicide cases, were the dying declaration of the maker as to their cause of death (Western Australia v Montani)
explain the distinction between hearsay and original evidence
Hearsay is evidence given by A of what B said to A; offered as proof as what B said was true.
Original evidence is merely adducing evidence that B said ‘something in particular’.
If in a prescribed criminal proceeding, hearsay evidence is admitted in a document because a person the person is unavailable, what should a judge do?
judge may warn the jury at the request of a party under s 93C that hearsay evidence may be unreliable, why hearsay evidence can be unreliable and inform the jury that caution needs to be taken when deciding whether to accept hearsay.
explain how a judge can exclude hearsay evidence even if it is acceptable as an exception to the rule
if admission would be inexpedient to the interests of justice, it can be excluded s 98
what can the judge do if evidence escapes the hearsay rule but there is a perceived bias from the maker of the representation
direct the jury to have regard to the weight which is attached to a statement s 102
- have regard to the circumstances from which an inference can easily be drawn, being information provided contemporaneously with the occurrence or existence of facts, if the maker has any incentive to conceal or misrepresent facts.
4 most commonly encountered common law exceptions
Res Gestae R v Andrews
declarations to health, fitness, mental state, intention R v Perry
Statements made in previous proceedings Pallante v Stadiums
informal admissions Edwards v R
What should you do if there is a reference to a document in a question
say that it fits within the definition of document under s 3 of the Act.
