Hearsay

Question 1

What is the relevance of Subramaniam v Public prosecutor?

Answer 1

If the purpose relied on is an admissible purpose then the evidence goes before the court. If it is an excluded purpose then the evidence does not go before the court

E.g. subramaniam was using the actions of the terrorist ans saying “im a communist” to demonstrate he was under duress not for the truth of the statement

Question 2

What is the relevance of r v walton?

Answer 2

Witness heare friend on the phone say i will see you at 9am and then child said hello daddy I’ve been good.

Issue should conversation be excluded as hearsay?

Not hearsay. the conversation and purpose was admissible for non hearsay purpose.

Question 3

What is Section 55 evidence Act ?

Answer 3

The evidence that is relevant in a proceeding is evidence that if it were accepted could rationally affect (directly or indirectly) the assessmemt of the probability of the existence of a fact in issue in the proceeding.

Question 4

What is section 56 evidenxe act?

Answer 4

Relevant evidence is admissible unless otherwise excluded

Question 5

What is section 59 evidence act?

Answer 5

The hearsay rule.

Evidence of a previous representation
Made by a person
Is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.

Question 6

Does the hearsay rule apply to certificates or documents?

Answer 6

No s59(3) evidence act

Question 7

What is a previous representation?

Answer 7

A representation made otherwise then in the course of giving evidenxe in the proceeding in which evidence of the representation is sought o be adduced.

A representation includes:
A) an express or implied representation
B) a representation to be inferred from conduct
C) a representation not intended by its maker to be communicated to or seen by another person or
D) a representation that for any reason is not communicated.

Question 8

What does made by a person refer to?

Answer 8

Section 21 interpretation act 1987- person includes an individual, a corportafion and a body corporate or politic.

Question 9

What does reasonably be supposed for purposes of s51 mean?

Answer 9

Objective test. It does not matter what the person meant by the representation. What matters is the objective interpretation is called the hearsay purpose or the truth of the representation or asserted fact. Therefore if the purpose for admitting the evidence is the same as the object interpretation that is excluded.

Question 10

What is section 60 evidence act?

Answer 10

Evidence relevant for non hearsay purpose

Question 11

What is section 62 Evidence act?

Answer 11

Rule that only first hand hearsay can be used. Something that the person saw, heard or otherwise perceived.

Question 12

What is section 65 criminal prpcedure act?

Answer 12

Hearsay exception where the maker of the representation is unavailable to give evidence about an asserted fact.

Question 13

When does section 65 apply?

Answer 13

S65(2) the hearsay rule does not apply to tbe evidence of a previous representation that is given by a person who saw, heaes or otherwise perceived the representation being made, if the
A) was made under a duty to make that representation or to make representations of that kind, or
B) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication
C) was made in circumstances that make it highly probable that the representation is reliable or
D) was
I) against the interests of the person who made it at the time it was made, and
Ii) made in circumstances that make it likely that the representation is reliable.

Question 14

Can we just make a umavailable witness application?

Answer 14

No must give notice s67 evidence act.

May apply to dispense with requirement s 67(4) evidence act

Question 15

Who is an unavailable witness?

Answer 15

Clause 4 part 2 dictionary Evidence Act
For the purposes of this act a person is taken not to be available to give evidence about a fact if-
a) the person is dead
b) the person is for any reason other than the application of s16 (judges and jurors not competent to give evidence
c) the person is mentally or physically unable to give evidence and it is not reasonably practicable to overcome that inability or
D) it would be unlawful for the person to give evidence
E) a provision of this act prohibits the evidence being given
F) all reasonable stepsnhave been taken by the party seeking to prove the person is not available, to find the person or secure his or her attendance but without success
G) all reasonable steps have been taken by the party seeking to prove the person is not available to compel the person to give evidenxe but without success

Question 16

What is the criteria for the maker available exception to the hearsay rule?

Answer 16

S66 evidence act-
Evidence of the representation is given by
A) that person or
B) a person who saw, hesrd or otherwise perceived the representation being made
IF when the representation was made the occurrences of the asserted fact was fresh in tbe memory of the person who made the representation.

Question 17

What is fresh in the memory?

Answer 17

S66(2A) consider
The nature of the event concerned
The age and health of the person
The period of time between the occurence of the asserted fact and the making of the representation.

(E.g. evidence of first complaint sexual assault Papakosmas v R (1999)

Question 18

What is section 66A evidence act?

Answer 18

Hearsay exception where representation is about a persons health, feelings, sensations, intention, knowledge or state of mind

Question 19

How does section 60 operate?

Answer 19

On its own to accept it for non hearsay purpose but also if evidence is admitted for another reason eg maker under available, prior inconsistent statement etc than ask the court to accept tbe truth of the statement.

Question 20

What are other examples of hearsay exceptions

Answer 20

Business records s69A 
Tags and labels s70 
Electronic communications s 71 
Family relationships s73 
Admissions s81 
Character of expert evidence of judgment and conviction s110 

Context
Credibility