Hearsay Application Flashcards
Structure for a hearsay application
- Define hearsay
- General rule: hearsay is inadmissible, unless an exception applies
- Identify exception
a) under statute - unavailable witness, business documents, previous inconsistent statements
b) common law - public information, reputation, res gestea, confessions, common enterprise, body of enterprise
c) in the interests of justice
d) agreement of the parties - MULTIPLE: consider if it is a business document, an inconsistent statement or a consistent statement, if all the parties agree, if the value of the evidence is so high that it is in the Interests of Justice
- EXPLAIN why none of the prosecution exclusion arguments apply
- Business document: the court has discretion to exclude such a business document if it is satisfied that the statement’s reliability is doubtful
- Superfluous: waste of time
- Would be unsafe
- s78 (all) - adverse effect on fairness of proceedings
What is the definition of hearsay?
Evidence which is not given directly: statement made out of court, by the statement maker intending another to believe it, as truth of the matter stated
R v Twist:
- identify what the relevant fact (matter) is sought to prove
- ask whether there is a statement of that matter in the communication
- if yes, ask whether it was one of the purposes of the statement maker that the recipient, or another person, should believe that matter
YES = hearsay
What are the considerations for whether hearsay should be admitted in the Interests of Justice?
- Probative value
- What other evidence
- Context of the case as a whole
- Reliability
- Circumstances
What should a court do if a witness is unavailable due to fear (statutory exception to admit hearsay)?
If unavailable because of fear then (a) a court must believe it is in the interests of justice to admit it, and (b) the ear has not been provoked by adducing party
Fear is widely construed, but when granting leave, the court will consider:
- contents of the statement
- unfairness to the other party if admitted
- special measures
- other circumstances
Why is hearsay inadmissible?
- There is no opportunity to see the witness’s account tested under cross-examination
- Not as reliable, accurate, issues with truthfulness and ambiguity
- The court has no opportunity to see demeanour of statement maker
- Statement is not made on oath
