Hearsay, opinion, admissions and discretions Flashcards
What rule is section 59 and what are three factors for its application
HS.
- Out-of-court representation;
- Made by a person;
- adduced in support of a fact the person intended to assert
Example
Subramanium -
1. Representation - we’ll kill you if you don’t carry the ammunition ✓
- Made by a person - terrorists ✓
- (a) fact intended to be asserted - we’ll kill you if you don’t…
(b) basis adduced: evidence that Sub under duress NOT that he would in fact be killed X - not hearsay
What does section 60 do?
Once evidence is admitted for a non-hearsay purpose, it can then be used for any other purpose - in for a penny in for a pound
But it must be admissible for the other purpose - e.g. it needs to pass the hurdles for relevance, opinion, tendency & co-incidence, character, identification…
While s60 lifts the hearsay rule in certain circumstances, the powers conferred by s135 (General discretion to exclude evidence), s136 (General discretion to limit use of evidence) and s137 ([Mandatory] Exclusion of prejudicial evidence in criminal proceedings), provide controls to ensure, in particular, that unfair prejudice is avoided (Schanker v The Queen [2018] VSCA 94, [84]).
For example, s60(1) lifts the hearsay exclusionary rule from the evidence of an expert witness as to the basis of his or her opinion which otherwise could not be used to prove the truth of the facts relied on (because of the hearsay rule). Section 136 may be used to limit the use of this evidence, and s135 and s137 to exclude the evidence if their terms apply.
S60 Does not apply to admissions
What does s62 do?
States prior representation in DIV 2 of 3.2 means first hand HS therefore the exceptions in DIV 2 only apply to first hand hearsay
What is first hand HS?
S62(1) first hand HS =maker’s statement based on personal knowledge (2) personal knowledge = direct perception with 5 senses or can something reasonably supposed to be based on direct perception
What is “personal knowledge” for the purposes of s62 and what is personal knowledge used to establish ?
S62(2) personal knowledge = direct perception with 5 senses or something reasonably supposed to be based on direct perception
Relevant to establishing whether first hand HS
What do ss63 and 64 do? And which one is which?
They are the Civil Maker available and unavailable sections
s63 is maker unavailable civil - first hand HS exception
s64 is maker available civil (aka “available but”) - first hand HS exception
What does s64 do?
Maker available civil
1. Section 64 effectively creates two separate exceptions to the hearsay rule in the above circumstances:
o (a) under s64(2), ‘available but rule’- if it would cause undue expense, undue delay or would not be reasonably practicable to call the maker of the representation, the hearsay rule does not apply to:
evidence of a previous representation given by a person who saw, heard or otherwise perceived the representat6ion being made; or
a document in so far as it contains the representation or is needed to understand the representation.
o (b) under s64(3), if the person who made the representation has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation given by:
that person; or
a person who saw, heard or otherwise perceived the representation being made.
o In these circumstances, unless the court gives leave, a document containing the representation must not be tended before the conclusion of the examination-in-chief of the person who made the representation (s64(4)).
Undue expense, undue delay or not reasonably practicable
2. Relevant matters in determining whether it would cause undue expense to call the maker of a representation include:
o the actual cost of securing the witness’s attendance;
o the amount of that cost compared to the value of what is at stake in the litigation; and/or
o the importance of the evidence the witness might give (Wilson v Mitchell [2014] VSC 332 at [19] per T Forrest J; Caterpillar Inc v John Deere Ltd (No 2) [2000] FCA 1903 at [25] per Heerey J).
• Fact of W being OS is rarely enough for it to be too expensive to call a witness or likely to create undue delay- It will often be practicable to secure an overseas witness’ attendance by means of an audio-video link (Wilson v Mitchell [2014] VSC 332 at [20] per T Forrest J).
• Credibility of persons who are not witnesses Section 108A allows a party against whom hearsay evidence has been admitted in circumstances where the person who made the previous representation was not called as a witness, to adduce credibility evidence about that person if the evidence could substantially affect the assessment of that person’s credibility (s108A).
• Notice required s64(2). A party must provide reasonable notice in writing to each other party of its intention to adduce first-hand hearsay evidence. That notice must set out the provisions and grounds relied upon (s67).
• Objections to tender of hearsay evidence in civil proceedings if maker available
• A party may object to the failure to call a witness on the grounds of undue expense or delay or impracticability (s68). The court will determine whether the objection is unreasonable, and may order the objecting party to bear the costs of calling the person who made the representation.
Giving a notice to the other side of your intention to rely on ss 63(2), 64(2) and 65(2), (3) or (8), with the prescribed particulars, is a condition for the admissibility of first-hand hearsay evidence – See: Evidence Regulation 2005 (NSW), clause 4; UCPR rule 31.5. However, the court can dispense with the requirement for notice: s 67(4),(5), and the different courts have taken different attitudes to these notice requirements.
Name some unavailable definitions and name the two maker unavailable sections for civil and criminal
Section 63 is maker unavailable civil
Section 65 is maker unavailable criminal
Dictionary Clause 4 part 2
4 Unavailability of persons
(1) …a person is taken not to be available to give evidence…if–
(a) the person is dead, or
(b) the person is, for any reason other than the application of section 16 (Competence and compellability: judges and jurors), not competent to give the evidence, or
(c) the person is mentally or physically unable to give the evidence and it is not reasonably practicable to overcome that inability, or
(d) it would be unlawful for the person to give the evidence, or
(e) a provision of this Act prohibits the evidence being given, or
(f) all reasonable steps have 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, or
(g) all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success.
(2) In all other cases the person is taken to be available to give evidence about the fact.
What is s65 and what are the basic criteria of the admissibility of court proceedings tucked at the back?
s65= maker unavailable criminal first hand HS exception
WITNESS UNAVAILABLE + PRIOR COURT PROCEEDING + CROSS OP +NOTICE
Court proceedings exception:
S65(3) can admit first hand HS evidence from unavailable witness given in an Australian or overseas proceeding where the accused had an opportunity to cross-examine or did X examine + notice required
Name 5 second hand or remote HS exceptions
- •business records (s 69)
- •tags and labels (s 70)
- •telecommunications (s 71)
- •contemporaneous statements about a person’s health etc (s 72)
- •marriage, family history or family relationships (s 73)
- •public or general rights (s 74)
- •use of evidence in interlocutory proceedings (s 75)
- •admissions (s 81)
- •representations about employment or authority (s 87(2))
- •exceptions to the rule excluding evidence of judgments and convictions (s 92(3))
- •character of and expert opinion about accused persons (ss 110 and 111).
- What is the criminal maker unavailable 1st hand HS exception
s65 criminal maker unavailable 1st hand HS exception
Name the 3 criteria for the application of s65
S65(2) 3 CRITERIA – UNAVAILABLE + RELIABILITY CRITERIA + NOTICE
UNAVAILABLE + RELIABILITY CRITERIA+NOTICE
(a) Maker under a duty;
(b) representation shortly after event and fabrication unlikely;
(c) not shortly after BUT circumstance where fabrication highly unlikely;
(d) against interests of maker and representation probably reliable
Name the four reliability criteria under s65 (2)
(a) Maker under a duty;
(b) representation shortly after event and fabrication unlikely;
(c) not shortly after BUT circumstance where fabrication highly unlikely;
(d) against interests of maker and representation probably reliable
Name 5 examples of an unavailable witness
S65(2)CRITERON 1 - UNAVAILABLE -DEFINITION
Dictionary Clause 4 part 2
4 Unavailability of persons
(1) …a person is taken not to be available to give evidence…if–
(a) the person is dead, or
(b) the person is, for any reason other than the application of section 16 (Competence and compellability: judges and jurors), not competent to give the evidence, or
(c) the person is mentally or physically unable to give the evidence and it is not reasonably practicable to overcome that inability, or
(d) it would be unlawful for the person to give the evidence, or
(e) a provision of this Act prohibits the evidence being given, or
(f) all reasonable steps have 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, or
(g) all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success.
(2) In all other cases the person is taken to be available to give evidence about the fact.
What is the notice provision for HS and what are the requirements
s67
(3) The notice must state—
(a) the particular provisions of this Division on which the party intends to rely in arguing that the hearsay rule does not apply to the evidence; and
(b) if section 64(2) is such a provision—the grounds, specified in that provision, on which the party intends to rely.
However, where there has been a failure to comply with the notice requirement, the court may give leave to admit the evidence anyway: s67(4). In determining whether to grant leave, s192(2) matters must be taken into account: Stanoevski.6 In particular, prejudice, expense and delay are likely to be relevant: Tsang Chi Ming.7
Name 5 remote HS exceptions
The Daddy of all 2 hand HS exceptions s60 - dual relevance
The rest
• •business records (s 69)
• •tags and labels (s 70)
• •telecommunications (s 71)
• •contemporaneous statements about a person’s health etc (s 72)
• •marriage, family history or family relationships (s 73)
• •public or general rights (s 74)
• •use of evidence in interlocutory proceedings (s 75)
• •admissions (s 81)
• •representations about employment or authority (s 87(2))
• •exceptions to the rule excluding evidence of judgments and convictions (s 92(3))
• •character of and expert opinion about accused persons (ss 110 and 111).
Other Exceptions to the Hearsay Rule
Business Records: Section 69 Evidence Act
Under s. 69 of the Evidence Act a representation in a document is admissible if:
- the document contains a previous representation made in the course of or for the purposes of the business
- forms part of the records kept in the course of or for the purposes of the business (s. 69(1))
- the representation was made by a person who might be reasonably supposed to have personal knowledge of an asserted fact, or on the basis of information directly or indirectly supplied by such a person (s. 69 (2)) and
- the document was not prepared or obtained for or in contemplation of legal proceedings, or in connection with an investigation relating to or leading to a criminal proceeding (s. 69(3)).
Representation
It appears that a representation includes an opinion: Ringrow Pty Ltd v BP Australia [2003] FCA 933.
Business
Business is defined extremely widely in clause 1 Part 2 of the Dictionary as follows:
Part 2 Other expressions
1 References to businesses
(1) A reference in this Act to a business includes a reference to the following:
(a) a profession, calling, occupation, trade or undertaking,
(b) an activity engaged in or carried on by the Crown in any of its capacities,
(c) an activity engaged in or carried on by the government of a foreign country,
(d) an activity engaged in or carried on by a person or body holding office or exercising power under or because of the Commonwealth Constitution, an Australian law or a law of a foreign country, being an activity engaged in or carried on in the performance of the functions of the office or in the exercise of the power (otherwise than in a private capacity),
(e) the proceedings of an Australian Parliament, a House of an Australian Parliament, a committee of such a House or a committee of an Australian Parliament,
(f) the proceedings of a legislature of a foreign country, including a House or committee (however described) of such a legislature.
(2) A reference in this Act to a business also includes a reference to:
(a) a business that is not engaged in or carried on for profit, or
(b) a business engaged in or carried on outside Australia.
A similar definition under the previous Evidence Act (1898) was held to include hospital records (Albrighton v RPAH [1980] 2 NSWLR 542, Regina v Perry (No.3) (1981) 28 SASR 112). It can include police records (Regina v Reynolds (1993) 17 A Crim LJ 130, Regina v Perry (No. 4) (1981) 28 SASR 119), but this is subject to the exception in s. 69(3) discussed below.
Records
‘Document’ is defined widely in the Dictionary and includes writing, symbols, marks, or something which records sounds and images. Under the previous legislation it was held that ‘record’ does not include letters received by a business: TPC v TNT (1984) 56 ALR 647. It does include tape recordings: ANA v Commonwealth (1975) 132 CLR 582 at 594.
Person With Personal Knowledge.
The representation must have been made by a person who might reasonably be supposed to have personal knowledge, or on the basis of information supplied directly or indirectly by such a person. It does not include records of another business without proof of something like a contract of service: Ross McConnel Kitchen v Ross (1985) 1 NSWLR 233.
It is not a bar to the use of the provision if the person who made the representation cannot be identified: Lee v Minister for Immigration [2002] FCAFC 305
Statements Made in Contemplation of Legal Proceedings
The business records exception does not apply to a statement made for or in contemplation of legal proceedings or made in connection with an investigation relating to or leading to a criminal investigation (s. 69(3)).
Proof of a Negative
The absence of a reference to the occurrence of an event in business records can be used as evidence that the event did not occur: s. 69(4) Evidence Act.
Tags, Labels and Writing: Section 70 Evidence Act
The hearsay rule does not apply to tags or labels attached to an object or writing on the object if the tag, label or writing may reasonably be supposed to have been so attached or placed in the course of business and to describe the identity, nature, ownership, destination, origin, weight, or contents of the object: s. 70 Evidence Act. This provisions does not apply to Commonwealth prosecutions under the Customs Act or the Excise Act: s. 70 (3) Evidence Act (Commonwealth).
Telecommunications: Section 71 Evidence Act
The hearsay rule does not apply to representations in an e-mail, fax, lettergram or telex but only so far as the representation is as to the identity of the sender, the date the message was sent, and the identity of the addressee: s. 71 Evidence Act.
Contemporaneous Statements About Health etc: Section 72 Evidence Act
The hearsay rule does not apply to contemporaneous representations by a person about the person’s health, feelings, sensations, intention, knowledge or state of mind: s. 72 Evidence Act. This exception broadly corresponds with the common law: see Walton v The Queen (1989) 166 CLR 283. Thus, for example, at common law the history given by patient to a doctor was admissible as part of the foundation for the doctor’s opinion: Ramsay v Watson (1961) 108 CLR 642.
An expansive view has been suggested for the operation of s. 72 which would permit the admission of a person’s representation about his or her memory of an incident, even at a time when this memory was not ‘fresh’, on the basis that it is a representation about a person’s ‘memory’ or ‘state of mind’. If this expansive view of section 72 was correct, the careful limitations set out in sections 64 and 66 of the Evidence Act would be completely unnecessary. The suggestion that s. 72 applied to statements about memory of events was rejected in Regina v Polkinghorne (1999) 108 A Crim R 189. Similarly it was doubted that s. 72 applied to the identification of persons in Regina v Barbaro and Rovere (2000) 112 A Crim R 551.
At common law statements to experts and in particular to doctors were admissible but not as to the fact that they were true: Ramsay v Watson (1961) 108 CLR 642. The history needed to be proved, usually by calling the patient. As a result of s.60 Evidence Act, the history given to a doctor is evidence of the truth of what was said: Regina v Welsh (1996) 90 A Crim R 364. This is of course particularly important in relation to psychiatric defences or partially defences in criminal trials. It means that if an expert witness such as a doctor or psychiatrist is called by the defence, it may not be necessary to call the accused. However experience suggests that most judges are reluctant to give much weight to a history unsupported by evidence from the patient.
Age and Relationships: Section 73 Evidence Act
Hearsay does not apply to evidence of ‘reputation’ as to whether or not a person is married, whether a man and a woman were cohabitating or married at a particular time, and about a person’s age: s. 73 Evidence Act. This is partly to overcome the strict view taken in some cases that technically only someone present at a person’s birth could give evidence of the person’s age without breaching the rule against hearsay. Even someone giving evidence about his or her own age was treated as strictly hearsay. However, at common law such evidence was normally admitted: Smith v Police [1969] NZLR 856, Rex v Turner [1910] 1 KB 362.
In criminal proceedings, evidence of ‘reputation’ as to age, relationship or marriage led by the prosecution is only admissible to contradict evidence of such a ‘reputation’ which has already been admitted. Evidence of ‘reputation’ as to age, relationship or marriage led by the defence is only admissible if the defence has given reasonable notice in writing if its intention to lead this evidence, or if it tends to contradict evidence already admitted on that topic.
This exception deals with the fact of a relationship, not its quality: Regina v Mrish (NSW SC, Hidden J, unreported 15/8/1996).
Evidence About Public Rights: Section 74 Evidence Act
The hearsay rule does not apply to evidence of reputation concerning the existence, nature or extent of a public or general right: s. 74 Evidence Act. This provision reflects the common law position.
In criminal proceedings, evidence of reputation of such public or general rights can only be led by a prosecutor if it tends to contradict evidence of that kind that has already been admitted.
Interlocutory Proceedings: Section 75 of the Evidence Act
The hearsay rule does not apply in interlocutory proceedings if the party adducing the evidence also adduces evidence of the source of the evidence: section 75 of the Evidence Act.
