4. Hearsay Evidence
HYPO → first consider in detail the inferences that can be drawn from the printouts of e-mails found on Michael’s computer, below. What can be inferred from a print-out?
(a) Now think about the computer that the print-out came from. How did the e-mail get into the computer? When? Who did it? You should now have a picture in your head of an ‘out-of-court act’ (or ‘previous representation’ under the UEL lingo): the creation of an e-mail with a text matching the print-outs you have.
(b) Now, think hard about what inferences a court could draw from the fact that that out-of-court act happened. Which of these inferences could help prove the prosecution’s case?
Next, consider each chain of inferences and identify whether all of the facts in your chain is permitted (as falling outside of s59(1) or within ss 60 or 66A of the UEL):
UNINTENDED FACTS (5.2.7)
Which of the facts in your chains of inferences are ones that the author wanted a reader to infer (i.e. that it
‘can be reasonably supposed that the [author] intended to assert by the’ e-mail)?
• Which of them are ones that the author let slip unintentionally? The latter are not forbidden by s59(1), the UEL’s hearsay rule, meaning the court can find those facts.
But be careful. If your chain includes other people’s out-of-court acts (e.g. things Michael’s been told about his finances), then the court can only find facts that neither person intended to assert.
INTERNAL FACTS (5.3.1)
Do your chains of inferences contain facts about the author’s state of mind (or body) at the time of writing the e-mails? If YES → then s66A permits the court to find those facts, even if the author intended to assert them.
But note the requirement of CONTEMPORANEITY:
• if your chain of inferences includes the author’s internal state before or after the e-mails were sent, then s 66A won’t help with those (but perhaps the author didn’t intend to assert those particular facts?)
NON- HEARSAY FACTS (5.2.6, 5.3.2, 5.3.3)
The textbook mentions various categories of facts you can rationally draw from the out-of-court act or the accompanying mental state. You might want to work out how these would apply to the e-mails, e.g. what could the court infer from the fact that the e-mail was sent, or the fact that the author was in a particular mood when it was sent, which might bear on whether Michael killed Kathleen.
Under the UEL, there are no separate permissions for these sorts of facts (unlike the common law notions of ‘original’ non-hearsay evidence) and you will have to instead rely on the UEL’s general permission for courts to draw unintended inferences (which typically covers all these categories, but not always.)
MULTIPLE FACTS (5.4)
Now think about the particular bit of the e-mail print-out that supports the inference you want the court to draw.
Can more than one relevant inference be drawn from that bit of the e-mail?
Are any of those other chains permitted by both the UEL hearsay rule and by the other rules of evidence discussed later in this course? If YES → s 60(1) provides that the hearsay rule doesn’t bar the court from drawing every inference supported by that bit of the print-out.
Finally, identify whether there are any remaining chains of inferences that don’t fall within the other permissions. They’re forbidden by the UEL hearsay rule. But all is not lost. See if you can use any of the exceptions to the hearsay rule, discussed next seminar.
EVIDENCE ACT 2008 – Part 3.2 Hearsay
SECT 59 THE HEARSAY RULE – EXCLUSION OF HEARSAY EVIDENCE
(1) 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.
(2) Such a fact is in this Part referred to as an asserted fact.
(2A) For the purposes of determining under subsection (1) whether it can reasonably be supposed that the person intended to assert a particular fact by the representation, the court may have regard to the circumstances in which the representation was made.
Subsection (2A) was inserted as a response to the decision of the Supreme Court of NSW in R v Hannes (2000) 158 FLR 359.
Notes:
1 The Commonwealth Act and New South Wales Act include another subsection.
2 Specific EXCEPTIONS to the hearsay rule are as follows –
• evidence relevant for a non-hearsay purpose (s 60)
• first-hand hearsay
civil proceedings, if the maker of the representation is unavailable (s 63) or available (s 64) criminal proceedings, if the maker of the representation is unavailable (s 65) or available (s 66)
• contemporaneous statements about a person’s health etc. (s 66A)
• business records (s 69)
• tags and labels (s 70)
• electronic communications (s 71)
• Aboriginal and Torres Strait Islander traditional laws and customs (s 71)
• 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 an accused (ss 110 and 111) STATUTORY EXAMPLES:
(1) D is the accused in a sexual assault trial. W has made a statement to the police that X told W that X had seen D leave a night club with the victim shortly before the sexual assault is alleged to have occurred. Unless an exception to the hearsay rule applies, evidence of what X told W cannot be given at the trial.
(2) P had told W that the handbrake on W’s car did not work. Unless an exception to the hearsay rule applies, evidence of that statement cannot be given by P, W or anyone else to prove that the handbrake was defective.
(3) W had bought a video cassette recorder and written down its serial number on a document. Unless an exception to the hearsay rule applies, the document is inadmissible to prove that a video cassette recorder later found in D’s possession was the video cassette recorder bought by W.
SECT 60 EXCEPTION – EVIDENCE RELEVANT FOR A NON-HEARSAY PURPOSE
(1) The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact.
(2) This section applies whether or not the person who made the representation had personal knowledge of the asserted fact (within the meaning of section 62(2)).
(3) However, this section does not apply in a criminal proceeding to evidence of an admission.
NOTE: The admission might still be admissible under section 81 as an exception to the hearsay rule if it is "first- hand" hearsay—see section 82.
SECT 66A
EXCEPTION – CONTEMPORANEOUS STATEMENTS ABOUT A PERSON’S HEALTH ETC.
The hearsay rule does not apply to evidence of a previous representation made by a person if the representation was a contemporaneous representation about the person's health, feelings, sensations, intention, knowledge or state of mind.
Identify the uses that can rationally be made of evidence of an out-of-court act and be capable of saying whether a particular use is permitted or prohibited in court proceedings by the UEL’s hearsay rule.
SCOPE AND DEFINITIONS:
HEARSAY RULE → a claim, statement or representation which cannot be relied upon. WHY? Used in law of evidence to describe claim or an assertion made as part of a representation prior to trial and the hearsay rule catches those representations where we are trying to use them to prove the truth of some fact to which a claim or assertion is made.
• Hearsay evidence will usually satisfy requirement of RELEVANCE: s 55 of Evidence Act → the evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
° If are told that someone has said something happened, makes it more likely that it probably did happen
° Tend to believe that people who say that certain things occurred are telling the truth (unless good reason not to)
• excluded bc. of RECTITUDE (accuracy of outcome of proceedings). Note also other purposes of evidence law:
° Respect for due process;
° Efficiency; and
° Rectitude (relevant for purposes of hearsay).
WHY EXCLUDE HEARSAY EVIDENCE? → because person who made representation/claim is assumed not to be giving evidence they are unable to cross examined:
• Pollit v the Queen [1992] HCA 35 McHugh J: ‘the objection to hearsay evidence is that it is unreliable – the declarant is not subject to cross-examination and his or her truthfulness and powers of memory, recall, perception and narration cannot be tested’
• The trial offers various means of testing the reliability and accuracy of evidence given by witnesses. Problem with relaying on accounts by those who don’t give evidence is that there is no possibility of subjecting the account to the things that are thought to be capable of uncovering problems:
(1) Account that’s given wont have come from someone who is giving evidence on oath
(2) No opportunity for the fact finder to observe the demeanour of the person who provided the account because its coming from a third party;
(3) No opportunity to cross examine to test the account.
Extent to which these save guards are reliable is debatable but forms the premise of the hearsay rule’s rationale (how does this link to scope?)
TRIBE’S TRIANGLE:
In any circumstance where we ought to be concerned about the cognitive processes of the person who made some claim representation statement about some fact that we are trying to prove, that person is not available to give evidence (hearing from another person) then the HEARSAY RULE OUGHT TO APPLY.
At each point of the triangle is the fact we are trying to prove:
• “A” is representation or claim in form of action or utterance used as evidence to prove existence of fact
• “B” represents cognitive processes of person who made the representation, statement or claim (hearsay rule ought to operate where our use of evidence to prove fact C requires consideration of what happens at point B)
• “C” is the external fact
• “1-4”: Hearsay problems (four things):
(1) AMBIGUITY: ought to operate where it is not clear what the person meant by their statement, claim or
representation – language is inherently vague and something said can be open to various interpretations: in order to clarify, have to have the person who made the representation present to ask.
(2) INSINCERITY: where the person is lying or fabricating the account – involves an inquiry into cognitive process of person who made the statement
(3) ERRONEOUS MEMORY: an account of event provided by someone not giving evidence in court might be an account which is based on a faulty memory of the fact or event to which it relates (usually rectified by inquiring into the circumstances of the perception of that event, e.g. lighting, distance from event, intoxication – cannot ask this if not giving evidence at trial and only from a third person – don’t have this opportunity)
(4) FAULTY PERCEPTION:
Could also move straight from A to C: uses of statements/representations or some evidence of claims that don’t require us to think about cognitive processes of person who made the claim to evaluate the evidence
• e.g.: if issue at trial was identity, if witness says “I was in the room and I heard someone outside the door, and they said I just came back from pub and spend 15 minutes here then go home in half an hour…” → various claims/assertions of fact made in that statement but we’re not using it prove the truth of any of them.
• The only reason witness telling us that he heard those words uttered because it forms the basis for their recognition for the identity of the speaker (in room, heard someone, etc. – using as a basis for identification, don’t have to make any inquiry into the state of mind of the person who made representations, that they were made is enough. If this is the case then evidence who heard those words being uttered is not caught by hearsay rule.
COMMON LAW
DEFINITION (in common law): “An assertion other than one made by a person while giving oral evidence in the proceeding (i.e. made prior to trial) is inadmissible as evidence of any fact asserted” (Cross & Tapper on Evidence) → broad (does not include intention).
• EXPRESS ASSERTIONS: catches facts that are expressly asserted either by conduct or verbal assertion
• IMPLIED ASSERTIONS: catches implied assertions
° e.g. putting finger to lips make assertion of fact that want that person to be quiet but also implying that someone is making excessive noise which can be inferred from conduct.
INTENTION → catches facts that person intended to assert expressly or impliedly and those assertions that a person did not intend but can be inferred:
• EXAMPLE: trying to prove that it rained on a particular day:
° Have a witness who was in office looking out into street and saw a bus pull up and nuns get off and immediately put up umbrellas.
° Could this evidence be used to prove it was raining on that day or would it be caught by the hearsay rule?
° YES: would be caught by common law hearsay rule → using conduct of nuns to prove fact that it was raining.
° Didn’t intend to assert anything by their action of putting up the umbrella, were just trying to keep dry, but can infer from that action that it was raining → can infer an unintentional of fact and common law hearsay rule might exclude.
UNIFORM EVIDENCE LAW (s 59)
NARROWER than common law rule: will only apply where trying to use someone’s claim or previous representation to prove the existence of a fact that it can reasonably be supposed the person INTENDED to assert
• EXAMPLE: nuns get off a bus and all put on umbrellas – can reasonably suppose nuns were not intending to assert to anyone that it was raining – UEL would not exclude that evidence to prove it was raining Person must intend to assert fact → must determine what person might have intended to assert when making the representation
WHEN READING WITNESS STATEMENTS (triggers):
• Unless there is some good reason to think that witness is not going to be testifying in the trial read it as if it is a script of what they will say at trial – assume will be what they will say at trial (unless reason to think witness will not be testifying) → will become direct evidence when given in trial (of what witness perceived rather than evidence of previous representation)
• Should be alerted to possible application of hearsay rule whenever read REPORTED SPEECH, e.g. “I said”, “he said”, “she said” → even when witness gives evidence in the trial, these parts of statement will constitute evidence of previous representations (what someone had said prior to trial)
