LEAVE – S192 8
RULE 8
RELEVANCE – SS 55 + 56 9
RULE – STANDARD OF PROOF 9
RELEVANCE 9
FACTS IN ISSUE 9
CASES 10
HEARSAY RULE: DEFINITION OF HEARSAY – S 59 12
RULE 12
HEARSAY 12
PREVIOUS REPRESENTATION 12
MADE BY A PERSON 12
PURPOSE TEST 12
EXAMPLES – HEARSAY EVIDENCE 13
EXAMPLES – NON-‐HEARSAY EVIDENCE 13
HEARSAY EXCEPTIONS: 1ST H DEFINITION – S 62 15
RULE 15
(1) HEARSAY 15
PREVIOUS REPRESENTATION 15
MADE BY A PERSON 15
PURPOSE TEST 15
(2) FIRST-‐HAND HEARSAY 16
EXAMPLES 16
HEARSAY EXCEPTIONS: 1ST H -‐ S 65 ‘UNAVAILABLE’ 17
APPLICATION TO PROSECUTION 17
RULE 18
(A) FIRST-‐HAND HEARSAY + PERCEPTION 18
(B) UNAVAILABLE 18
(C) CIRCUMSTANCES IN S 65(2) 18
S65(2)(B) SHORTLY AFTER + FABRICATION + CIRCUMSTANCES 18
S65(2)(D) REPRESENTATION MADE AGAINST INTEREST 18
HEARSAY EXCEPTIONS: 1ST H -‐ S 65 ‘UNAVAILABLE’ 19
APPLICATION TO DEFENDANTS 19
RULE 19
NOTE 19
(A) FIRST-‐HAND HEARSAY 19
(B) UNAVAILABLE 20
HEARSAY EXCEPTIONS: 1ST H – S 67 NOTICE (S 65) 21
RULE 21
HEARSAY EXCEPTIONS: 1ST H -‐ S 66 ‘AVAILABLE’ 22
RULE ONE – MAKER 22
RULE TWO – OTHER PERSONS 22
(A) FIRST-‐HAND HEARSAY 22
(D) FRESH IN THE MEMORY 23
HEARSAY EXCEPTIONS: 1ST H -‐ S 66A ‘HEALTH ETC’ 24
RULE 24
‘KNOWLEDGE’ OR ‘STATE OF MIND’ 24
USE OF EVIDENCE 24
HEARSAY EXCEPTIONS: 2ND H -‐ S 69 BUSINESS RECORDS 25
RULE 25
S69(1) DOCUMENT 25
S69(2) PERSON 25
S69(4) EVENTS NOT OCCURRING 26
HEARSAY EXCEPTIONS: NON-‐HEARSAY -‐ S 60 27
RULE 27
CASES 27
EXAMPLES – NON-‐HEARSAY EVIDENCE 27
HEARSAY EXCEPTIONS: RELIABILITY WARNING – S 165A 29
RULE 29
GENERAL DISCRETION TO EXCLUDE EVIDENCE -‐ S 135 31
PRINCIPLES 31
PROBATIVE VALUE 31
DEFINITION 31
MEANING 31
(A) BE UNFAIRLY PREJUDICIAL TO A PARTY 31
DEFINITION 31
EXPRESSION 32
ALL FACTORS 32
‘OUTWEIGH’ 32
CROSS-‐EXAMINATION 32
PROCEDURAL CONSIDERATIONS 32
(B) BE MISLEADING OR CONFUSING 32
DEFINITION 32
(C) CAUSE OR RESULT IN UNDUE WASTE OF TIME 32
UNDUE 32
FAILURE TO DISCLOSE 32
CASES 33
EXCLUSION OF PREJUDICIAL EVIDENCE -‐ S 137 34
PRINCIPLES 34
PROBATIVE VALUE 34
DEFINITION 34
MEANING 34
CONTEMPORANEITY 34
BE UNFAIRLY PREJUDICIAL TO A PARTY 34
DEFINITION 34
EXPRESSION 35
ALL FACTORS 35
‘OUTWEIGH’ 35
CROSS-‐EXAMINATION 35
PROCEDURAL CONSIDERATIONS 35
CASES 35
GEN DISCRETION TO LIMIT USE OF EVIDENCE – S 136 37
PRINCIPLES 37
(A) BE UNFAIRLY PREJUDICIAL TO A PARTY 37
DEFINITION 37
EXPRESSION 37
ALL FACTORS 38
‘OUTWEIGH’ 38
CROSS-‐EXAMINATION 38
PROCEDURAL CONSIDERATIONS 38
(B) BE MISLEADING OR CONFUSING 38
DEFINITION 38
CASES 38
OTHER DISCRETIONS TO LIMIT USE OF EVIDENCE 40
FAIRNESS DISCRETION – S 90 40
PRINCIPLES 40
PUBLIC POLICY DISCRETION – S138 41
PRINCIPLES 41
COMPETENCY – SS 12 + 13 42
PRINCIPLES 42
COMPELLABILITY – S 14 43
COMPELLABILITY OF FAMILY MEMBERS – S 18 44
PRINCIPLES 44
CASES 44
COMPETENCY & CHILDREN – S 165A 46
PRINCIPLES 46
RULES 46
CROSS-‐EXAMINATION 46
CONTROL OF QUESTIONING – S 26 47
CALLING A WITNESS 47
‘THE WAY IN WHICH WITNESSES ARE TO BE QUESTIONED’ 47
CROSS-‐EXAMINATION 47
PARTIES MAY QUESTION WITNESSES 47
ORDER OF EXAMINATION 47
MANNER AND FORM OF QUESTIONING – S 29 48
‘NARRATIVE FORM’ 48
EXAMINATION-‐IN-‐CHIEF: LEADING QUESTIONS – S 37 49
EXAMPLES 49
(A) THE COURT GIVES LEAVE 49
REVIVING MEMORY IN COURT – S 32 50
WITNESS RECALL 50
PRINCIPLES 50
RULE 50
REVIVING MEMORY OUT OF COURT – S 34 51
PRINCIPLES 51
UNFAVOURABLE WITNESSES – S 38 52
PRINCIPLES 52
RULE 52
EFFECT OF PROVISION 53
RE-‐EXAMINATION – S 39 56
PRINCIPLES 56
RULE 56
ARISING OUT OF EVIDENCE 56
RE-‐OPENING THE PROSECUTION CASE 57
RULE 57
REOPENING 57
RULE 57
CROSS-‐EXAMINATION – S 42 58
RULE 58
APPLICATION: ATSI 58
CREDIBILITY – SS 102 + 101A 59
RULE 59
CREDIBILITY EVIDENCE 59
(A) EVIDENCE RELEVANT SOLELY TO CREDIBILITY 59
EXCEPTIONS 59
CREDIBILITY: CROSS EXAMINATION (XM) -‐ S 103 60
PRINCIPLES 60
RULE 60
CROSS-‐EXAMINATION EXCEPTION 60
‘SUBSTANTIALLY AFFECT’ 60
CREDIBILITY: XM + DEFENDANTS – S 104 61
RULE 61
(1) MATTERS IN S 104(4) + LEAVE 61
RULE 61
LEAVE 61
(2) MATTERS IN S 104(3) 62
CREDIBILITY: XM + REBUTTAL EVIDENCE – S 106 63
PRINCIPLES 63
RULE 63
PROCEDURAL REQUIREMENTS 63
LEAVE 63
CATEGORIES IN S 106(2) 64
(A) BIAS OR MOTIVE FOR BEING UNTRUTHFUL 64
(B) HAS BEEN CONVICTED OF AN OFFENCE 64
(C) PRIOR INCONSISTENT STATEMENT (PIS) 64
(D) IS, OR WAS, UNABLE TO BE AWARE OF MATTERS TO WHICH HIS OR HER EVIDENCE RELATES 65
(E) KNOWING OR RECKLESSLY MAKING A FALSE REPRESENTATION WHILE UNDER AN OBLIGATION IMPOSED BY LAW 65
CREDIBILITY: RE-‐EXAMINATION – S 108 66
PRINCIPLES 66
RULE 66
(A) PRIOR INCONSISTENT STATEMENT 66
(C) LEAVE 66
IMPROPER QUESTIONING – S 41 67
RULE 67
S41(1)(B) UNDULY ANNOYING, HARASSING, INTIMIDATING, OFFENSIVE, OPPRESSIVE, HUMILIATING OR REPETITIVE 67
‘UNDULY’ 67
‘OFFENSIVE’ 67
RULE IN BROWNE V DUNN – S 46 68
RULE 68
CO-‐ACCUSED XM OF DEFENDANTS – S 104 69
RULE 69
CO-‐ACCUSED CALL EXPERT CHARACTER EVD – S 111 70
PRINCIPLES 70
RIGHT TO SILENCE – SS 17 + 20 71
PRINCIPLES 71
THE DEFENDANT’S LIES 72
RULE 72
TENDENCY EVIDENCE – SS 97 + 101 73
RULE 73
IT IS LED FOR A TENDENCY PURPOSE 73
PROBATIVE VALUE: GENERAL 73
PROBATIVE VALUE: TENDENCY 74
FURTHER RULE: PROSECUTION AGAINST DEFENDANT 74
‘SUBSTANTIALLY OUTWEIGHS’ 74
COINCIDENCE EVIDENCE – SS 98 + 101 75
RULE 75
IT IS LED FOR A COINCIDENCE PURPOSE 75
SIMILARITIES + IMPROBABLE 76
PROBATIVE VALUE: GENERAL 76
PROBATIVE VALUE: COINCIDENCE 76
FURTHER RULE: PROSECUTION AGAINST DEFENDANT 76
‘SUBSTANTIALLY OUTWEIGHS’ 76
T&C EVD ADDUCED FOR ANOTHER PURPOSE – S 95 77
PRINCIPLES 77
RULES 77
RELATIONSHIP EVIDENCE 77
CONTEXT EVIDENCE 77
TRANSACTION EVIDENCE 77
CHARACTER EVIDENCE – S 110 78
DEFINING CHARACTER 78
PRINCIPLES -‐ S110(1) 78
PRINCIPLES– S110(2) + (3) 78
RULE– S110(2) + (3) 79
GOOD CHARACTER 79
OPINION EVIDENCE – S 76 80
PRINCIPLES 80
OPINION EXCEPTION: LAY OPINION -‐ S 78 81
PRINCIPLES 81
RULE 81
(A) BASED ON WHAT A PERSON SAW, HEARD, PERCEIVED 81
(B) NECESSARY TO OBTAIN ADEQUATE ACCOUNT/UNDERSTANDING 81
INADMISSIBILITY 81
OPINION EXCEPTION: EXPERT OPINION -‐ S 79 82
PRINCIPLES 82
RULE 82
(A) SPECIALISED KNOWLEDGE 82
(B) WHOLLY OR SUBSTANTIALLY BASED ON EXPERT KNOWLEDGE 82
EXAMPLE 82
NOTES 82
EXPERT EVIDENCE ABOUT FACTS 83
OPINION EVIDENCE: ULTIMATE ISSUE/COMMON K – S 80 83
RULE 83
HISTORY 83
OPINION EXCEPTION: ATSI -‐ S78A 83
PRINCIPLES 83
IDENTIFICATION (ID) EVIDENCE 84
PRINCIPLES 84
VISUAL ID EVIDENCE – S114 85
EFFECT 86
VISUAL IDENTIFICATION EVIDENCE 86
REQUIREMENTS S114(2) 86
S114(4) UNFAIR 86
PICTURE ID EVIDENCE – S115 87
PICTURE IDENTIFICATION EVIDENCE 88
NOT ADMISSIBLE 88
DEFENDANT IN CUSTODY 88
WARNINGS – S115(7) 88
ID EVIDENCE: S116 WARNING THE JURY 89
RULE 89
CONTENT 89
WARNINGS: S 165B DELAY IN PROSECUTION 90
CIRCUMSTANCE 90
RULE 90
WARNINGS: S 165 RELIABILITY 91
KEY FEATURES S165 91
PROSECUTORS DISCLOSURE – S142/144 92
RELEVANT LAW/RULES 92
DEFENCE DISCLOSURE – S143 93
RELEVANT LAW/RULES 93
BURDEN OF PROOF –S141 94
CONDO V R 94
ADMISSIBILITY OF EVIDENCE: STANDARD OF PROOF -‐ 142 94
RULE 94
Hearsay Rule: Definition of Hearsay – s 59
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.
Rule
The general rule is that hearsay evidence is not admissible: s59UEA
•
Hearsay
For this rule to apply, the evidence must constitute ‘hearsay’ in accordance with the definition in s59UEA:
•
o There must be:
§ A previous representation
§ Made by a person
§ Containing what can reasonably be supposed to be an intentional assertion of fact; and
§ The representation must be adduced to prove the actual existence of that fact.
Previous Representation
Dictionary UEA
"previous representation" means a representation made otherwise than in the course of giving evidence in
•
the proceeding in which evidence of the representation is sought to be adduced.
"representation" includes:
•
(a) an express or implied representation (whether oral or in writing), or (b) a representation to be inferred from conduct, or
(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.
A ‘representation’ can include silence or non-‐action where it can be inferred that the person by their silence
•
or non-‐action was making a representation of fact, regardless of whether they intended it: R v Rose (2002)
Made by a person
A representation will not be ‘made by a person’ where it is produced by a machine without human input:
• Hansen Beverage Co v Bickfords (2008)
Pushing a button may amount to human input: Hansen Beverage Co v Bickfords (2008)
•
Purpose Test
A previous representation will only be hearsay where:
•
o It can be reasonably supposed that a maker of a representation intended to assert a fact; and o It is adduced to prove the existence of that fact.
If a previous representation is relevant in some other way and relied upon according to that relevance it will
•
not be hearsay (see s60, later).
What can it reasonably be supposed the maker of the representation intended to assert? (objective test) S 59 applies to intended, implied assertions of fact: O’Grady v R (2000)
•
o Eg, X shoots person, X tells Y ‘You know I couldn’t do something like that’, X intends to imply that his shooting of the deceased was not the result of a voluntary act.
What is the previous representation being adduced to prove?
That a representation was made – NON HEARSAY EVIDENCE
•
The truth of the representation – HEARSAY EVIDENCE
•
Examples – Hearsay evidence
In a criminal case, evidence of a third party confession is hearsay if adduced to prove that the person who
• made the confession committed the crime rather than the accused: Baker v The Queen (2012)
Evidence of previous representations made by the complainant in a sexual offences case to her friends about
• what had happened to her and who had done it, is hearsay if adduced to prove the details of the offence and the identity of the perpetrator: Papakosmas v R (1999)
In a criminal case where the accused is charged with aggravated assault, evidence that he told an
•
acquaintance shortly after the offence was committed that he “had just done a job and fired two shots,” is hearsay if tendered by the prosecution to prove the identity of the person who committed the offence: Lee (1998)
In a criminal case involving the theft of motor vehicles, records from the factory where the cars were
•
manufactured of identification numbers placed on the cars at the time of their manufacture, is hearsay if adduced to prove that the accused had falsified the registration details of cars he was offering for sale : Myers v DPP (1965)
In a case where the accused is charged with making a false declaration to customs officials about the country
•
of origin of the goods he had imported, evidence of labels on the goods’ packaging identifying it as the produce of a country different from that declared by the accused is hearsay if adduced to prove that the country of origin is that on the labels: Patel v Comptroller of Customs (1965)
In a murder case where the accused raised the defence of diminished responsibility at trial, evidence from
•
the accused’s psychiatrist that the accused told her in the weeks before the offence was committed that he was hearing voices in his head instructing him to attack the deceased is hearsay if adduced to prove that the accused was suffering from auditory hallucinations that prompted him to commit murder: R v Welsh (1996)
Examples – Non-hearsay evidence
It may be established simply that A said something to B: Re van Beelan (1974)
From this it may be inferred, depending on other testimony, and apart altogether from what was said, that,
•
o A had the opportunity of imparting some intelligence to B;
o that, if A spoke when he was near B, B was aware of A's presence;
o that, if the occasion was one of several, A and B were acquainted;
o that, if the tone of the voice was detectable, A was cold and distant to B, was quarrelling with B, or was amused by something which he mentioned to B.
In those, and other like cases, the suggested inferences can be drawn without resorting to the wording of
•
the statement.
It may be proved that A said something to B and what that something was: Re van Beelan (1974) By this it may be disclosed that the remarks were, or formed part of, a relevant fact:
•
o that A was selling something to B;
o that A was showing the way to B;
o that A was ordering B to carry out a certain task;
o that A was carrying on a certain sort of business;
o that A was acting toward B as one would act who was occupier of the premises where the statement was made, or as one would act towards another when both were in a gaming house or a brothel.
In such cases as these, the words spoken form an integral part of a complex fact.
•
It may be proved that A said something to B and what that something was in circumstances from which it is possible to infer, in all the circumstances: Re van Beelan (1974)
o that A was of unsound mind;
o that A and B were likely to be husband and wife, or lovers, or deadly enemies or close business associates;
o that A's or B's state of mind, or of knowledge, or of feeling, was thus and thus depending on what could be inferred from what was said. Subramaniam v Public Prosecutor.
In the circumstances referred to, and in comparable circumstances, what is said is proved, not to establish
• the truth of what was averred, but as material from which another fact may be inferred. It is the nature and quality of what was said that invites attention, not the purported testimonial operation of it:
Transactional words and words having operative legal affect: R v Suteski
Representations that create contracts, trusts, deed or wills are not hearsay. Essentially, such representations
•
have no evidentiary value as assertions of fact. Their relevance lies in the fact that they were made.
Representations whose making is relevant to their makers’ credibility: Adam v R
Prior representations that are inconsistent with a witness’s in court testimony might be adduced to show
•
simply that the witness has given different accounts of events on different occasions and might therefore be considered to be an unreliable witness.
Evidence of previous representations to show the basis for an expert’s opinion: Welsh v R
Where experts testify they will almost always need to explain the foundation of their opinions.
•
Very often this will consist of matters that they have been told by other people.
•
For example medical experts may recount what their patients have told them about their symptoms
•
When adduced to show the basis of expert opinions, the previous representations are not being relied upon
•
as hearsay, but rather as original evidence.
Of course, such representations may also be relevant as hearsay evidence where they are relied upon to
• prove that the matters recounted by patients to their medical practitioners actually occurred.
Evidence of representations to establish a person’s state of mind: Re van Beelan
It covers representations made to a person that might produce an affect on their state of mind and
• statements made by a person from whose making their state of mind and feelings might be inferred.
So, for example, evidence that an accused had been threatened with physical harm if he or she did not
• participate in a criminal enterprise might be adduced to show that he or she was acting under duress in committing the offence, see for example Subramaniam v Public Prosecutor.
Evidence of a conversation about painting a window between husband and wife was used to show that the
• wife went into the room with the window without a struggle: Hendry (1985)
Hearsay Exceptions: 1
stH Definition – s 62
62 Restriction to “first-‐hand” hearsay
(1) A reference in this Division (other than in subsection (2)) to a previous representation is a reference to a previous representation that was made by a person who had personal knowledge of an asserted fact.
(2) A person has personal knowledge of the asserted fact if his or her knowledge of the fact was, or might reasonably be supposed to have been, based on something that the person saw, heard or otherwise perceived, other than a previous representation made by another person about the fact.
(3) For the purposes of section 66A, a person has personal knowledge of the asserted fact if it is a fact about the person’s health, feelings, sensations, intention, knowledge or state of mind at the time the representation referred to in that section was made.
Rule
First-‐hand hearsay is:
•
1) Hearsay
2) Where the ‘previous representation was made by a person who had personal knowledge of an asserted fact’: s 62(1)
§ A person will have personal knowledge of an asserted fact where:
• His or her knowledge of the fact was, or might reasonably be supposed to have been based on something that the person saw, heard or otherwise perceived: s 62(2)
(1) Hearsay
Evidence will constitute ‘hearsay’ where there is: s59UEA
•
o A previous representation o Made by a person
o Containing what can reasonably be supposed to be an intentional assertion of fact; and o The representation must be adduced to prove the actual existence of that fact.
Previous Representation
Dictionary UEA
"previous representation" means a representation made otherwise than in the course of giving evidence in
•
the proceeding in which evidence of the representation is sought to be adduced.
"representation" includes:
•
(a) an express or implied representation (whether oral or in writing), or (b) a representation to be inferred from conduct, or
(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.
A ‘representation’ can include silence or non-‐action where it can be inferred that the person by their silence
•
or non-‐action was making a representation of fact, regardless of whether they intended it: R v Rose (2002)
Made by a person
A representation will not be ‘made by a person’ where it is produced by a machine without human input:
•
Hansen Beverage Co v Bickfords (2008)
Pushing a button may amount to human input: Hansen Beverage Co v Bickfords (2008)
•
Purpose Test
A previous representation will only be hearsay where:
•
o It can be reasonably supposed that a maker of a representation intended to assert a fact; and o It is adduced to prove the existence of that fact.
If a previous representation is relevant in some other way and relied upon according to that relevance it will
•
not be hearsay (see s60, later).
What can it reasonably be supposed the maker of the representation intended to assert? (objective test) S 59 applies to intended, implied assertions of fact: O’Grady v R (2000)
•
o Eg, X shoots person, X tells Y ‘You know I couldn’t do something like that’, X intends to imply that his shooting of the deceased was not the result of a voluntary act.
What is the previous representation being adduced to prove?
That a representation was made – NON HEARSAY EVIDENCE The truth of the representation – HEARSAY EVIDENCE •
(2) First-Hand Hearsay
Where the ‘previous representation was made by a person who had personal knowledge of an asserted
•
fact’: s 62(1)
o A person will have personal knowledge of an asserted fact where:
§ His or her knowledge of the fact was, or might reasonably be supposed to have been based on something that the person saw, heard or otherwise perceived: s 62(2)
Examples
Evidence of a previous representation by A that fact X occurred, where A had personal knowledge of the
•
fact, is first-‐hand hearsay that X occurred.
Evidence of a previous representation by A that B said X occurred (where B had personal knowledge of the
•
fact) is second hand hearsay.
If B told A he stabbed the pony, A telling the court about B’s previous representation is first hand hearsay
• that B stabbed the pony because B had personal knowledge that he stabbed the pony.
o If A told the police what B said, and the police told the court, what the police say in court is second hand hearsay that B stabbed the pony, because A did not have personal knowledge that B stabbed the pony.
