WEEK 4: HEARSAY EVIDENCE
Tips to identify hearsay evidence
• Was the representations a previous representation i.e. out of court?
• Was the representation made by a person?
• Does the representation assert a fact?
• Is the evidence of the representation being used to prove the asserted fact in it?
• Can it be supposed that the fact was intended to be asserted by the person?
If the answers to the above are all yes, the evidence is hearsay.
ELEMENTS
SECT 59 EA: Hearsay Evidence Rule
1. Evidence of a previous representation;
2. Used to prove the existence of a fact;
3. It can reasonably supposed that the person intended to assert that fact by the representation.
ELEMENT 1: Evidence of a previous representation
Schedule 2 Part 2 EA: “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.
Thus a previous representation:
• Includes out of court representations.
• Includes representations made in other proceedings.
• Can be in documentary or oral form.
ELEMENT 2: Used to prove the existence of a fact
This requires distinguishing between evidence tendered to prove that something was said and evidence tendered to prove that what was said is true. To fall under the definition of hearsay, the evidence must be tendered to prove the existence of a fact, namely to prove the content of the statement.
Subramaniam v Public Prosecutor [1956] 1 WLR 965
FACTS: D accused and sentenced to death for carrying ammunition in the Malayan jungle. D argued he acted under duress claiming he was captured by terrorists and threatened to kill him if he failed to obey the orders. As part of this defence he wanted to testify about these conversations he had with the terrorist.
PC: evidence of these conversations would be hearsay only if the purpose of submitting the evidence was to prove the content of the statements. Here, evidence about these conversations was not tendered to prove the assert facts i.e. that the terrorists intended to kill the accused, but simply that the statements were made, meaning that the terrorists threatened the accused. By testifying that the threats were made, the accused simply testified by saying what he heard with his own ears.
ELEMENT 3: It can reasonably supposed that the person intended to assert that fact by the representation.
Under s 59(2A) EA, 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.
Pre 2008 amendments
• Hearsay evidence included express and implied assertions.
Walton v The Queen (1989) 166 CLR 283
FACTS: W accused of murdering his wife. P argued D made arrangements to meet with his wife on the day she was killed. To prove this asserted fact, P introduced evidence of a telephone
conversation between the victim and someone else with whom she was planning to meet. R, the witness who testified about the content of this telephone conversation, was standing next to the victim when she was on the phone and was able to hear what the victim said. She overheard the victim making arrangements to meet that person at the place she was last seen. R told the court that the victim turned to her son and told him, ‘Daddy is on the phone.’ The Child then took the phone and said, ‘Hello Daddy’.
TJ HELD:
• The statement ‘Daddy is on the phone’ was deemed hearsay but admitted as an exception to the hearsay rule.
• The statement ‘Hello Daddy’ was also hearsay but admitted by the TJ after directing the jury that both statements are not admissible as prove of their content.
HCA HELD:
• ‘Hello Daddy’ was inadmissible as it was tendered to prove its content i.e. the identity of the caller. Nonetheless, as the TJ did warn the jury that this evidence cannot be used to prove the identity of the caller, the appeal by W was dismissed.
Post 2008 amendments
In Walton, the child did not explicitly say the person on the other side of the line was his father. It was only implied from what he said. This implication of the accused as the caller was therefore unintentional. As under common law there was no distinction between intentional and
unintentional assertions, the court held this statement should be excluded under the hearsay rule.
The ALRC was sceptical about the need to exclude unintended implied assertions and recognised that in this case, the implied assertion, although hearsay, was not necessarily unreliable. The HCA in Walton even noted the child’s assertion to be reliable as generally implied unintentional assertions are typically more reliable as it is not likely that they were concocted. If you intend to lie it’s more liking that intentional assertions will be made rather than by implied gestures or statements. For is reason the ALRC decided the limit the hearsay rule to intentional representations only. Accordingly, s 59 EA doesn’t apply to unintentional assertions.
