TOPIC 5: THE HEARSAY RULE
45
TOPIC 5: THE HEARSAY RULE 1. Is the evidence relevant to the facts in issue at the trial? 2. Does the evidence come within the scope of the hearsay rule? • If so, it is prima facie inadmissible. 3. Is the evidence, though hearsay, nevertheless admissible because it comes within the scope of 1 of the many exceptions to the hearsay rule?
The rule against hearsay evidence •
It is basically an exclusionary rule that relates to out-of-court statements made by someone who might not be called as a witness.
•
The rule against hearsay comes from ‘the best evidence rule’, an old common law principle that says that the best evidence is ‘original evidence.’ Thus, the court will prefer the evidence of an eye-witness giving their account of the facts from their memory under oath in the witness box. The Rule against hearsay therefore deems hearsay evidence prima facie inadmissible.
•
•
Section 59: The hearsay rule—exclusion of hearsay evidence (1)
(2)
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. Such a fact is in this Part referred to as an asserted fact
What is ‘hearsay evidence’? Hearsay evidence has 2 elements: 1. A previous representation, and 2. Tendered to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation
46 First-hand hearsay: • •
The person who makes a representation asserting a fact has personal knowledge of the fact. Example: A school burns down. Michael sees it. Michael says: “the school burned down”.
Second-hand hearsay: •
•
•
The person who makes a representation asserting a fact does not have personal knowledge of the fact – they have been told by someone who did have personal knowledge. Example: A school burns down. Michael sees it. Michael says to his friend James: “the school burned down.” (This is first-hand hearsay.) James then says to his friend Mark: “the school burned down.” (This is second-hand hearsay.) Example: Matthew says: “The BBC is reporting that Robin Williams died.” Is this first-hand or second-hand hearsay? (Answer: this is second-hand hearsay, because the BBC reporter presumably does not have personal knowledge that Robin Williams has died, they heard the report from someone else.)
Tip: Conversations contain hearsay If you don’t find the phrases previous representation or out of court statement particularly obvious, you can look for a conversation between 2 or more potential witnesses that takes place outside of the courtroom about what one of the witnessed perceived/observed. Any such conversation will typically give rise to hearsay statements (or what the act calls ‘previous representations’). This will become clearer when we look at numerous problem questions on hearsay. Example: P inspects W’s car and finds that the handbrake is defective. P tells W that the handbrake on W's car does not work. P appears as a witness in a negligence action and testifies that he inspected the car and found that the handbrake was defective. Observation: P inspects the car and detects a defective handbrake Conversation: P tells W that the handbrake is defective Neither P nor W can testify about the conversation for the purpose of proving the handbrake is defective. This will not be permitted unless an exception to the hearsay rule applies. The exceptions however can be quite useful and essential. Consider for example what would happen if P died before the trial. It may be that the only way to prove that the handbrake was defective would be to call W to give evidence of what P told him. It would not be as good as P’s direct oral evidence, however, may be the next best thing available. Looking for a conversation or statement that is heard by someone will help you to identify hearsay statements in a problem question more easily.
47 Rationale and purpose of the rule •
•
Best evidence is ‘original evidence’ o (I.e. eyewitness’s account of what he/she observed/perceived/experienced given from memory under oath in witness box) Because: o Witness has sworn/promised to tell truth under threat of prosecution for perjury; and o Witness’s truthfulness can be tested through crossexamination and observation of witness’s demeanour
Teper v R [1952] • Rule against admission of hearsay is fundamental - it's not the best evidence • Truthfulness & accuracy cannot be tested by cross examination • Thus, original (witness testimony) evidence is preferred • Example of Hearsay v Original evidence o Car accident, driver of car on trial for negligence o Alice (pedestrian) & Boris (did not see accident) o Alice tells Boris the light was red when the car went through o Police arrive, Alice makes statement o At trial, Alice is asked about light ! And from memory, provides that it was red ! Truthfulness of this can be tested o Whether Boris' evidence can be used? ! If used to prove what Alice said to him - yes, as it is original ! If used to prove that the car actually went through the light - no, as it is hearsay • This is because Boris is effectively provided someone else's statement as fact, not his own •
Although the Evidence Act retains an exclusionary rule that resembles the common law, the ALRC was determined to demystify and simplify the common law approach to hearsay under the Act
•
Before the introduction of the Commonwealth Evidence Act the ALRC said that: “The common law hearsay rule and its judge-made exceptions are capable of excluding probative evidence and are overly complex, technical, artificial and replete with anomalies.”
48 •
The choice was made to retain an exclusionary rule but modify the application of the common law rule and the exceptions that had been created.
•
In its most recent report, the ALRC stated that the retention of an exclusionary rule for hearsay evidence was justified on the following grounds: o out of court statements are usually not on oath; o there is usually an absence of testing by cross-examination; o the evidence might not be the best evidence; o there are dangers of inaccuracy in repetition; o there is a risk of fabrication; o to admit hearsay evidence can add to the time and cost of litigation.
•
Whilst the oral evidence of an observational witness is always better than the evidence of a hearsay witness, it is not always realistic to expect that the observational witness will be available. If they are not available, then it follows that the testimony of a hearsay witness is the best available evidence. It then becomes a question of whether the hearsay testimony, which is the best available evidence, is also reliable.
•
Goal of the Evidence Act was to change the common law and relax the hearsay rule and exceptions to the rule, so that evidence that was both the best available and reliable was admissible.
•
However, the ALRC still wanted to maintain some safeguards: in particular, safeguards with respect to hearsay evidence in criminal trials
Criticisms of the rule •
• • •
Witness’s report at time of event may be more reliable than memory of event some time later; o E.G. An account of what a witness says at the time, versus their recollection of these events a number of months later Even honest witness’s evidence can be distorted under crossexamination; Assessing a witness’s truthfulness based on their demeanour is flawed; If eyewitness is unavailable, hearsay may be best available evidence
49
IDENTIFYING HEARSAY EVIDENCE 1. Is the evidence a previous representation in the nature of an assertion made by a person? a. Was the rep made out of court? b. Was the rep made by a person? c. Does the rep assert a fact (i.e. orally, in writing, by conduct, expressly impliedly?) 2. What is the purpose of the evidence (what fact is the party seeking to prove by it? This is the same as asking - what relevance has the rep in the case for the party who is seeking to use it? a. Is it relevant to prove the fact asserted in it? b. Was that fact intended to be asserted by the person who made the rep? IF ANSWER TO ALL THESE IS YES - EVIDENCE IS HEARSAY
If representation is relevant to prove facts asserted in it, and the person intended to make such an assertion, this representation is hearsay
The hearsay rule •
It is basically an exclusionary rule that relates to out-of-court statements made by someone who might not be called as a witness.
S 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
1. ‘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
•
Expressed or implied written or oral reps, reps inferred from conduct (silence) reps not intended to be communicated, reps not communicated
50 2. Determining whether person intended to assert fact 2nd element = to prove a fact that was intended to be asserted by the representation o This distinguishes hearsay from original evidence • Objective test used to determine whether person intended to assert fact through implied representation (i.e. do not examine what speaker actually intended) Section 59(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 •
a) Implied hearsay and the intention of the maker of the representation •
•
Implied hearsay under section 59 = o Previous representation that is being used to prove a fact intended to be asserted by it ! SO only hearsay if the maker of the representation INTENDED to assert the fact in it Implied hearsay under s 59 differs from CL - previous implied representation could be hearsay regardless of whether maker of representation intended to make assertion implicit in it o Previously could be hearsay either way, even if maker did not intend to assert the existence of facts THUS evidence of unintended implied assertion is now admissible to prove the truth of the assertion (as it is no longer recognised as hearsay)
Walton v R: - COMMON LAW CASE WHICH ILLUSTRATES THE FORMER POSITION THAT IS NO LONGER FOLLOWED • • •
• • •
•
Walton was convicted of murdering his former wife P attempted to prove W had made arrangements to meet his wife on the day she was killed. P introduced evidence of a telephone convo that was overheard by a witness (this witness could only hear 1 side of the convo). 1st spoken by the victim: “Daddy is on the phone” 2nd spoken by the son: “Hello Daddy” Both hearsay statements were intended to be used to prove that the person on the other end of the telephone conversation was Walton, the father of the child. However, since the child did not explicitly say that that the person on the end of the phone was his father, it was implied
51
•
from what the child said that the person on the other end of the phone was his father. This implication was unintentional. The evidence of the telephone conversation was characterised as an implied out of court statement used to prove the truth of the implication, and was excluded. o NOW THIS WOULD BE ADMISSIBLE AND NOT CONSIDERED AS HEARSAY EVIDENCE Therefore, s 59 only applies to intentional representations or assertions, and not to unintentional implied representations or assertions.
•
By placing unintended assertions outside the proposed hearsay rule, the ALRC envisaged that evidence of unintended assertions could be admissible as evidence of the truth of those assertions.
•
E.G Walton v R, evidence that the child answered the telephone with ‘Hello Daddy’ would generally not be hearsay as defined in s 59 when used to prove the identity of the caller, because the child did not intentionally assert that it was his father on the phone.
R v Benz [1989] - another example like above • Judges disagreement highlighted lack of clarity in regard to Common Law implied hearsay • On morning of day that body was found, guy driving saw a stopped car, with boot open & 2 women standing looking into water (near where body was later discovered) • The smaller of the 2 said to him: "it's alright, my mother's just feeling sick" o HC determined this statement not admissible on hearsay grounds o It contained an implied assertion (ie. that this is my mother) • Prosecution wanted to use this to establish that the 2 women on the bridge were mother & daughter, as Benz & mother were, and thus that it was Benz and mother that he saw & spoke with • Under Section 59: o Court would not have needed to ask what the woman actually intended o Rather, if the woman could reasonably be supposed to have intended to assert the fact that the person was her mother o If decided today, the previous representation containing the implied assertion MAY be able to be used to prove the fact impliedly asserted by it, assuming the maker of the statement did not intend to make such an assertion of act (so not hearsay)
52 b) Express previous representation The intention requirement in s 59 was proposed for the purpose of resolving the admissibility of implied hearsay (above) - however the requirement has signifance even where previous reps are an express one • Express previous representation = still need to determine objectively what maker of representation intended to assert by it R v Lee • Cailan (witness) made a statement that he heard Lee (the defendant) say "I fired 2 shots" • This was an express representation by Cailan that Lee said something • In the witness box, however, Cailan denied having heard Lee say this • Thus the need arose as to whether the previous representation could be admitted • High Court explained that section 59 requires the court to consider why it sought to lead evidence of something said or done out of court o What is the party seeking to adduce the representation trying to prove? ! Are they trying to prove the existence of a fact that the person making representation intended to assert? ! Enquiry is to what the person making the assertion intended to assert by it • High Court held that previous rep by Cailan was not intended to assert as a fact that 2 shots had been fired o As he had no way of knowing this fact - all he tried to assert was that Lee told him he had fired the shots and that he believed this • Principle: Express representation is only hearsay if it is relevant to prove the existence of a fact asserted in it where the maker of the representation intended to assert the fact •
TOPIC 5: THE HEARSAY RULE 1. Is the evidence relevant to the facts in issue at the trial? 2. Does the evidence come within the scope of the hearsay rule? • If so, it is prima facie inadmissible. 3. Is the evidence, though hearsay, nevertheless admissible because it comes within the scope of 1 of the many exceptions to the hearsay rule?
The rule against hearsay evidence •
It is basically an exclusionary rule that relates to out-of-court statements made by someone who might not be called as a witness.
•
The rule against hearsay comes from ‘the best evidence rule’, an old common law principle that says that the best evidence is ‘original evidence.’ Thus, the court will prefer the evidence of an eye-witness giving their account of the facts from their memory under oath in the witness box. The Rule against hearsay therefore deems hearsay evidence prima facie inadmissible.
•
•
Section 59: The hearsay rule—exclusion of hearsay evidence (1)
(2)
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. Such a fact is in this Part referred to as an asserted fact
What is ‘hearsay evidence’? Hearsay evidence has 2 elements: 1. A previous representation, and 2. Tendered to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation
46 First-hand hearsay: • •
The person who makes a representation asserting a fact has personal knowledge of the fact. Example: A school burns down. Michael sees it. Michael says: “the school burned down”.
Second-hand hearsay: •
•
•
The person who makes a representation asserting a fact does not have personal knowledge of the fact – they have been told by someone who did have personal knowledge. Example: A school burns down. Michael sees it. Michael says to his friend James: “the school burned down.” (This is first-hand hearsay.) James then says to his friend Mark: “the school burned down.” (This is second-hand hearsay.) Example: Matthew says: “The BBC is reporting that Robin Williams died.” Is this first-hand or second-hand hearsay? (Answer: this is second-hand hearsay, because the BBC reporter presumably does not have personal knowledge that Robin Williams has died, they heard the report from someone else.)
Tip: Conversations contain hearsay If you don’t find the phrases previous representation or out of court statement particularly obvious, you can look for a conversation between 2 or more potential witnesses that takes place outside of the courtroom about what one of the witnessed perceived/observed. Any such conversation will typically give rise to hearsay statements (or what the act calls ‘previous representations’). This will become clearer when we look at numerous problem questions on hearsay. Example: P inspects W’s car and finds that the handbrake is defective. P tells W that the handbrake on W's car does not work. P appears as a witness in a negligence action and testifies that he inspected the car and found that the handbrake was defective. Observation: P inspects the car and detects a defective handbrake Conversation: P tells W that the handbrake is defective Neither P nor W can testify about the conversation for the purpose of proving the handbrake is defective. This will not be permitted unless an exception to the hearsay rule applies. The exceptions however can be quite useful and essential. Consider for example what would happen if P died before the trial. It may be that the only way to prove that the handbrake was defective would be to call W to give evidence of what P told him. It would not be as good as P’s direct oral evidence, however, may be the next best thing available. Looking for a conversation or statement that is heard by someone will help you to identify hearsay statements in a problem question more easily.
47 Rationale and purpose of the rule •
•
Best evidence is ‘original evidence’ o (I.e. eyewitness’s account of what he/she observed/perceived/experienced given from memory under oath in witness box) Because: o Witness has sworn/promised to tell truth under threat of prosecution for perjury; and o Witness’s truthfulness can be tested through crossexamination and observation of witness’s demeanour
Teper v R [1952] • Rule against admission of hearsay is fundamental - it's not the best evidence • Truthfulness & accuracy cannot be tested by cross examination • Thus, original (witness testimony) evidence is preferred • Example of Hearsay v Original evidence o Car accident, driver of car on trial for negligence o Alice (pedestrian) & Boris (did not see accident) o Alice tells Boris the light was red when the car went through o Police arrive, Alice makes statement o At trial, Alice is asked about light ! And from memory, provides that it was red ! Truthfulness of this can be tested o Whether Boris' evidence can be used? ! If used to prove what Alice said to him - yes, as it is original ! If used to prove that the car actually went through the light - no, as it is hearsay • This is because Boris is effectively provided someone else's statement as fact, not his own •
Although the Evidence Act retains an exclusionary rule that resembles the common law, the ALRC was determined to demystify and simplify the common law approach to hearsay under the Act
•
Before the introduction of the Commonwealth Evidence Act the ALRC said that: “The common law hearsay rule and its judge-made exceptions are capable of excluding probative evidence and are overly complex, technical, artificial and replete with anomalies.”
48 •
The choice was made to retain an exclusionary rule but modify the application of the common law rule and the exceptions that had been created.
•
In its most recent report, the ALRC stated that the retention of an exclusionary rule for hearsay evidence was justified on the following grounds: o out of court statements are usually not on oath; o there is usually an absence of testing by cross-examination; o the evidence might not be the best evidence; o there are dangers of inaccuracy in repetition; o there is a risk of fabrication; o to admit hearsay evidence can add to the time and cost of litigation.
•
Whilst the oral evidence of an observational witness is always better than the evidence of a hearsay witness, it is not always realistic to expect that the observational witness will be available. If they are not available, then it follows that the testimony of a hearsay witness is the best available evidence. It then becomes a question of whether the hearsay testimony, which is the best available evidence, is also reliable.
•
Goal of the Evidence Act was to change the common law and relax the hearsay rule and exceptions to the rule, so that evidence that was both the best available and reliable was admissible.
•
However, the ALRC still wanted to maintain some safeguards: in particular, safeguards with respect to hearsay evidence in criminal trials
Criticisms of the rule •
• • •
Witness’s report at time of event may be more reliable than memory of event some time later; o E.G. An account of what a witness says at the time, versus their recollection of these events a number of months later Even honest witness’s evidence can be distorted under crossexamination; Assessing a witness’s truthfulness based on their demeanour is flawed; If eyewitness is unavailable, hearsay may be best available evidence
49
IDENTIFYING HEARSAY EVIDENCE 1. Is the evidence a previous representation in the nature of an assertion made by a person? a. Was the rep made out of court? b. Was the rep made by a person? c. Does the rep assert a fact (i.e. orally, in writing, by conduct, expressly impliedly?) 2. What is the purpose of the evidence (what fact is the party seeking to prove by it? This is the same as asking - what relevance has the rep in the case for the party who is seeking to use it? a. Is it relevant to prove the fact asserted in it? b. Was that fact intended to be asserted by the person who made the rep? IF ANSWER TO ALL THESE IS YES - EVIDENCE IS HEARSAY
If representation is relevant to prove facts asserted in it, and the person intended to make such an assertion, this representation is hearsay
The hearsay rule •
It is basically an exclusionary rule that relates to out-of-court statements made by someone who might not be called as a witness.
S 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
1. ‘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
•
Expressed or implied written or oral reps, reps inferred from conduct (silence) reps not intended to be communicated, reps not communicated
50 2. Determining whether person intended to assert fact 2nd element = to prove a fact that was intended to be asserted by the representation o This distinguishes hearsay from original evidence • Objective test used to determine whether person intended to assert fact through implied representation (i.e. do not examine what speaker actually intended) Section 59(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 •
a) Implied hearsay and the intention of the maker of the representation •
•
Implied hearsay under section 59 = o Previous representation that is being used to prove a fact intended to be asserted by it ! SO only hearsay if the maker of the representation INTENDED to assert the fact in it Implied hearsay under s 59 differs from CL - previous implied representation could be hearsay regardless of whether maker of representation intended to make assertion implicit in it o Previously could be hearsay either way, even if maker did not intend to assert the existence of facts THUS evidence of unintended implied assertion is now admissible to prove the truth of the assertion (as it is no longer recognised as hearsay)
Walton v R: - COMMON LAW CASE WHICH ILLUSTRATES THE FORMER POSITION THAT IS NO LONGER FOLLOWED • • •
• • •
•
Walton was convicted of murdering his former wife P attempted to prove W had made arrangements to meet his wife on the day she was killed. P introduced evidence of a telephone convo that was overheard by a witness (this witness could only hear 1 side of the convo). 1st spoken by the victim: “Daddy is on the phone” 2nd spoken by the son: “Hello Daddy” Both hearsay statements were intended to be used to prove that the person on the other end of the telephone conversation was Walton, the father of the child. However, since the child did not explicitly say that that the person on the end of the phone was his father, it was implied
51
•
from what the child said that the person on the other end of the phone was his father. This implication was unintentional. The evidence of the telephone conversation was characterised as an implied out of court statement used to prove the truth of the implication, and was excluded. o NOW THIS WOULD BE ADMISSIBLE AND NOT CONSIDERED AS HEARSAY EVIDENCE Therefore, s 59 only applies to intentional representations or assertions, and not to unintentional implied representations or assertions.
•
By placing unintended assertions outside the proposed hearsay rule, the ALRC envisaged that evidence of unintended assertions could be admissible as evidence of the truth of those assertions.
•
E.G Walton v R, evidence that the child answered the telephone with ‘Hello Daddy’ would generally not be hearsay as defined in s 59 when used to prove the identity of the caller, because the child did not intentionally assert that it was his father on the phone.
R v Benz [1989] - another example like above • Judges disagreement highlighted lack of clarity in regard to Common Law implied hearsay • On morning of day that body was found, guy driving saw a stopped car, with boot open & 2 women standing looking into water (near where body was later discovered) • The smaller of the 2 said to him: "it's alright, my mother's just feeling sick" o HC determined this statement not admissible on hearsay grounds o It contained an implied assertion (ie. that this is my mother) • Prosecution wanted to use this to establish that the 2 women on the bridge were mother & daughter, as Benz & mother were, and thus that it was Benz and mother that he saw & spoke with • Under Section 59: o Court would not have needed to ask what the woman actually intended o Rather, if the woman could reasonably be supposed to have intended to assert the fact that the person was her mother o If decided today, the previous representation containing the implied assertion MAY be able to be used to prove the fact impliedly asserted by it, assuming the maker of the statement did not intend to make such an assertion of act (so not hearsay)
52 b) Express previous representation The intention requirement in s 59 was proposed for the purpose of resolving the admissibility of implied hearsay (above) - however the requirement has signifance even where previous reps are an express one • Express previous representation = still need to determine objectively what maker of representation intended to assert by it R v Lee • Cailan (witness) made a statement that he heard Lee (the defendant) say "I fired 2 shots" • This was an express representation by Cailan that Lee said something • In the witness box, however, Cailan denied having heard Lee say this • Thus the need arose as to whether the previous representation could be admitted • High Court explained that section 59 requires the court to consider why it sought to lead evidence of something said or done out of court o What is the party seeking to adduce the representation trying to prove? ! Are they trying to prove the existence of a fact that the person making representation intended to assert? ! Enquiry is to what the person making the assertion intended to assert by it • High Court held that previous rep by Cailan was not intended to assert as a fact that 2 shots had been fired o As he had no way of knowing this fact - all he tried to assert was that Lee told him he had fired the shots and that he believed this • Principle: Express representation is only hearsay if it is relevant to prove the existence of a fact asserted in it where the maker of the representation intended to assert the fact •
