1. LAWS13010 Evidence and Proof Topic 7 – The Rule Against Hearsay

2. Learning Objectives At the end of this topic, you should be able to: Explain the Rule Against Hearsay and its rationale; Distinguish between statements called upon as evidence of the truth of the statement, and other statements; Distinguish between first-hand and remote hearsay; Outline the exceptions to the hearsay rule in general terms; Outline the ways in which prior statements may be used as evidence relating to the credit of a witness.

3. The Rule Against Hearsay Evidence of a statement made to a witness by a person who is not himself called as evidence may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made. Subramanium v Public Prosecutor

4. The Use of the Prior Statement Dave said “ I punched his lights out !” ADMISSIBLE to prove that Dave made that boast – because the witness heard those words with one of their own five senses. INADMISSIBLE to prove that Dave actually punched anyone's lights out – because the witness can't honestly say whether he did so.

5. Rationale for the Rule Hearsay evidence is inherently less reliable, because the statement is not based on observations by the witness' own five senses. English Exporters v Eldenwall Hearsay evidence denies the other party the fundamental right to cross-examine the original maker of the statement. Teper v The Queen The original statement was not made under oath, and therefore cannot be given the weight of sworn evidence. Teper v The Queen In a system relying on juries to determine facts, compelling hearsay may be given too much weight. The Berkely Peerage Case

6. First Hand v Remote Hearsay Dave to Karl : I knew I ' d had a few too many but I decided to drive anyway Karl to Anna : Dave told me he knew he ' d had a few too many, but he decided to drive anyway Karl ( in court ): Dave told me he knew he ' d had a few too many, but he decided to drive anyway Anna ( in court ): Dave told Karl that he knew he ' d had a few too many, but he decided to drive anyway Karl's evidence is first-hand hearsay, because the person who told him (Dave) had first hand knowledge of the events. Anna's evidence is remote hearsay, because the person who told her (Karl) was himself relying on statements made by others.

7. Balancing Prejudice and Proof The fundamental question in relation to hearsay is: Does the PROBATIVE value of the evidence outweigh its tendency to PREJUDICE a just outcome? Now that we understand the concept of hearsay, this question will occupy us for the rest of this week, and for the next two weeks !

8. Documents as Hearsay Last week we learned that documents are usually hearsay. Now that we understand the rule, the reasons become more obvious. Oral Hearsay Stacey told Dave Dave told the Court Documentary Hearsay Stacey wrote it in an email The email was produced in court Consider that if Stacey does not give evidence: The person producing the email in Court has no idea, based on personal experience, whether the contents are true; Stacey cannot be cross-examined in relation to the contents of the email; Stacey did not write the contents of the email under oath.

9. Hearsay in Other Institutions Hearsay evidence may validly be admitted by some courts and tribunals, which are not bound by the full rules of evidence. For instance: Family Law Act 1975 (Cth) specifically excludes the application of the Hearsay rule. Family Law Act 1975 (Cth) s.69ZT(1)(c) QCAT Act 2009 (Qld) states that the tribunal is not bound by the rules of evidence. QCAT Act 2009 (Qld) s.28(3)(b) However in each case the court/tribunal is required to do substantial justice, and just because the hearsay rule is not binding, does not mean it will have no effect. Rules of evidence “represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them on one side...” Evatt J in R v War Pensions Entitlement Tribunal (1933) 50 CLR 228

10. Exceptions to the Hearsay Rule There are a range of exceptions to the hearsay rule, most of which we will cover in this topic and the two which follow. In overview, they are: Admissions & confessions Statements forming part of the res gestae (said during the action) Contemporaneous state- ments of thoughts or feelings Prior statements inconsistent with a witness' evidence in court Statements of persons now deceased Statements identifying the other party to a telephone call Statements by expert witnesses drawing on the knowledge of their field

11. Confessions and Admissions Confessions and admissions will occupy us for all of Topic 8. In general, an admission or confession made out of court will be admissible despite the hearsay rule. The basic rationale for this is that a party is likely to be telling the truth if they speak against themselves. Are you comfortable with this? What if a party is induced or threatened? What if a party is protecting someone else?

12. Hearsay and Credit Evidence “Reliability” is one of the ways in which evidence can be challenged. Credit Evidence is called in order to convince the court that a particular witness called by the other side cannot be believed. Credit Evidence will often involve hearsay evidence, and is admissible. Types of credit hearsay include evidence that: the witness made a prior inconsistent statement; the witness has a reputation for lying; the witness has a bias relevant to the case; the complainant has failed to complain at the first reasonable opportunity; the witness has recently invented their complaint.

13. Prior Inconsistent Statements If a witness, under cross-examination, gives evidence which is different to a statement they have made before the trial, the following should occur: 1.The prior statement should be put to them in cross-examination. 2.If they admit that they made the prior statement, then they may be cross-examined as to why. 3.If they refuse to admit that they made the prior statement, evidence may be called that they did so (for instance, by calling the person to whom the statement was made. Such evidence is admissible hearsay. Evidence Act 1977 (Qld) s.18 R v Soma (2003) 212 CLR 299

14. Asserting a Bias A bias, in this context, refers to a willingness, on the part of the witness, to lie under oath in order to secure some outcome. It is permissible to call evidence, which would otherwise be hearsay evidence, to demonstrate a bias. However, prior to doing so, the allegation of bias (and the substance behind it) must be put to the allegedly-biased witness themselves. Nicholls v R (2005) 219 CLR 196

15. Sexual Offences - Failure to Complain In centuries past, the common law held that the failure of a sexual offence victim to immediately complain, was evidence of the victim's consent to the sexual conduct. A version of this rule remains in Queensland. If the victim of a sexual offence delays their complaint, this may be adduced as evidence of poor credibility. Kilby v R (1973) 129 CLR 460 Statute law in Queensland prescribes: Evidence of how and when any preliminary complaint was made by the complainant about the alleged commission of the offence by the defendant is admissible in evidence, regardless of when the preliminary complaint was made. Criminal Law (Sexual Offences) Act 1978 (Qld) s.4A(2)

16. Recent Invention Remember the limits of perception, comprehension, memory and honesty? It might be suggested that a witness' account of events is a “recent perception” devised either consciously or unconsciously so that they can give a coherent account of events If the witness gave the same account to someone else, much closer to the time of events, that person can be called to rebut the suggestion of recent invention. Nominal Defendant v Clements (1960) 104 CLR 476 Is this hearsay? Is it being admitted for a hearsay purpose? This is a complicated question – however the testimony is admissible in any event.

17. Review In this topic, you have learned: The general meaning of the rule against hearsay, and the rationale for the rule; The difference between using a prior statement for a hearsay and a non-hearsay purpose; The difference between first-hand and remote hearsay; That there are a range of exceptions to the hearsay rule; and That a number of those exceptions relate to the credit of the witness, that is, the ability of the court to believe that their evidence is true.