1. Hearsay Rule
Lecture 6, 2014

2. LEE v R (1998) 195 CLR 594 per GLEESON CJ, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ at [32]
The common law of evidence has long focused upon the quality of the evidence that is given at trial and has required that the evidence that is given at trial is given orally, not least so that it might be subject to cross-examination. That is why the exclusionary rules of the common law have been concerned with the quality of the evidence tendered - by prohibiting hearsay, by permitting the giving of opinions about matters requiring expertise by experts only, by the "best evidence rule" and so on. And the concern of the common law is not limited to the quality of evidence, it is a concern about the manner of trial. One very important reason why the common law set its face against hearsay evidence was because otherwise the party against whom the evidence was led could not cross-examine the maker of the statement. Confrontation and the opportunity for cross-examination is of central significance to the common law adversarial system of trial.

3. Confrontation Test the factual base and credibility of a witness
Common law preference for oral hearings – need for hearsay rule
Person’s absence from a trial is permitted by statute – hearsay exceptions can apply

4. What is hearsay evidence?
Representations made out of court (either oral or written or in the form of conduct) that are admitted as evidence in court to prove the truth of the fact that the maker of the representation intended to assert by the representation.

5. What is wrong with hearsay evidence?
Not on oath
No xx
Not the best evidence
Danger of inaccuracy
Risk of fabrication

6. Subramaniam v Public Prosecutor [1956] 1 WLR 965
Common law case to illustrate the rule
What evidence was excluded at S’s trial?
Who made the previous representation?
Did the Privy Council find that the evidence was hearsay?
What TJ direction was required in relation to the evidence?

7. Subramaniam v Public Prosecutor
The evidence is hearsay and inadmissible when the object of evidence is to establish the truth of what is contained in the statement.
The evidence is not hearsay and it is admissible when it is proposed to establish by evidence, not the truth of the statement but the fact that it was made.

8. The hearsay rule – s 59
(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.
What are the important terms in this section? How do you know when it applies to exclude evidence?

9. 59 continued
(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.

10. 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.

11. Dictionary to 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.

12. What happens if section 59 applies?

13. Hearsay exceptions Previous rep admitted to prove intended assertion
of the maker.
Section 59 applies.
Exception
Admissions
(see dictionary)
First hand
Exceptions
ss 63,64, 65, 66, 66A
Remote ss

14. 81 Hearsay and opinion rules: exception for admissions and related representations
(1) The hearsay rule and the opinion rule do not apply to evidence of an admission.
(2) The hearsay rule and the opinion rule do not apply to evidence of a previous representation:
(a) that was made in relation to an admission at the time the admission was made, or shortly before or after that time, and (b) to which it is reasonably necessary to refer in order to understand the admission.

15. Dictionary to EA
"admission" means a previous representation that is: (a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding), and (b) adverse to the person’s interest in the outcome of the proceeding.

16. Section 60
(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
Note: Subsection (2) was inserted as a response to the decision of the High Court of Australia in Lee v The Queen(1998) 195 CLR 594 .
(3) However, this section does not apply in a criminal proceeding to evidence of an admission. 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.

17. Effect of section 60
If a previous representation is admitted for non hearsay purpose then it can be used for a hearsay purpose.
Subject to discretion to limit (s 136).

18. When is a previous representation admitted for non hearsay purpose?
Evidence admitted
for a
non hearsay
purpose.
Prove fact that a
previous
representation
was made
(Subramaniam)
Credibility purpose
Adam
(2001) 207 CLR 96
Basis of
expert report
Lawson [2000]
NSWCCA 214

19. R v Lawson [2000] NSWCCA 214
The complainant’s previous representations were admitted to prove the basis of the expert’s opinion.
This means they were admitted for a non-hearsay purpose and now could be used for a hearsay purpose because of s 60.

20. Also applies to expert reports Quick v Stoland
Accountant & auditor summarized financial records not in evidence – the purpose of reference in report was to show the factual basis for his expert opinion.
Jango v NT
Representations in anthropologist’s report in native title claim – effect of s60 limited by s 136

21. Lee v the Queen (1998) 195 CLR 594

22. What was in Calin’s police statement?
i) an account of what Calin had done
ii) an account of what Calin had seen,
iii) an account of a conversation
“Leave me alone, cause I’m running because I fired two shots…I did a job and the other guy was with me bailed out”.

23. Assume Calin is not an unfavourable witness
1. If Calin testifies about what Lee said (ie the previous representation contained in his statement to police about ‘firing two shots and just doing a job’), who has made the previous representation?

24. 2. What is the purpose of Calin giving evidence of Lee’s previous representation? In other words, what is that person intending to assert in the previous representation?

25. 3. Would Lee’s previous representation be excluded by the hearsay rule?
4. Is there an exception to the hearsay rule that would apply?

26. Consider the trial of Lee – Calin as an unfavourable witness
1. Who made the previous representations in Calin’s statement to police?

27. What Calin saw?
2. How did the High Court deal with Calin’s previous representation of what Lee did (ie “walking fast” and “sweating”)?
Who made the previous representation?
How was this previous representation admitted?
What use could be made of the previous representation? [26]

28. What Calin heard?
3. How did the High Court deal with Calin’s previous representation of what Lee said (ie “Leave me alone, cause I’m running because I fired two shots…I did a job and the other guy was with me bailed out”)?
Who made the previous representation?
What did the Calin intend to assert?
What did Lee intend to assert?
How was this previous representation admitted?
What use could be made of the previous representation? [22], [27], [29]

29. 4. What should the trial judge have done in the trial of Lee? [41]

30. Lee shows that to use a prior statement for its hearsay use:
It is important to identify the asserted fact in the previous representation and whether the previous representation is being admitted to prove that asserted fact.
Calin’s statement to police could not be used to prove Lee’s confession. The only asserted fact in Calin’s previous representation was an assertion by Calin that Lee said something.

31. Approach to section 59 1. Identify the previous representation.
2. What is the intended asserted fact in the representation?
3. Is the previous representation being tendered to prove the asserted fact in the previous representation? – if yes, then section 59 excludes the evidence (see if an exception applies)

32. Amendments to s 60
(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. 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.

33. What would happen if the facts of Lee were applied to amended EA?

34. Intended assertion An example, from the facts in
Walton v The Queen (1989) 166 CLR 283

35. Walton v The Queen (1989) HC 1. Who made the previous representation?
2. What is the asserted fact in the representation? - greeting
3. Is the previous representation being tendered to prove the asserted fact, or something else? - the unintended assertion.

36. The child did not intend to assert the fact that the other person on the phone was his father.
The child was greeting the father.

37. The child’s statement is an unintended assertion and would not be excluded by s 59 because s 59 only applies to INTENDED assertions.

38. Kamleh v The Queen K convicted of 2 counts of murder
Zappia convicted 2 counts of manslaughter
Evidence of Mr S re conversations with Zappia on 3/4/00
Statements made by Zappia to the police on 6/4
Evidence of Mr S of statements by Z to prove intention (on 24/3)