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Week 6: The rule against hearsay - Coggle Diagram
Week 6: The rule against hearsay
Evidence of a statement made to a witness who is not himself called as evidence may or may not be hearsay.
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 it was made.
Subramanium v DPP
It is hearsay and inadmissible when the object of evidence is to establish the truth of what is contained in a statement
Use of prior statement
Admissible to prove the boast was made - witness heard the words themselves
Inadmissible to prove that anything happened - the witness did not actually witness an event
Rationale for the rule
Hearsay evidence is inherently less reliable, because the statement is not based on observations by the witness' own five senses
Hearsay evidence denies the other party the fundamental right to cross-examine the original maker of the statement
The original statement was not made under oath, and therefore cannot be given the weight of sworn evidence
In a system relying on juries to determine facts, compelling hearsay may be given too much weight
First-hand hearsay v remote hearsay
First hand hearsay - the person who told the witness had first hand knowledge of the events
Remote hearsay - the witness is relying on the statements of others7
The FUNDAMENTAL QUESTION
Does the PROBATIVE value of the evidence outweigh its tendency to PREJUDICE a just outcome?
Oral Hearsay vs Documentary Hearsay s92, 93
Oral - Stacey told Dave
Dave told the court
Documentary - Stacey wrote it in an email
the email is presented to the court
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
Stacey did not write the contents under oath
Hearsay evidence may be validly admitted by some courts and tribunals, which are not bound by the full rules of evidence.
Family Law Act 1975
(Cth) specifically excludes the application of hearsay rule (s 69ZT(c)
QCAT Act 2009 (Qld) states that the tribunal is not bound by the rules of evidence. (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 the on one side...'
Evatt J in
R v War Pensions Entitlement Tribunal
(1933) 50 CLR 228, 256
Exceptions
Admissions and confessions
Statements forming part of the
res gestae
(said during the action)
Contemporaneous statements or thoughts or feelings
Prior inconsistent statements
Statement of persons now deceased
Statements identifying the other party to a telephone call
Statements by expert witnesses drawing on the knowledge of their field
Hearsay and Credit Evidence
Reliability is one of the ways in which evidence can be challenged
Credit evidence is called to convince the court that a particular witness called by the other side cannot be believed. It will often involve hearsay that is admissible. Types of credit hearsay include evidence that:
The witness made a prior inconsistent statement
If a witness gives evidence different to a statement they made before trial:
the prior statement may be put to them in cross
If they admit they made the prior statement, then may be cross-examined as to why
if they refuse to admit that they made the prior statement, evidence may be called that they did so
Such evidence is admissible hearsay
Evidence Act 1977
(Qld) s 18
R v Soma
(2003) 212 CLR 299
The witness has a bias relevant to the case
A bias, in this context, refers to a willingness, on the part of the witness, to lie under oath to secure some outcome.
It is permissible to call evidence, which would otherwise be hearsay evidence, to demonstrate bias
However, in prior to doing so, the allegation of bias (and the substance behind it) must be put to the allegedly bias witness themselves
Nicholls v R
(2005) 219 CLR 196
The witness has a reputation for lying
The complainant has failed to complain at the first reasonable opportunity
Sexual Offences - Failure to Complain
In years past, common law held that failure of a sexual offence victim to immediately complain was evidence of the victims consent to the sexual conduct. A version of this rule remains in QLD.
Evidence of how and when 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)
If the victim of a sexual offence delays their complaint, this may be adduced as evidence of poor credibilityL
Kilby v R
(1973) 129 CLR 460
The witness has recently invented their complaint
Recent Invention
It might be suggested that a witness' account of events is a 'recent invention' 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 complicate, however the testimony is admissible in any event