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Week 6 Rule against Hearsay - Coggle Diagram

- - - - Subramaniam v DPP [1956] 1 WLR 965
        
        On appeal, the Privy Council ruled that the trial judge had got it wrong. The essence of their ruling was:
        
        • If Subramaniam, by calling this evidence, was trying to demonstrate that the bandits actually would have killed him, it would be hearsay and inadmissible;
        
        • However, in this case, all Subramaniam was trying to do was prove that the bandits said the threatening words. Since he heard the threatening words with one of his own five senses, this was direct evidence and not hearsay. Thus, the Privy Council ruled that the evidence should have been admissible.
  - - - Walton v The Queen (1989) 166 CLR 283
  - - - Section 59(1) states:
        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.
      - Section 60(1) states:
        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.
- - - - Subramaniam v DPP [1956] 1 WLR 965
- - - - As Justice Evatt stated in the High Court, the 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’ even if the statute permits it:
- - - - Credit evidence almost always involves presenting evidence of the statements which the witness has made outside the courtroom. The usual arguments made in this situation are:
        
        that the witness is known to have made, outside the court, statements inconsistent with the evidence they have given in court;
        
        Prior Inconsistent Statements
        
        R v Soma (2003) 212 CLR 299
        
        Section 18 of the Evidence Act 1977 (Qld) allows for an exception to the hearsay rule, provided the following circumstances are met
        
        • the witness must have made, outside the court, a statement;
        
        • the witness must have given evidence which is inconsistent with that out-of-court-statement;
        
        • the cross-examiner must, as a first step, put to the witness that they made the previous statement; and
        
        • if the witness denies having made the previous statement, the cross-examiner may then introduce hearsay evidence of that prior statement; and
        
        • the witness must then be given an opportunity to explain the discrepancy.
        
        that the witness is known to have made statements which exhibit a bias against a party (with the Court invited to infer that the witness’ evidence may reflect that bias);
        
        Bias
        
        Nicholls v R (2005) 219 CLR 196
        
        If Davis’ statement to Ross was correct, then the purpose of his evidence would not be to assist the court to find the truth; rather, his purpose would be to secure an advantage for himself and/or a disadvantage for someone else. This, in the context of evidence law, is a bias. It obviously goes to the credit of the witness, because a witness who stands to gain or lose by their evidence cannot be assumed to be telling the truth.
        
        that (in a sexual offence case) the alleged victim has failed to complain at the first reasonable opportunity to do so;
        
        Failure to Complain in Sexual Cases
        
        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).
        
        Evidence of the circumstances of the complaint is, self-evidently, hearsay evidence. However, the particular nature of sexual crimes – especially the tendency for victims of these crimes to delay their complaint – suggests that there remain good reasons to admit this evidence.
        
        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
        
        that the witness (particularly the complainant) has recently invented certain aspects of their evidence, to bolster their side of the case.
        
        Suggestions of Recent Invention
        
        The result may be that the witness’ account may (even though the witness is attempting to be honest and helpful) actually be a relatively recent fabrication of events. If, under cross-examination, the other side argues that the evidence is a ‘recent invention’ then the only real way to rebut that argument is to produce evidence that, at an earlier time, the witness gave an out-of-court account of the incident, which was consistent with their current evidence. If their evidence is consistent with the earlier statement, it can hardly be a recent invention.
        
        Nominal Defendant v Clements (1960) 104 CLR 476