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Week 7 Exceptions to the Hearsay Rule - Coggle Diagram

- - - - In R v O’Meally [1952] VLR 499, O’Meally was on trial for the murder of a police officer (holding the rank of constable).
        
        The court determined that the evidence of the deceased’s statements was not admissible under this exception, because although the statements were made in the course of the police officer’s duties, it did not meet the following conditions
        
        first, it was not done under a specific duty to perform a certain act and report back
        
        second, it was not done in accordance with a ‘regular duty’ to report to a ‘superior officer.
      - The rationale for this exception generally appears to be that a statement made as a result of a duty is more likely to be made honestly and accurately, because the duty imposes a similar requirement to an oath in terms of truth telling
    - - The law recognises a hearsay exception for dying declarations, made by murder victims, identifying their murderer. The rationale ‘appears to be an acceptance that, when a person knows that death is imminent, any earthly motive to lie will fall away and there will be strong motivation to speak truly’: R v Buzzacott (2010) 107 SASR 564, [6].
      - for this hearsay exception to apply, five conditions must be met
        Western Australia v Montani [2006] WASC 190, quoting the judgment in R v Golightly (1997) 17 WAR 401, [61].
        
        The maker of the dying declaration must be dead.
        
        The trial must be for the declarant’s murder or manslaughter.
        
        The statement must relate to the cause of the declarant’s death.
        
        The declarant must have been, at the time of the declaration, competent to give evidence.
        
        The declarant must have been under a ‘settled hopeless’ expectation of death.
        
        The last of these conditions has been the source of difficulty.
        
        Buzzacott, the victim was stabbed and made his way home. He told several people, using various forms of words, that ‘Josh Buzzacott’ had stabbed him. However the judge found that there was nothing in the victim’s behaviour at the time which indicated that he expected to die from his wounds.
        
        Consequently, the declaration was not a dying declaration and was merely run-of-the-mill hearsay, and thus not admissible.
        
        In Montani, the defendant was accused of shooting a security guard. When the security guard was found, near death, he was asked who had shot him and gave the name ‘Johnny Montoyo’ twice, before lapsing into unconsciousness and eventually dying.
        
        The judge accepted, on the balance of probabilities, that the guard was aware of the imminence of his death, and had no hope of recovery
    - - The first exception has been with us for nearly 170 years. In the Sussex Peerage Case (1844) 8 ER 1034,
        
        He also produced what were purported to be signed declarations by the Duke, and his mother, attesting to their marriage. The declarations were not admitted into evidence, however the court did acknowledge that in some cases, where a deceased person has made statements against their own pecuniary or proprietary interests, the statements will be admissible.
        
        This rule has survived into modern times, being cited in obiter in Bannon v R (1995) 185 CLR 1.
        
        Both Sussex and Bannon make it clear that the rule is limited to pecuniary and proprietary interests
    - - Hughes stands as authority, however, that where the testator’s state of mind is relevant, out of court statements by the testator prior to their death will be admissible as evidence of their state of mind.
      - Hughes v National Trustees (1979) 143 CLR 134 a son with a very patchy history of employment had been living on his father’s farmland, making a subsistence living, for some thirty years
        
        Mrs Hughes died, leaving nothing to her son. He made an application under family provision legislation for the whole estate. There were no other claimants.
        
        The executors opposed his application, and sought to cite Mrs Hughes’ earlier statements as evidence that she had considered her son’s needs and quite deliberately decided not to leave anything to him.
        
        The High Court indicated that under most circumstances, this evidence would have been admissible and compelling. However, in this particular case, Hughes was unemployed and unemployable, and family provision legislation did not require consideration of Mrs Hughes’ wishes.
        
        Hughes’ appeal was successful
  - - - Evidence Act 1995 (Cth) s 63
      - Death, in this case, becomes merely a specific type of unavailability. A party intending to lead hearsay evidence of this type is required to give the other party notice of their intention to do so:
        
        s 67.
      - The other party may object if they consider that the witness is actually available, but the party proposing to call the evidence is actually misusing the rule to ‘hide’ the witness and protect them from cross-examination:
        
        s 68.
- - - - The first is where the words spoken, in the course of an incident, assist the court to understand what actually happened during the incident.
        
        R v Benz (1989) 168 CLR 110, a mother and daughter had just stabbed the mother’s de facto husband to death. They were disposing of his body, in the small hours of the morning, by lowering it into a creek from a bridge. Unfortunately for them, a car crossed the bridge just after they had done so. The occupant of the car slowed, and asked if they were OK. The younger woman said words to the effect of ‘Everything’s OK my mother’s just sick.’ This statement, made during the disposal of the body (and therefore in the course of the action) was considered to be res gestae, and admissible on that basis
      - second example is where statements were so clearly made in the course of the events that there is no chance they were concocted. Such statements are not descriptions of the event, they are actually part of the event.
        
        Ratten v The Queen [1972] AC 378, a wife called the switchboard in Echuca, asking to be put through to police. The switchboard operator gave evidence that she was hysterical and panicking when she called. The husband argued that he had been cleaning his gun and it had discharged accidentally. Clearly, this was inconsistent with a hysterical phone call. The evidence of the switchboard operator was ruled admissible, because the hysteria of the victim was not an out-of-court representation; it was part of the events which formed the basis of the crime.
      - The third use of the res gestae exception is where hearsay statements indicate the state of mind of a person at a time when their state of mind is relevant.
        
        In Bull v The Queen (2000) 201 CLR 443, a woman was asked to come over to the residence of a friend, late at night. There were several men there. Part of the invitation to come over involved a chance to ‘do one of her fantasies’ which involved having sex with multiple men at the same time. She went to his house, and the three men were later charged with a range of sexual offences. Clearly, her state of mind at the time was relevant; consequently, the discussion about the chance to ‘do one of her fantasies’ was admissible.
      - Finally, a statement of immediate sensation related to the facts in question, is regarded as falling within the res gestae exception
        
        A startled exclamation of pain, sudden swearing, or similar statements are all regarded as being, in essence, part of the events. However, if the person making the statement starts to speak about matters beyond their immediate sensations, those statements will not fall within the exception.
        
        if a person said ‘My head hurts because Kathryn threw a book that hit my head,’ then ‘My head hurts’ would be admissible hearsay, while ‘Kathryn threw a book that hit my head’ would not
- - - - This evidence was clearly hearsay, but it would provide a solid explanation for how the accused got into the bedroom with the victim.
        
        The evidence was admitted, on the basis that it was a statement of her contemporaneous thoughts. The statement was not part of the facts, but it clearly indicated her state of mind at the time of the facts.
- - - - The killer, Pollitt, had accepted a contract from a person with the surname Allen to kill a drug dealer named Williams at his home. Williams, tipped off by police, did not go home. Instead, Williams’ brother in law turned up innocently, with his family. Pollitt shot and killed the brother in law by mistake. He then demanded payment for the ‘hit’ anyway. A phone call between Pollitt and Allen, in which Pollitt demanded the money, was overheard by Allen’s wife. Allen then said, after hanging up, that he had been speaking with Pollitt
        
        This was clearly hearsay, yet it was admitted into evidence to prove the relationship between Pollitt and Allen.