EVIDENCE – hearsay class 6 7 July 2014

1. DANIEL TYNAN – 12th Floor Wentworth Chambers EVIDENCE – hearsayclass 67 July 2014

2. Today • Hearsay rule • Exceptions to the hearsay rule

3. Hearsay Rule

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. 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? Subramaniam v Public Prosecutor[1956] 1 WLR 965

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

14. 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.

15. 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).

16. When is a previous representation admitted for non hearsay purpose?

17. 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.

18. Also applies to expert reports – • see Quick v Stoland • Jango v NT

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

20. 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”.

21. 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?

22. 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?

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

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

25. 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]

26. 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]

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

28. 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.

29. 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)

30. 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.

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

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

33. 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.

34. 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.

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

36. 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)

37. Hearsay Exceptions

38. If a previous representation is relevant and being admitted to prove the intended asserted fact made by the maker of the previous representation. • s 59 excludes the previous rep – unless an exception applies. • 3 main groups of exceptions

39. Hearsay exceptions

40. 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.

41. 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.

42. Exceptions – an overview • 60 • First hand exceptions 63, 64, 65, 66, 66A • Business records 69 • Tags and labels 70 • 71-75 • Admissions 81 • 87(2) • 110 and 111

43. Approach to first hand hearsay exceptions • First hand or remote? - s 62 – must be first hand • Criminal or civil? • Maker unavailable? • s 61 – maker must be competent • s 67 – notice may be required.

44. What is first hand hearsay? • X to M. M is witness.(1st hand) • X to M to L. L is a witness. (2nd hand)

45. Clause 4 of Dictionary to EA - Unavailability of persons (1)(a) the person is dead, or (b) the person is not competent to give the evidence about the fact, or (c) it would be unlawful for the person to give evidence about the fact, or (d) a provision of this Act prohibits the evidence being given, or (e) all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or to secure his or her attendance, but without success, or (f) all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success.

46. Caterpillar Inc v John Deere Limited (No 2) (2000) • The evidence related to depositions taken in an North American case concerning an Notrth American expert. Deere claimed the expert was unavailable, as they had written to him inviting him to come to Australia to give evidence in the case. The expert did not respond. • Re Clause 4(1)(e) – [19] • Re Clause 4(1)(f) – [20]

47. 63 Exception: civil proceedings if maker not available (1) This section applies in a civil proceeding if a person who made a previous representation is not available to give evidence about an asserted fact. (2) The hearsay rule does not apply to: (a) evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made, or (b) a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation.

48. 64 Exception: civil proceedings if maker available (1) This section applies in a civil proceeding if a person who made a previous representation is available to give evidence about an asserted fact. (2) The hearsay rule does not apply to: (a) evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made, or (b) a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation, if it would cause undue expense or undue delay, or would not be reasonably practicable, to call the person who made the representation to give evidence.

49. Section 64 (3) If the person who made the representation has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by: (a) that person, or (b) a person who saw, heard or otherwise perceived the representation being made.

50. An example of 64(2) • Ordukaya v Hicks [2000] NSWCA 180