LAW OF EVIDENCE. LPAB Summer 2016/2017 Week 6. A. Kuklik

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1 LAW OF EVIDENCE LPAB Summer 2016/2017 Week 6

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4 This Week 3(3) Hearsay 3(3)(a) The general rule EA ss 59, 60, 136 Subramaniam v Public Prosecutor [1956] 1 WLR 965 (KOP [7.30]) Kamleh v The Queen (2005) 213 ALR 97 (KOP [7.40]) Lee v The Queen (1998) 195 CLR 594 (KOP [7.60]) 3(3)(b) Evidence used for a non-hearsay purpose EA s 60 Lee v The Queen (1998) 195 CLR 594 (KOP [7.60]) Quick v Stoland Pty Ltd (1998) 87 FCR 371 (KOP [7.70]) Jango v Northern Territory of Australia (No 4) (2004) 214 ALR 608 (KOP [7.80]) 3(3)(c) First-hand hearsay exceptions (i) Availability and requirements EA ss 61, 62, 67 Caterpillar Inc v John Deere Limited (No 2) (2000) 181 ALR 108 (KOP [7.100]) The Council of the New South Wales Bar Association v Franklin [2014] NSWCA 329 (KOP [7.110])

5 3(3) Hearsay This Week (i) Civil cases EA ss 63, 64 Caterpillar Inc v John Deere Limited (No 2) (2000) 181 ALR 108 (KOP [7.100]) (ii) Criminal cases EA ss 65, 66 Caterpillar Inc v John Deere Limited (No 2) (2000) 181 ALR 108 (KOP [7.100]) Williams v The Queen (2000) 119 A Crim R 490 (KOP [7.130]) Harris v The Queen [2005] NSWCCA 232 (KOP [7.140]) Munro v R [2014] ACTCA 11 (KOP [7.540]) Baker v The Queen (2012) (KOP [7.160]) Sio v The Queen [2016] HCA 32 Graham v The Queen (1998) 1245 CLR CLR 606 (KOP [7.180]) R v XY [2010] NSWCCA 181 (KOP [7.190]) LMD v R [2013] VSCA 164 (KOP [7.200]) I S J v The Queen [2012] VSCA 321 (KOP [7.210]) Clay v The Queen [2014] VSCA 269(KOP [7.220])

6 3(3)(d) Business records Admissibility hearsay EA s 69 Lancaster v The Queen [2014] VSCA 333 (KOP [7.240]) Thomas v State of NSW [2008] NSWCA 316 (KOP [7.250]) Lithgow City Council v Jackson (2011) 281 ALR 223 (KOP [7.260] Australian Competition and Consumer Commission v Air New Zealand Ltd (No 1) [2012] FCA 1355 (KOP [7.270] 3(3)(e) Other exceptions (not examinable) EA s Lancaster v The Queen [2014] VSCA 333 (KOP [7.240])

7 59 The hearsay rule-exclusion of hearsay evidence (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. (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. Note : Subsection (2A) was inserted as a response to the decision of the Supreme Court of NSW in R v Hannes (2000) 158 FLR 359.

8 Dictionary - "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. "representation" includes: (a) (b) (c) an express or implied representation (whether oral or in writing), or a representation to be inferred from conduct, or a representation not intended by its maker to be communicated to or seen by another person, or (d) a representation that for any reason is not communicated.

9 59 The hearsay rule-exclusion of hearsay evidence 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.

10 What is wrong with hearsay evidence? Not on oath Not able to cross-examine the maker Not the best evidence Danger of inaccuracy Risk of fabrication

11 Examples: 1 Admissibility hearsay D is the defendant in a sexual assault trial W has made a statement to the police that X told W that X had seen D leave a night club with the victim shortly before the sexual assault is alleged to have occurred. Unless an exception to the hearsay rule applies, evidence of what X told W cannot be given at the trial.

12 Examples: 1 Unless an exception to the hearsay rule applies, evidence of what X told W cannot be given at the trial.

13 Examples: 2 P had told W that the handbrake on W s car did not work.

14 Examples: 2 Unless an exception to the hearsay rule applies, evidence of that statement cannot be given by P, W or anyone else to prove that the handbrake was defective.

15 Examples: 3 W had bought a video cassette recorder and written down its serial number on a document.

16 Examples: 3 Unless an exception to the hearsay rule applies, the document is inadmissible to prove that a video cassette recorder later found in D s possession was the video cassette recorder bought by W

17 Subramaniam v Public Prosecutor [1956] 1 WLR 965 (KOP[7.30]) Charged with possession of ammo without authority. On a police search for a terrorist camp, he was found wearing a belt containing 20 rounds of ammunition. He said that he had been captured by terrorists and was under duress to follow their orders or be killed. They had forced him to carry the ammunition. When caught, he was planning to surrender and was on his way to do so. He tried to admit evidence of his conversations with the terrorists and their threats. Disallowed because it was hearsay needed to call the terrorists to give the representations. Sentenced to death.

18 Subramaniam v Public Prosecutor [1956] 1 WLR 965 (KOP[7.30]) Privy Council held: Not hearsay because not a hearsay purpose. Purpose of evidence was to prove duress (his mental state) which was relevant to his defence. Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. 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 that it was made. The fact that the statement was made, quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or of some other person in whose presence the statement was made.

19 Subramaniam v Public Prosecutor [1956] 1 WLR 965 (KOP[7.30]) This does not offend the principles behind the rule against hearsay, because: the truthfulness of the words said is not a matter that needs testing (assume that the terrorists said: carry this ammunition or we will shoot you it is not important whether the terrorist actually intended to shoot him) What is relevant to his defence is the fact that the terrorist said these words, and he was therefore afraid. These things can be tested by crossexamining Subramaniam himself.

20 Subramaniam v Public Prosecutor [1956] 1 WLR 965 (KOP[7.30]) 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 (relevant?) Here, the evidence was relied upon not to prove the truth of what the terrorists were saying, but that there was something said which caused the defendant to fear them and to follow their instructions: The evidence of the appellant, such as it was, suggested generally that he was in fear, that he planned to escape, and that he had no alternative but to do as the terrorists asked him to do.

21 Example: Admissibility hearsay If a bank teller in an armed robbery case gives evidence that the bank robber said Hand over your money or I will kill you, the evidence is not led in order to prove anything which the bank robber was trying to assert as true. The evidence is being led in order to prove that the words were uttered, which go to proving that a robbery was committed. However if the bank teller alleges that an acquaintance told him The Smith boys did that stick up, it would be hearsay for the bank teller to give evidence of that conversation. The distinction is sometimes described this way: In the first case, all the bank teller is intending to assert is that he heard the words spoken. The significance of the evidence is the fact that the words were said. In the second case, the acquaintance of the bank teller is intending to assert that the statement The Smith boys did that stick up is true. That evidence is prima facie inadmissible under the hearsay rule.

22 When is a previous representation admitted for non hearsay purpose? Examples: 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

23 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.

24 Kamleh v The Queen (2005) 213 ALR 97 (KOP[7.40]) Convicted of murder of prostitute and pimp. Co-offender charged with manslaughter and tried separately. Neither defendant gave evidence at hearing. Issue was admissibility of out of court statements to police and another. Fact in issue was whether defendant was in the unit between 1 and 4 am on 3 April A fact relevant to this was whether the co-defendant Zapia was in the unit at the same time (judge found that they were together throughout this time).

25 Kamleh v The Queen (2005) 213 ALR 97 (KOP[7.40]) A witness (Simoniuk) gave evidence that Zapia told to him about the shootings and told him that he (Zapia) had turned up the T.V. Evidence of this conversation could support the inference that Zappia (and therefore Kamleh) was in the apartment at that time of the shooting (the cleaners found the TV turned up and this had not been reported anywhere else). The prosecution relied upon this to show that Zappia knew that TV had been turned up the inference was that was likely to only have been available to someone in the room.

26 Kamleh v The Queen (2005) 213 ALR 97 (KOP[7.40]) Held: Prosecution tendered records of interview of defendant with Zappia which included discussion of telephone calls. This conversation was not relied on for a hearsay purpose because it was not tendered as evidence that Zappia had in fact turned the volume of the television set up. Rather, the fact Zappia said what he did about the television set was relevant because it revealed a state of knowledge on Zappia s part that tended to prove he was at the scene of the crime at the time of the killings (only someone in the room would know that the T.V. had been turned up). [16]

27 Kamleh v The Queen (2005) 213 ALR 97 (KOP[7.40]) Held Other telephone calls between the defendants admissible, not to prove the truth of the contents of the calls, but to prove that they had concocted an alibi together. In fact, prosecution case was that the representations in the telephone conversations were not true, but they showed that the alibis were the same. Statements of state of mind of intention are not hearsay if relevantly relied on for that purpose rather than to prove the contents of the statements.

28 Approach to applying s 59: 1. Identify the previous representation. 2. What is the intended asserted fact in the previous representation? That is, what fact is the maker of the previous representation intending to assert by making the representation? 3. Is the previous representation being adduced to prove that asserted fact in the previous representation? if yes, then section 59 excludes the evidence (see if an exception applies).

29 Section 60: Exception evidence relevant for a non-hearsay purpose (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.

30 Effect of section 60 Admissibility hearsay At common law, where hearsay evidence is admitted for a non-hearsay purpose, the court is not usually permitted to use it for its hearsay purpose, even where it is relevant for that purpose. This applies, for example, to evidence of a prior inconsistent statement of a witness. 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 the fact intended to be asserted by the representation. e.g. to show that the witnesses is/is not credible. But even if it is admitted for that purpose, at common law, the hearsay rule prevented that representation being adduced to prove the truth of its contents. Section 60 allows evidence that has been admitted for a non-hearsay purpose to also me relied upon for its hearsay purpose.

31 Effect of section 60 Admissibility hearsay The ALRC identified two major areas where difficulties arose from the common law principle that evidence admitted for a non-hearsay purpose could not be used for a hearsay purpose, even though the evidence was also relevant for the hearsay purpose. They are: prior consistent and inconsistent statements; and the factual basis of an expert s opinion. Prior statements At common law, a prior statement of a witness can be used in prescribed circumstances for the purpose of deciding whether to believe the witness, but cannot be used for the purpose of deciding the truth of the facts asserted in the statement. Extensive criticism of this situation was identified in ALRC 26.

32 Effect of section 60 Admissibility hearsay This criticism focused on the following: the exclusion of probative evidence; the extreme difficulty, if not impossibility, of making the required distinction between use of the evidence for the hearsay purpose and for the non-hearsay purpose; the undesirability of proceeding on the assumption that such a distinction can be made easily or at all; and the questionable reasoning involved in the distinction.

33 Effect of section 60 For example: Admissibility hearsay Evidence in Court: I was there; I saw it happen. Cross-examination: Did you not say on a prior occasion, I was not there; I didn t see it happen? Force of Rule: If the prior statement is admitted, or is denied but independently proved, then, subject to considering any explanation given by the witness: (a) that statement may be taken as making it less likely that the witness was there and saw it happen (i.e. may be used to lessen the weight to be given to his testimony), but (b) it may not be used as rendering it more likely that he was not there and did not see it happen (i.e. may not be used as evidence of the truth of the prior statement).

34 Effect of section 60 Admissibility hearsay Factual basis of expert opinion evidence An expert s opinion involves the application of the expert s special knowledge to relevant facts to produce an opinion. At common law, if those facts are observed by the expert, he or she can give evidence to prove those facts. Typically, however, the expert relies partly upon statements made to him or her by others about their observations of events which are facts in issue, together with a wide range of factual information from more remote sources. These statements and other sources of information can range widely and include: statements to a medical expert by a person injured about the circumstances in of injury and the subsequent progress of those injuries and past and present symptoms; information gathered by an expert valuer from a variety of people about the nature and quality of properties and the prices at which they were sold;

35 Effect of section 60 Admissibility hearsay Factual basis of expert opinion evidence information gathered by accountants and auditors (including financial records and other sources, including people) for the purpose of expressing opinions about the financial position or the management of companies; knowledge acquired by experts from reading the work of other experts and from discussion with them; the reported data of fellow experts relied upon by such persons as scientists and technical experts in giving expert opinion evidence; factual material commonly relied upon in a particular industry or trade or calling.

36 Effect of section 60 Admissibility hearsay Factual basis of expert opinion evidence The common law and the uniform Evidence Acts require that the facts and factual assumptions made and relied upon by a witness giving expert opinion evidence be sufficiently identified; evidence of matters such as those listed above is relevant for that purpose. Unqualified, the common law hearsay rule could, however, be used to prevent the expert s evidence on these matters being used to prove the truth of the facts relied upon in forming the expert opinion. Through necessity, the common law hearsay rule has been qualified both by judicial decision and legislation. the accumulated knowledge acquired by the expert;

37 Effect of section 60 Admissibility hearsay Factual basis of expert opinion evidence The ALRC explored the scope of these common law exceptions in relation to expert opinion. The proposal that became s 60 was formulated with these exceptions in mind, with the intention that s 60 would perform the role the miscellaneous common law exceptions had performed and the complication of specific exceptions for these kinds of evidence avoided.

38 Effect of section 60 Admissibility hearsay At the same time, it is recognised that there will be situations where s 60 could allow evidence of doubtful probative value to be received, and also evidence that cannot be adequately tested because the person who made the statement to the expert is not called to testify. In these situations, the factfinding process and the fairness of the proceeding are challenged. To address these possibilities, the uniform Evidence Acts contain Part 3.11, which can be invoked either to exclude the evidence or to limit its permitted use. Part 3.11 also recognises the special policy concerns related to the criminal trial. It is understandable that a person considering s 60 for the first time would see it as an extremely bold departure from the common law. However, the change must be considered in the context described above: that of the realities of the trial, and the statutory context in which s 60 operates. Viewed in that light, it is clear that s 60 is the result of a cautious approach to a number of major issues, and that it results in a simple and sound solution to those issues.

39 Effect of section 60 Admissibility hearsay At the same time, it is recognised that there will be situations where s 60 could allow evidence of doubtful probative value to be received, and also evidence that cannot be adequately tested because the person who made the statement to the expert is not called to testify. In these situations, the factfinding process and the fairness of the proceeding are challenged. To address these possibilities, the uniform Evidence Acts contain Part 3.11, which can be invoked either to exclude the evidence or to limit its permitted use. Part 3.11 also recognises the special policy concerns related to the criminal trial. It is understandable that a person considering s 60 for the first time would see it as an extremely bold departure from the common law. However, the change must be considered in the context described above: that of the realities of the trial, and the statutory context in which s 60 operates. Viewed in that light, it is clear that s 60 is the result of a cautious approach to a number of major issues, and that it results in a simple and sound solution to those issues.

40 Effect of section 60 (Prior to amendment not current) 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).

41 Lee v The Queen (1998) 195 CLR 594 (KOP [7.60]) Convicted of assault with intention to rob Defence was that the robbers ran out and gave him the gun Calin (prosecution witness) gave statement of what Lee said to him 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 At trial Cailan said that he did not recall these statements Cross-examined by crown (s 38 and 43).

42 Lee v The Queen (1998) 195 CLR 594 (KOP [7.60]) In oral evidence, Calin admitted signing the statement to police but denied that the statements in the signed document were his. The prosecution then called the police officer who prepared the statement, and evidence of the representation was admitted through that officer. Another police officer testified that Calin made a similar oral statement to that officer. Both the signed statement and evidence of the oral statement made by Calin to the police were admitted into evidence.

43 Lee v The Queen (1998) 195 CLR 594 (KOP [7.60]) Three pieces of evidence i. An account of what Calin had done. ii. An account of what Calin had seen. iii. An account of a conversation between Calin and Lee. What was the purpose of Calin giving evidence of Lee s previous representations? In other words, what is that person intending to assert in the previous representation? The fact that the statement or the conduct concerned might unintentionally convey some assertion is not the point. The inquiry is about what the person who made the representation intended to assert by it. [22]

44 Lee v The Queen (1998) 195 CLR 594 (KOP [7.60]) What Calin did and saw How did the High Court deal with Calin s previous representation of what Lee did (i.e. saw him walking fast and sweating )? Who made the previous representation? - Calin How was this previous representation admitted? - It was admitted as a prior inconsistent statement (because Calin denied this testimony in court) What use could be made of the previous representation? [26] Attack the credibility of Calin. But then, pursuant to s 60 it could then be used to prove the truth of the statement that Calin saw Lee do those things. (Remember the police officer is giving evidence of Calin s report of these things Calin told me he saw.

45 Lee v The Queen (1998) 195 CLR 594 (KOP [7.60]) What Calin heard How did the High Court deal with Calin s previous representation of what Lee said (i.e. 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? Calin (to the police officer) What did Lee intend to assert? That it was true (presumably). BUT, what did Calin intend to assert when he told the police? Only that Lee told him these things. Not that the things that Lee told him were true (because he could not know). How was this previous representation admitted? As a PIS What use could be made of the previous representation? They could not be used to prove the truth of the statements because that is not what Calin asserted by the statement, and s 60 will not operate to make them admissible. (Remember the police officer is giving evidence of Calin s report of these things Calin told me that Lee told him that.

46 Lee v The Queen (1998) 195 CLR 594 (KOP [7.60]) The High Court said in a joint judgment that evidence of what Calin reported Lee had said went only to Calin s credibility as evidence of a prior inconsistent statement. The court took the view that Calin intended to assert that he had heard Lee say the words attributed to him but did not intend to assert the truth of what Lee had said. 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. (But then doesn t this make it a non-hearsay purpose?)

47 Lee v The Queen (1998) 195 CLR 594 (KOP [7.60]) The Court s reasoning proposition encapsulates the following steps: (a) (b) s 60 operates only on representations that are excluded by s 59. s 59 operates only on evidence of a previous representation made by a person to prove the existence of a fact that the person intended to assert by the representation. (c) Therefore, s 60 does not apply to make admissible evidence of a representation the truth of which the witness did not intend to assert.

48 Lee v The Queen (1998) 195 CLR 594 (KOP [7.60]) Applying these steps to the facts of Lee, evidence of Calin s statement to the police could not be used as truth of the admission made to Calin because Calin could not be taken to have intended to assert the truth of the admission. Uncertainty arises from the above formulation. For example, if Calin s statement was not intended to assert the truth of the admission, on what basis did s 59 apply? By definition, s 59 only applies to prove the existence of a fact that the person intended to assert.

49 Lee v The Queen (1998) 195 CLR 594 (KOP [7.60]) To put the matter another way, s 60 does not convert evidence of what was said, out of court, into evidence of some fact that the person speaking out of court did not intend to assert. Representor Representee Representee/Witness (What did she intend to assert?) (What did she intend to assert?) Limit of operation of s 60

50 Lee v The Queen (1998) 195 CLR 594 (KOP [7.60]) Put simply, according to Lee v The Queen, s 60 only operated on first-hand hearsay. (But now amended ) Representor Representee Representee/Witness (Second-hand hearsay) (First-hand hearsay) Limit of operation of s 60

51 Section 60: Exception evidence relevant for a non-hearsay purpose (Amended version) (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.

52 Now (because of s 60(2)), s 60 operates upon second-hand and more remote hearsay. Representor Representee Representee/Witness (Second-hand + hearsay) (First-hand hearsay) Limit of operation of s 60

53 Now, s 60 operates upon second-hand and more remote hearsay. But s 60(3) still preserves the result in Lee, because it excludes the operation of s 60 in relation to admissions in criminal proceedings (which it was in Lee). We will discuss admissions in later weeks.

54 Jango v Northern Territory of Australia (No 4) (2004) (KOP[7.80]) Native title claim. Expert report anthropological evidence. Report included factual matters used to support the basis of the expert opinion objected to. Was this hearsay? No Effect of s 60? An order under s 136 was made to limit the use of this material because it was unfairly prejudicial (s 136(a)).

55 Quick v Stoland (1998) 87 FCR 371 (KOP[7.70]) Trial judge allowed report of accounting expert, who said company was insolvent. The expert report summarised financial records of the company, including financial records not put in to evidence. Report included factual matters used to support the basis of the expert opinion objected to. Was relevant to prove the factual basis of the report If it is hearsay, admissible pursuant to s 60. Here there was no genuine dispute as to the financial evidence. However, if the facts proved by the operation of s 60 are in conflict with proven facts or are unreliable, it is unsatisfactory to rely upon s 60, and an order under s 136 can be made to limit the use of this material because it is unfairly prejudicial (s 136(a)). Or if in an expert report, the expert can be required to express her opinion as a hypothetical.

56 Approach to applying s 59 (again): 1. Identify the previous representation. 2. What is the intended asserted fact in the previous representation? That is, what fact is the maker of the previous representation intending to assert by making the representation? 3. Is the previous representation being adduced to prove that asserted fact in the previous representation? if yes, then section 59 excludes the evidence (see if an exception applies).

57 Unintended/implied assertions: (not examinable) If the fact that the representor sought to assert by making the representation is not the fact that is being sought to prove the hearsay rule does not apply, because the assertion of the fact to be proved is unintended (assuming that it does prove it).

58 Unintended/implied assertions: (not examinable) The common law has grappled with the problem of when implied assertions (either assertions implied from statement not intended to assert a particular fact, or assertions implied from conduct not intended to assert a particular fact). Should they fall within the rule against hearsay? Consider: 1. W testifies that she saw a person running from a building yelling, There is a fire! Call the fire brigade! 2. W testifies that she saw a person running from a building yelling, Call the fire brigade! 3. W testifies that she saw a person run from a building, grab a fire extinguisher and run back in. Which should be hearsay?

59 Implied/Unintended assertions: (not examinable) Walton v The Queen (1989) 166 CLR 283 (KOP, 235)* Charged with murder. Night before murder child took a telephone call and said Hello daddy. 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? - It was a being used to prove the identity of the caller.

60 Unintended assertions: (not examinable) Walton v The Queen (1989) 166 CLR 283 (KOP, 231)* Is it hearsay? Yes - the High Court held (at common law) that this was admissible hearsay (because an exception applied). But the ALRC argues that under the Evidence Act, it is unlikely the child would intend to assert the identity of the caller. The child s statement is an unintended assertion and would not be excluded by s 59 because s 59 only applies to INTENDED assertions.

61 Unintended assertions Examples (1):(not examinable) Wendy is charged with damage to Otto s property. Wendy contends that she has never met Otto before in her life. Rollo offers evidence that 2 days before the crime, Wendy was seen to wave at Otto and then make an obscene gesture. Would evidence of this conduct be excluded by s 59? By the wave, can Wendy be taken to have to have INTENDED a display of recognition of Otto. This is relevant to the claim that she did not know Otto. By the obscene gesture, Wendy can be taken to have INTENDED an expression of distaste towards Otto. This affects an assessment of the probability that W acted maliciously towards Otto s property.

62 Unintended assertions Examples (2): (not examinable) Owner of a vessel takes her husband and children to sea on the ship. Tendered to prove the ship was seaworthy. The evidence rationally affects an assessment of that probability. Is it excluded by s 59? Can she be taken to have intended to assert anything of that nature by her conduct i.e. was her intention was to show them the ship or to show that it was seaworthy Probably not.

63 Exceptions to the hearsay rule: Evidence relevant for a non-hearsay purpose (sections 59, 60) First-hand hearsay (sections 63-68) Contemporaneous statements about a person s health (section 66A) Business records (section 69) Tags and labels (section 70) Electronic communications (section 71) Aboriginal and Torres Strait Islander traditional laws and customs (section 72)

64 Exceptions to the hearsay rule: Marriage, family history or family relationships (section 73) Public or general rights (section 74) Use of evidence in interlocutory proceedings (section 75) Admissions (section 81) Representations about employment or authority (section 87 (2)) Exceptions to the rule excluding evidence of judgments and convictions (section 92 (3)) Character and expert opinion about accused persons (sections 110 and 111).

65 Exceptions to the hearsay rule: 61 - Exceptions to the hearsay rule dependent on competency (1) This Part does not enable use of a previous representation to prove the existence of an asserted fact if, when the representation was made, the person who made it was not competent to give evidence about the fact because of section 13 (1). (2) This section does not apply to a contemporaneous representation made by a person about his or her health, feelings, sensations, intention, knowledge or state of mind. Note : For the admissibility of such contemporaneous representations, see section 66A. (3) For the purposes of this section, it is presumed, unless the contrary is proved, that when the representation was made the person who made it was competent to give evidence about the asserted fact.

66 Exceptions to the hearsay rule: 62 - Restriction to first-hand hearsay (1) A reference in this Division (other than in subsection (2)) to a previous representation is a reference to a previous representation that was made by a person who had personal knowledge of an asserted fact. (2) A person has personal knowledge of the asserted fact if his or her knowledge of the fact was, or might reasonably be supposed to have been, based on something that the person saw, heard or otherwise perceived, other than a previous representation made by another person about the fact. (3) For the purposes of section 66A, a person has personal knowledge of the asserted fact if it is a fact about the person s health, feelings, sensations, intention, knowledge or state of mind at the time the representation referred to in that section was made.

67 Exceptions to the hearsay rule: X represents to M - M is witness of representation. (1 st hand) X represents to M who represents to L - L is a witness of representation. (2 nd hand)

68 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) (b) Notes : evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made, or 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. 1 Section 67 imposes notice requirements relating to this subsection. 2 Clause 4 of Part 2 of the Dictionary is about the availability of persons.

69 Dictionary Pt 2, 4 - Unavailability of persons (1) For the purposes of this Act, a person is taken not to be available to give evidence about a fact if: (a) (b) (c) (d) (e) (f) the person is dead, or the person is not competent to give the evidence about the fact, or it would be unlawful for the person to give evidence about the fact, or a provision of this Act prohibits the evidence being given, or 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 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.

70 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) (b) evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made, or 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. Note : Section 67 imposes notice requirements relating to this subsection. Section 68 is about objections to notices that relate to this subsection.

71 64 - Exception: civil proceedings if maker available (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) (b) that person, or a person who saw, heard or otherwise perceived the representation being made. (4) A document containing a representation to which subsection (3) applies must not be tendered before the conclusion of the examination in chief of the person who made the representation, unless the court gives leave. Note : Clause 4 of Part 2 of the Dictionary is about the availability of persons.

72 Caterpillar Inc. v John Deere Limited (No 2) (2000) (KOP [7.100]) Patent infringement tractors. Wanted to admit expert evidence in depositions taken in an North American case concerning an North American expert. Relied on s 63(2) or 64(2). Issued s 67 notice. 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 Dictionary s 4(1)(e) [19]. Re Dictionary s 4(1)(f) [20].

73 Caterpillar Inc. v John Deere Limited (No 2) (2000) (KOP [7.100]) In relation to s 63(2): Wrote to him and asked him to come to Australia to give evidence in the case. The expert did not respond. Did not appear to offer to pay his expenses and professional fees. It was not the expert s job to start these negotiations Did not seek to make contact with him in other ways Caterpillar was a big client of his not surprising that he did not respond Steps taken were insufficient therefore available

74 Caterpillar Inc. v John Deere Limited (No 2) (2000) (KOP [7.100]) In relation to s 64(2) relevant factors included: i. Actual cost of securing witness. ii. iii. A comparison of that cost with value of stake in litigation. Assessment of importance of the witnesses evidence. Here no details of (i) or (ii) Here, the nature of the litigation (major patent case which often involves witnesses from Northern Hemisphere) and apparent expense that the parties were going to prosecute the litigation, suggest that litigation of significant value His evidence seemed important Expense to get him not disproportionate therefore not undue.

75 67 Notice to be given Admissibility hearsay (1) Sections 63 (2), 64 (2) and 65 (2), (3) and (8) do not apply to evidence adduced by a party unless that party has given reasonable notice in writing to each other party of the party s intention to adduce the evidence. (2) Notices given under subsection (1) are to be given in accordance with any regulations or rules of court made for the purposes of this section. (3) The notice must state: (a) the particular provisions of this Division on which the party intends to rely in arguing that the hearsay rule does not apply to the evidence, and (b) if section 64 (2) is such a provision-the grounds, specified in that provision, on which the party intends to rely.

76 67 Notice to be given Admissibility hearsay (4) Despite subsection (1), if notice has not been given, the court may, on the application of a party, direct that one or more of those subsections is to apply despite the party s failure to give notice. (5) The direction: (a) is subject to such conditions (if any) as the court thinks fit, and (b) in particular, may provide that, in relation to specified evidence, the subsection or subsections concerned apply with such modifications as the court specifies. See also: Evidence Regulations 2015 (NSW) Reg 4 for details required in s 67 notice.

77 68 Objections to tender of hearsay evidence in civil proceedings if maker available (1) In a civil proceeding, if the notice discloses that it is not intended to call the person who made the previous representation concerned because it: (a) would cause undue expense or undue delay, or (b) would not be reasonably practicable, a party may, not later than 21 days after notice has been given, object to the tender of the evidence, or of a specified part of the evidence. (2) The objection is to be made by giving to each other party a written notice setting out the grounds on which the objection is made. (3) The court may, on the application of a party, determine the objection at or before the hearing.

78 68 Objections to tender of hearsay evidence in civil proceedings if maker available (4) If the objection is unreasonable, the court may order that, in any event, the party objecting is to bear the costs incurred by another party: (a) in relation to the objection, and (b) in calling the person who made the representation to give evidence. Note : This subsection differs from section 68 (4) of the Commonwealth Act because of the different way costs are ascertained by NSW courts

79 The Council of the NSW Bar Association v Franklin [2014] NSWCA 329 (KOP [7.110]) Barrister convicted of 4 assaults/sexual assaults. Went to gaol. Bar Association tried to strike him off and wanted to prove his conduct (not just fact of conviction) by tendering the transcript of the evidence of the victim and other witnesses in the criminal trial. Sought a pre-trial ruling under s 192A. Sought an order under s 190, that the hearsay rule in s 59 not apply to these transcripts because the matters were not in genuine dispute or calling for the witnesses would cause undue delay or expense. Bar Association also issued s 67 notices, referring to s 64(2) the makers were all available. The Court dealt with this first.

80 The Council of the NSW Bar Association v Franklin [2014] NSWCA 329 (KOP[7.110]) The s 67 notices complied with r 4 of the Evidence Regulations. Would it be not reasonably practicable to call the victim because of her mental condition? A psychiatrist s report said that appearing would negatively affect her psychiatric stability: PTSD and anxiety. Court held that it would not be practicable to call her because of her infirmity and it might be inferred that she was unwilling to give evidence (also don t forget her cross-examination went in as well). All but one of the other witnesses lived out of Sydney and would have to stay overnight. Their previous evidence was on oath and they were available for cross-examination at the criminal hearing (not much was done). The XXM is part of the tender.

81 The Council of the NSW Bar Association v Franklin [2014] NSWCA 329 (KOP[7.110]) The evidence on application did not show any basis that their evidence is challenged for veracity or reliability to the extent that it is directed to facts that were not essential to the convictions.? Therefore satisfied that it would cause undue delay to call them. Ruling under s 192A that s 64(2) applies and therefore hearsay rule does not apply to the transcript.

82 Other examples of non-availability: Admissibility hearsay Lack of memory does not mean incompetence and therefore unavailability Brown v The Queen [2006] NSWCCA 69. But maybe where physical or mental problem caused amnesia. R v Nona [2015] ACTSC 175 Where mental condition is such that will suffer significant mental adverse consequences if he/she testifies. R v Nona [2015] ACTSC 175 If a subpoena was served by pros in criminal trial but the person then left the country to avoid it, all reasonable steps had been taken Puchalski v The Queen [2007] NSWCCA 220 If a witness is called but refuses (notwithstanding threat of contempt) the paragraph is satisfied R v Suteski (2002) 128 A Crim R 275. The paragraph is satisfied if s 18 applies to the witness. DPP v Nicholls (2010) 204 A Crim R 306.

83 65 Exception: criminal proceedings if maker not available (1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.

84 Section 65 (2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation was: (a) (b) (c) made under a duty to make that representation or to make representations of that kind, or made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, or made in circumstances that make it highly probable that the representation is reliable, or (d) was: (i) against the interests of the person who made it at the time it was made, and (ii) made in circumstances that make it likely that the representation is reliable.

85 Section 65 (3) The hearsay rule does not apply to evidence of a previous representation made in the course of giving evidence in an Australian or overseas proceeding if, in that proceeding, the defendant in the proceeding to which this section is being applied: (a) cross-examined the person who made the representation about it, or (b) had a reasonable opportunity to cross-examine the person who made the representation about it. Note : Section 67 imposes notice requirements relating to this subsection.

86 Section 65 Admissibility hearsay (4) If there is more than one defendant in the criminal proceeding, evidence of a previous representation that: (a) is given in an Australian or overseas proceeding, and (b) is admitted into evidence in the criminal proceeding because of subsection (3), cannot be used against a defendant who did not crossexamine, and did not have a reasonable opportunity to cross-examine, the person about the representation. (5) For the purposes of subsections (3) and (4), a defendant is taken to have had a reasonable opportunity to cross-examine a person if the defendant was not present at a time when the cross-examination of a person might have been conducted but: (a) could reasonably have been present at that time, and (b) if present could have cross-examined the person.

87 Section 65 Admissibility hearsay (8) The hearsay rule does not apply to: (a) (b) evidence of a previous representation adduced by a defendant if the evidence is given by a person who saw, heard or otherwise perceived the representation being made, or a document tendered as evidence by a defendant so far as it contains a previous representation, or another representation to which it is reasonably necessary to refer in order to understand the representation. Note : Section 67 imposes notice requirements relating to this subsection. (9) If evidence of a previous representation about a matter has been adduced by a defendant and has been admitted, the hearsay rule does not apply to evidence of another representation about the matter that: (a) is adduced by another party, an (b) is given by a person who saw, heard or otherwise perceived the other representation being made.

88 Section 65 Admissibility hearsay Note: s 65(2) applies to evidence given by a person, so does not apply to a document tendered, at least where there is no evidence given by a person who perceived the representation being made (e.g. written, typed): Conway v The Queen (2000) 98 FCR 204, [153].* On the other hand it has been held that where such a person does give evidence, this provision does not specify the form in which the evidence may be given (thus the document may be adduced through the witness): R v Suteski (2002) 128 A Crim R 275, [34].* Is there an argument that a person sees a representation in an being made when they open it and read it (given s 71)? Perhaps not?? e.g. Police reading giving evidence of PIS that she perceived when interviewing witness.

89 Sio v The Queen [2016] HCA 32 Admissibility hearsay Sio, drove Filihia to a brothel in Clyde. Filihia entered the brothel alone, armed with a knife, intending to commit robbery. During an altercation, Filihia stabbed Gaudry, who worked in the brothel. Gaudry later died from his wounds. Filihia removed from Gaudry's back pocket a pencil case which contained cash and left the brothel, running past Sio's car. Sio caught up with and collected Filihia, and accelerated away from the scene. Both offenders were apprehended by police shortly afterwards. Sio was charged on indictment with the murder of Gaudry and with armed robbery with wounding. Sio was acquitted of the murder of Gaudry, but convicted of armed robbery with wounding. An appeal to the Court of Criminal Appeal was dismissed. The matter was appealed to the High Court of Australia.

90 Sio v The Queen [2016] HCA 32 Admissibility hearsay In the Courts below, there was evidence of a representation by Filihia to the effect that Sio gave him the knife with which he stabbed Mr Gaudry. Filihia gave an ERISP in which he said "[Sio] already had [the knife] in his car" in answer to a question as to where he got the knife. Filihia participated in an identification parade from a photo array in which he identified Mr Sio as the driver of the car. This procedure was also conducted as an ERISP. On the same day Filihia gave two statements and said: "[I]t was [Sio] who put me up to robbing the brothel. He gave me the knife and drove me there.

91 Sio v The Queen [2016] HCA 32 Filihia was called to give evidence on a voir dire, but refused. Objection was taken to the tender of the ERISPs and statements on the basis of hearsay: s 59. The judge held that Filihia was not available (because all reasonable steps had been taken to compel him to give evidence) and therefore admitted the evidence under s 65(2)(d) (and the applied the deeming provision in s 65(7)(b)) as the representation tended to show that Filihia had committed a crime of which he had not yet been convicted. Sio was convicted. This issue was appealed (inter alium). The appeal was dismissed and Sio appealed to the High Court of Australia. Sio argued that the CCA misapplied s 65(2)(d)(ii) by viewing all the statements made by Filihia together, and concluding from his demeanour and the freshness of his recollection that these were circumstances which made it likely that Filihia's representations were reliable.