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What is Hearsay?
- Assertions, oral or in writing, made out of court are regarded as Hearsay
- Lord Wilberforce; Subramaniam [1956] 1 WLR 965,
970:
- "Assertions other than one made by a person
while giving oral evidence in the proceedings is
inadmissible as evidence of any fact asserted".
- "Assertions other than one made by a person
while giving oral evidence in the proceedings is
inadmissible as evidence of any fact asserted".
- As per Mason CJ in Walton (1989) 166 CLR 283:
- As per Mason CJ in Walton (1989) 166 CLR 283: 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.
- As per Mason CJ in Walton (1989) 166 CLR 283: 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.
- Lord Wilberforce; Subramaniam [1956] 1 WLR 965,
970:
- Rational for Hearsay?
- Lord Normand: Teper v
The Queen (1952) 1 AC
480
- (1) It is not the best evidence and (2) it is not
delivered on oath. The (3) truthfulness and accuracy
of the person whose words are spoken to by another
witness cannot be tested by cross‐examination, and
(4) the light which his demeanour would throw on his
testimony is lost.
- (1) It is not the best evidence and (2) it is not
delivered on oath. The (3) truthfulness and accuracy
of the person whose words are spoken to by another
witness cannot be tested by cross‐examination, and
(4) the light which his demeanour would throw on his
testimony is lost.
- Lord Normand: Teper v
The Queen (1952) 1 AC
480
- Purpose of hearsay?
- Applies t p both prosecution and Defence
- R v Turner (1975)
61 Cr App R 67.
- Myers v DPP [1965]1 AC 100
- If the only relevance is the
truth of the facts contained
in the assertion and it is
being tendered to prove
those facts the assertion
will be inadmissible
hearsay
- If the only relevance is the
truth of the facts contained
in the assertion and it is
being tendered to prove
those facts the assertion
will be inadmissible
hearsay
- R v Turner (1975)
61 Cr App R 67.
- Applies t p both prosecution and Defence
- Sccope (applies to)
- (i) Express assertions ‐ verbal,
non‐verbal/conduct and
written
- (ii) Implied assertions: R v
Walton (1989) 166 CLR 283,
292-293 and 303-304; R v Benz
(1989) 168 CLR 110, 118 and
143; R v Pollitt (1992) 174 CLR
558, 566-567, 595 and 620 and
R v Rose (2002) 55 NSWLR 701
clearly extend the rule to
so-called implied hearsay.
- (iii) But the hearsay rule does not apply to
machine generated representations or animal
communications: Rook v Maynard (1993) 126
ALR 150
- (iii) But the hearsay rule does not apply to
machine generated representations or animal
communications: Rook v Maynard (1993) 126
ALR 150
- (ii) Implied assertions: R v
Walton (1989) 166 CLR 283,
292-293 and 303-304; R v Benz
(1989) 168 CLR 110, 118 and
143; R v Pollitt (1992) 174 CLR
558, 566-567, 595 and 620 and
R v Rose (2002) 55 NSWLR 701
clearly extend the rule to
so-called implied hearsay.
- (i) Express assertions ‐ verbal,
non‐verbal/conduct and
written
- UEA
- S 59
- S 60
- S 60
- S 59
- Exceptions To hearsay
- Common Law
- Statutes
- Res Gestae (likelyhood evidence could not have been made up)
- admissibility
of evidence
by reason of
its
overwhelming
relevance
and
reliability
- enables evidence to be received as truth of its
contents even though it may infringe one or
more of the exclusionary rules
- enables evidence to be received as truth of its
contents even though it may infringe one or
more of the exclusionary rules
- Four main heads of the doctrine
- R v O'Leary (1946) 73 CLR 566; Incidents or
events regarded as part of the transaction in
issue.
- Statements made by a person as to his or her
contemporaneous physical sensations or
general state of health; Ramsay v Watson
(1961) 108 CLR 642; R v Perry (No. 2) (1981) 28
SASR 95, 96-98; UEA s72.
- UEA s 72; Statements made by a
person as to his or her state of emotion or
belief.
- Vocianso v Vociasno; Armstrong v State of
Western Australia; Spontaneous statements
made by participants in or observers of an event
in issue.
- UEA s 65(2)(b)
- UEA s 65(2)(b)
- Vocianso v Vociasno; Armstrong v State of
Western Australia; Spontaneous statements
made by participants in or observers of an event
in issue.
- UEA s 72; Statements made by a
person as to his or her state of emotion or
belief.
- Statements made by a person as to his or her
contemporaneous physical sensations or
general state of health; Ramsay v Watson
(1961) 108 CLR 642; R v Perry (No. 2) (1981) 28
SASR 95, 96-98; UEA s72.
- R v O'Leary (1946) 73 CLR 566; Incidents or
events regarded as part of the transaction in
issue.
- admissibility
of evidence
by reason of
its
overwhelming
relevance
and
reliability
- EA ss 45, 47, 52, 53.
- UEA; ss 63, 64, 66, 69, 70, 71, 72, 73, 74, 92,93.
- UEA; ss 63, 64, 66, 69, 70, 71, 72, 73, 74, 92,93.
- R v Keogh (No. 3) (2014) 121
SASR 410 [12-18] Stevens v CSR
Ltd [2015] SADC 57 Technilock
(Aust P/L) v Mondami [1999]
SASC 320
- Res Gestae (likelyhood evidence could not have been made up)
- Admissions/Confessions
- Declarations against interest:
Sussex Peerage (1844) 8 ER 1034
- Declarations in the Course of Duty/Public or General
Rights/as to Pedigree (including statements as to close
family relationships): R v Benz (Mason CJ)
- Dying Declarations . R v Hope [1909]/
- Post‐Testamentary Declarations of Testators
Concerning the Contents of Their Wills
- Statements of Testators in Testator's Family Maintenance
Proceedings
- Statements in Public Documents.
- Confessions against penal interest made by a suspect
- Confessions against penal interest made by a suspect
- Statements in Public Documents.
- Statements of Testators in Testator's Family Maintenance
Proceedings
- Post‐Testamentary Declarations of Testators
Concerning the Contents of Their Wills
- Dying Declarations . R v Hope [1909]/
- Declarations in the Course of Duty/Public or General
Rights/as to Pedigree (including statements as to close
family relationships): R v Benz (Mason CJ)
- Declarations against interest:
Sussex Peerage (1844) 8 ER 1034
- Statutes
- Inherently Reliable Evidence
- As per Mason CJ and
Deane J in Walton;
Hearsay might be
admitted as truth of its
contents if it was
uttered or expressed in
circumstances
suggesting its inherent
reliability.
- This is not a firm or settled basis
for any exceptions as stated in R
v Bannon (1993) 185 CLR 1;
Myers v DPP [1965] AC 101; R v
Baker (2012) 289 ALR 614
(especially Heydon J).
- S 65 (2) (c).
- S 65 (2) (c).
- This is not a firm or settled basis
for any exceptions as stated in R
v Bannon (1993) 185 CLR 1;
Myers v DPP [1965] AC 101; R v
Baker (2012) 289 ALR 614
(especially Heydon J).
- As per Mason CJ and
Deane J in Walton;
Hearsay might be
admitted as truth of its
contents if it was
uttered or expressed in
circumstances
suggesting its inherent
reliability.
- Common Law
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