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Chapter 2 – Hearsay & Exceptions to Hearsay Rule Essay

Lee v R: Lee was indicted was on a charge of assault of Patricia Jones with intent to rob whilst armed. Mr. Calin gave evidence in a written statement stating that the appellant said to him that he fired two shots but during trial he said he did not recall saying that. The trial judge ruled that there was evidence from which the jury could conclude that Mr.Calin had made the statement. The statements made by Mr.Calin were of two kinds: He gave an account of what he had seen and done: “I was walking up the street near Hyatt”…

“I saw this bloke…he walked past me and I saw he was sweaty and that.” This is directly relevant to fact in issue because he was near to the scene of that time. Representation made (Lee to Calin) and (by Calin to the Police): It recorded matters that appear to have been intended to explain events: “I lent him $80 dollars to help him with rent.” It recorded the conversation he had had with the appellant, part which P contended amounted to an admission: “…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.”

The statement clearly intended to assert that he had seen and said those things and that Lee said that ‘Lee has done a job.’ It goes to credibility purpose when he denied saying that in trial. Calin’s representation out of court that he had seen these things was hearsay because he intended to assert what he had seen. The counsel made an application to cross examine Calin (s38: cross examine unfavourable witness) as Calin did intend to make the assertions that he saw Lee running in sweaty conditions and that he said that he had done a job and not that he had done the job. Because his representation out of court was relevant for the purpose of showing that he had made a prior statement that was inconsistent with his evidence in court, the hearsay rule did not apply.

What is encompassed within an intended assertion?
It is required that the person who made the representation intend to assert the existence of that fact thus unintended inferences are not covered by the hearsay rule under the Acts.

However, where the implied assertions available from a previous representation are ambiguous, or potentially contrary to the declarant’s actual frame of mind, they would be caught by the relevance and by the discretionary ground in ss135 and 137. R v O’Grady provides an example of a case where an implied assertion of fact was found by the court to have been intended. O’Grady was charged with murder by shooting. His case was that at the time of the shooting he was not in control of his own actions. The impugned evidence that he sought to adduce consisted of statement he had made during a conversation with his sister about a month after the alleged offence occurred.

Hulme J held that this statement contained implied intended representations that the accused’s shooting of the deceased did not proceed from a voluntary act or that it was done when the accused was suffering from abnormality of mind therefore it is excluded from hearsay rule. In Hannes, D was prosecuted for insider trading that was based on evidence of transactions carried out in the name of Mark Booth. The defendant claimed that Booth was the guilty party. P’s case was that Hannes was Booth. No person named Mark Booth participates in the trial. Issue concerns admissibility of assertions in the document, the original of which had arguably been written by Hannes. The statement contained a lot of assertion that “Mark exist”.

A memo that he written to himself intended to assert that Mark was a real person. The statement “I did not give him any insider information” is intended to assert the proposition it contains and accordingly excluded by s59. The statements “Mark not guilty of insider trading”, “He may not be telling the truth”, “after my conversations with Mark”, “But must take Mark with me to ASC” and “Vital Mark be there” are not ‘intended’ to assert that there was a syndicate partner of that name thus may be admissible.

The judge held that the above representation were relevant to the issue by way of implied assertion that a person call Mark was relevantly connected with the event. This implied fact was necessary encompassed within the intended representation about the need to take Mark to the ASIC etc. As Mason CJ in Walton v The Queen noted that “An implied assertion is one which can be inferred or implied from a statement or from conduct, and will generally not be deliberately intended by the author.”

(c) ‘made by a person’
The hearsay rule applies only to previous representation made by human beings. O’Meara v Dominican Fathers: Issue is whether blood alcohol level produced by machine is admissible. Gyles and Weinberg JJ explained this precondition in s59 in the context of admissibility of machine generated information. Their Honours held that the source of the asserted fact must be traces and if it is found that it was machine generated, then the hearsay rule will have no application, but if it is found that it was recorded or interpreted by a person, then the rule will apply (not admissible). In determining this matter, the facilitation of proof provisions in ss146, 147 and 183 will be relevant.

Hearsay is a purposive/broad rule – what does this mean?
Lee v R: the hearsay rule is concerned only with previous representation relied upon the maker to prove of the existence of a fact asserted in the representation Where a previous representation is relevant and admissible for a non-hearsay purpose, the term used to describe it is original evidence. The application of s55 test of relevance is crucial when seeking to determine the purpose for tendering evidence of a previous representation Subramanian v Public Prosecutor: D charged with possession of ammunition and in defence, D claimed that he was captured by terrorists and was working under duress.

The dispute evidence was that he told the court that the communists captured him and that he was not allowed to go home. It is relevant as it shows that he was acting under duress. He wasn’t trying to prove that the maker was a communist but to prove that he believed that the other bloke was a communist. It is relevant to show that he had acted in fear of his life. D only repeating the representation to prove what the terrorists had said and not the truth of the fact. This is relevant to D’s believes as his state of mind was relevant if he acted under duress. COA allows the evidence to be admitted on the basis that the conversation would be hearsay only if the purpose of submitting the evidence was to prove the contents of the statements.

Walton v R.: Mason CJ noted that evidence of a relevant out-of-court statement is admissible evidence of the maker’s knowledge or state of mind when he made the statement in a case where such knowledge or state of mind is a fact in issue or a fact relevant to a fact in issue. A person’s statements or declarations are an accepted means of proving his intentions in circumstances where it is material to prove what those intentions were.

Non -hearsay relevance of a previous representation
How might out of court statements (previous representations) be used in a non-hearsay way so as to avoid the hearsay rule, ie when are out of court statements original evidence rather than hearsay? Evidence of a previous representation that is used for a purpose other than ‘to prove existence of (an intentionally asserted) fact’ is not caught by hearsay rule (s59). The non-hearsay relevance may lie in the fact that particular words were spoken or that representation was made at a certain time, in a certain place or in a certain context.

The relevance is quite apart from whether the representation proves the existence of an asserted fact. S60 applies where evidence is relevant for both non-hearsay and a hearsay purpose. Where evidence of a previous representation is relevant and admitted for a non-hearsay purpose, it can be used also for a hearsay purpose, which is to prove the truth of its content. In such situation, the hearsay rule does not apply to the evidence. R v Suteski (No 4): Ms Suteski was charged with murdering Mr P.

The prosecution alleged that Mr P had been killed by W, who had been recruited by Witness B, who in turn had been asked by Ms S to assault Mr P so that she can complete the embezzlement. The issue was the admissibility of a video recording of an interview by police with Witness B, who subsequently pleaded guilty but refused to give evidence against Ms S.

This evidence tendered to prove that those words were said. Kirby J held that Witness B’s description in the interview of events in which he was a participant, or witnessed, was not hearsay. Where the related what was said to him, his statement may or may not have been hearsay. In circumstances where Witness B repeated to the police assertions of fact by someone else, and where the only relevance of such evidence was the fact asserted, it is hearsay.

Its repetition by police officer, when giving evidence of the interview, would involve second-hand hearsay. However, the case is Witness B was relating to the police the words of Ms S in respect of the request said to have been made by her, such word were not hearsay. Rather, they were description of what occurred: what used to be described as verbal acts or operative words. Their repetition by the police when giving evidence of the interview (through the tender of tapes) was first-hand hearsay.

Transactional words
An oral contract is formed by a verbal offer and acceptance, and a gift can be effected by uttering words of gift while handling the chattel to the donee. The words have no truth value; their legal force is that they constitute or form part of a transaction. R v Macraild: The accused was charged with possession a prohibited drug for the purpose to supply. The accused case is that he had possession of the drug for some purpose other than supply.

The issue is whether the evidence of a recorded phone call to sell drugs is admissible. Held: The telephone conversations were tendered, not as evidence of any previous representations to prove the existence of facts the persons intended to assert by such representations, but as evidence of the making of the agreement for sale (comprised transactional words which is original evidence), and to that extent they were not hearsay within s59(1) Evidence Act 1995.

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