by Anthony CookPublic Defender1 July 2007
1. A classic definition of hearsay at common law is to be found in
Myers v DPP (1965) AC 1001. It may be summarised as a statement which is tendered as evidence of the truth of its contents.
2. The definition of hearsay in the common law had wider application than now applies under the
Evidence Act. It was not necessary that the out of court statement was made with the intention of asserting the accuracy or truth of the factor asserted. Indeed, if a fact could be inferred from conduct then the hearsay rule potentially operated to exclude evidence of conduct from which an inference of fact could be drawn. The proposition is stated thus in
Phipson on Evidence, 11th Edition at 636:
Again in principle there is no reason why a fact inferred from Y's conduct should be anymore admissible than it would be had it been contained in Y's statement.
3. An example of this may be that a person is seen leaving a room to exit a building whilst he prepares to unfold an umbrella. If an observer gave evidence that he saw that, such evidence may have infringed the rule against hearsay, if it was tendered to prove that it was in fact raining. Such exclusion would operate regardless of the intention of the person holding the umbrella. This may be contrasted with section 59 of the
Evidence Act. Section 59(1) is in the following terms:
Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation.
4. Previous representation is defined in the dictionary to the
Evidence Act as meaning:
A representation made otherwise than in the course of giving evidence in the proceedings in which evidence of the representation is sought to be adduced.
5. Representation is defined in wide terms. It includes express or implied representations, whether oral or in writing, and representations to be 'inferred from conduct'. It also includes representations which are either not intended to be communicated or are not in fact communicated. Presumably examples of the latter would be entries by a person in a personal diary.
6. Thus the example given above of the person exiting a room with an umbrella will only be caught by the hearsay rule if the bearer of the umbrella intended to assert that it was raining. Such an intentional assertion is unlikely to be derived in the ordinary course of events. Accordingly conduct like that would ordinarily not be excluded by section 59.
7. The change was discussed in the High Court in
Lee v The Queen (1998) 195 CLR 594 at 599. The court observed that the Australian Law Reform Commission (report number 26) had considered this issue and determined:
The issue of whether the proposed rules should apply to implied assertions as well as expressed assertions, by recommending that a distinction be drawn between intended and unintended implied assertions, with the latter outside any hearsay rule.
8. The court then observed:
In its Interim Report, the Commission went on to state why it excluded unintended implied assertions from the operation of a hearsay rule and its exceptions. Chief among those reasons was the conclusion that it is unlikely that the person making some implied assertion would deliberately attempt to mislead if the implied assertion was not intended. Section 59 must be understood in this light. The rules operation requires consideration first of why it is sought to lead evidence of something said or done out of court (a previous representation). What is it that 'previous representation' is lead to prove? In particular, is it sought to lead it to prove the existence of a fact that a person who made the representation intended to assert by it? The fact that the statement or the conduct concerned might unintendedly convey some assertion is not to the point. The enquiry is about what the person who made the representation intended to assert by it.
9. It will be noticed that the exclusionary rule in section 59 is triggered, inter alia, by the purpose for which the evidence is tendered. If evidence is tendered for a purpose other than to prove the truth of any assertions within that evidence then it is not prima facie court by section 59. This is apparent from the terms of section 59, as discussed in
Lee. It is made abundantly clear by the inclusion of section 60 in the Act which is in the following terms:
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.
10. Examples are given by the author of
Uniform Evidence Law (7th Edition) of evidence which, whilst admitted for a 'none hearsay purpose' can become evidence of the facts asserted in the evidence. These examples include evidence of a prior consistent or inconsistent statement, (page 205). Authority for the second of those pieces of evidence is cited as being
Lee v The Queen at pages 601, 603 to 604. A close reading of the decision does not necessarily bear this out. The court observed (603):
A common law, a previous inconsistent statement put to a witness was evidence only of the fact that the witness had made an inconsistent statement; it was not evidence of the truth of the contents of that earlier statement. It was evidence that went only to credit. The Law Reform Commission was very critical of this rule which, it said, imposed a 'schizophrenic task' on the tribunal and its recommendations for change of the law must be understood in the light of its trenchant criticism of this aspect of the common law. ...it is then clear that section 60 was intended to work a considerable change to the common law. But there is no basis, whether in the considerations which we have mentioned as having influence the Commission or otherwise, for concluding that section 60 was intended to provide a gateway for the proof of any form of hearsay, however remote.
11. It will be noted in
Lee's case that Mr Calin was alleged to have made a statement that Lee confessed to him. In court Mr Lee gave no evidence that the appellant had confessed and also denied that he had ever made a statement to that effect. Evidence was lead from police officers to posing to the fact that Mr Calin had made the statement which he had signed. This process was conducted pursuant to section 38 of the
Evidence Act. The High Court made this observation as to the process:
It is at odds with the common law because it shifts the focus of the process of proof away from what witnesses say in court that they have seen and observed to what a witness reports that another person earlier said had been heard. And the contention was that the evidence of the reports might be lead in evidence, not because the person who was alleged to have heard the words was called to give evidence, but because that person denied that they had been said. The curiosity of the result can then be seen in stark relief. (603).
12. It appeared to be inherent in the High Court's reasoning that because Mr Calin denied making the statements evidence should not have been called from police officers that he made a statement out of court in which he said the accused had confessed to him. This particular aspect of the decision in
Lee was not the subject of examination in the recent case of
Klein v Regina (2007) NSWCCA 206. In that case a witness gave evidence before a hearing of the Crime Commission to the effect that Mr Klein had made a confession to him. There was no issue about the fact that the witness had indeed stated previously that the accused had confessed. In evidence of the trial the witness said that what he had told the Crime Commission was a lie. He was then cross-examined, pursuant to section 38 of the
Evidence Act about his previous evidence both at the Crime Commission and also on oath at committal proceedings. The evidence, eventually, went to the jury on the basis that it could be used to prove the fact that the appellant had indeed confessed. The Court of Criminal Appeal in
Klein referred to the situations in
Klein as being 'similar'. The court also observed that there was no rational basis for distinguishing the authority of
Lee and accordingly upheld Mr Klein's appeal.
13. The effect of the decision in
Klein would appear to, in my view, limit the use to which prior inconsistent statements can be put if a witness does not adopt them as true in court. It may be however, that the resolution of the extent to which
Lee limits the use of prior inconsistent statements is to be found in the fact that the subject matter of the prior inconsistent statement was a confession. If the subject matter of the prior statement had been the witnesses own observation of an event, then, if admitted during a section 38 cross-examination, such statements may indeed become truth of their assertions as contemplated by section 60.
14. The related issue of the testamentary value of prior consistent statements was considered by the High Court in
Graham v The Queen (1998) 195 CLR 606. In that case, pursuant to section 108 of the
Evidence Act, evidence was omitted of a statement made by a witness six years prior to trial to rebut a suggestion that the evidence given at trial was 'fabricated or reconstructed'; section 108(3)(b). The High Court considered the question of whether section 60 of the
Evidence Act might make such evidence operative to prove the assertions contained within it. The High Court considered this question (at page 610) but considered that this was not an appropriate case for a determination of that issue.
15. The author of
Uniform Evidence Law ventures the following opinions:
If admissible under this provision to support the credibility of the complainant, then, by reason of section 60 it may also be used for a hearsay purpose, again subject to section 136. (457).
16. The next relevant provision is section 65 of the
Evidence Act. This applies in criminal proceedings to previous assertions by an unavailable person. Sub section 2 provides that evidence of the previous assertion (representation) is admissible through a witness who perceived or heard the assertion being made giving evidence of it. In other words such evidence is not precluded by the hearsay rule in section 59. For section 65 sub section 2 to be operative must fall within one of a number of categories listed in (2)a-d. Essentially these matters are matters tending to confirm the truth and reliability of such an out of court assertion.
17. A witness is taken to be unavailable to give evidence about a fact if amongst other things the witness is dead or the witnesses presence cannot be ascertained. It also includes the following:
(If) all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give evidence, but without success.
18. The potential ambit for this aspect of the definition was discussed in
R v Suteski (2002) 56 NSWLR 182. In that case a witness made a record of interview implicating the appellant and himself in a conspiracy to murder. At the time of the trial that witness was serving a prison sentence for his role in the conspiracy. He refused to give evidence or co-operate in anyway with the prosecution even though he risked punishment for contempt. The prosecution tendered the recorded interview between him and police on the basis that he was 'unavailable to give evidence'. The Court of Criminal Appeal dismissed an appeal against conviction on this ground and held that the evidence was properly admissible under section 65 of the
Evidence Act and that the witness did fall within that limb of 'unavailability' in the definition.
19. Under section 65(2)(d) a ground of admissibility is that the statement is 'against the interests' of the mater. In the application for special leave to the High Court in
Suteski (16/12/03) an argument was put that this definition should not be read so as to include the confession of an accomplice, as such persons notoriously seek to minimise their own role and exaggerate that of others. This was unsuccessful.
20. Section 65 of the
Evidence Act requires notice of its intended use to be given by the prosecutor. Such notice has to be 'reasonable notice in writing'. Section 67(4) allows a court a discretion to in effect dispense with the requirements of notice. Plainly the issue of potential prejudice to another party would be a relevant consideration in a determination as to whether or not to dispense with the requirement of notice.
Section 66 of the Evidence Act
21. This provision relates to evidence of out of court assertions made by witnesses who are called in a trial. The dominant consideration is that the assertion must have been made at a time when the events asserted were 'fresh in memory'. This concept was held in
Graham (1998) 195 CLR 606 to mean, 'not deteriorated or changed by lapse of time'(par. 410). Generally this may be taken to mean, except in extraordinary cases involving unforgettable events, that contemporaneity is the most important factor in a consideration as to whether an out of court assertion was 'fresh' in memory.
22. The provision is not limited to one witness saying what another witness told them about an event. A witness can narrate his own out of court assertion if it satisfies the requirements of section 66.
23. Thus if the alleged victim of a sexual assault immediately after the event calls a friend and tells that friend that he or she has been sexually assaulted by the accused, then that may become evidence of the facts asserted within it. Section 66, unlike section 65 has no notice requirement.
Warnings, Limitations and Exclusions
24. Evidence which is admitted as an exception to the hearsay rule (section 59
Evidence Act) comes within the categories of evidence to which section 165 of the
Evidence Act applies. This is pursuant to section 165 (1)(a). Such a warning would include drawing attention to the fact that such statement was not made on oath in a court environment and may not be fully subject to cross-examination.
25. Section 136 of the
Evidence Act gives a court a power to limit the use to which evidence may be put. Thus where evidence is admitted because it does not infringe the hearsay rule because of the operation of section 60 there may be grounds for arguing for a direction under section 136 that it not be used for a 'hearsay purpose'. That is that it not be used as evidence of the facts asserted or implied in it. For example, in
Klewer v Walton (2003) NSWCA 308 Hodgson JA observed:
In my opinion in a criminal prosecution it would be wrong to give effect to hearsay evidence pursuant to section 60 of the Evidence Act, when that evidence could be admitted only initially as going to the credibility of a witness who gave no other relevant evidence.
26. There may also be arguments that where there is a danger of such evidence being used for a hearsay purpose it may be excluded in the exercise of either of the powers in section 135 or 137 of the
Evidence Act. It was argued in
Suteski, in a slightly different context, that the evidence of the particular witness should have been excluded because he was in effect no ability to cross-examine as the witness refused to give any evidence at all. The court decided in that case that the danger of any 'unfair prejudice' could be addressed by appropriate directions.
27. Plainly in any case where hearsay evidence is to be admitted consideration should be given to seeking exclusion, limitation or directions as to unreliability. It is particularly important in relation to evidence tendered pursuant to section 108(3) that attention be given to section 136. Such evidence of prior consistent statements may involve statements which are by no means 'fresh' when made. If not limited, such statements may nonetheless be used as evidence of the assertions contained within them. See
R v DBG (2002) 133 A Crim R 227 at 241.
Anthony CookPublic Defender1 August 2007