by Andrew Haesler SCDeputy Senior Public Defender NSW
A paper presented to The Children's Legal Service Annual Conference 31 May 2009
To state the obvious, before a Court can determine an issue it must know what the issue is and what facts and law apply to that issue. Courts require evidence to do this. A key job for the advocate is to have the Court consider all the evidence relevant to their case and to exclude from the Court's consideration any damaging inadmissible or irrelevant evidence tendered by their opponent.
The Children's Court may operate with less formality than most courts, nonetheless like all courts in New South Wales the
Evidence Act 1995 NSW The
Act. References to sections in the paper refer to the
Evidence Act 1995 NSW unless otherwise noted. applies. Sentencing proceedings are special (s 4(1)). Before the
Act applies to sentencing procedures, a formal direction must be given (s 4(2)). The direction must be made on application by a party or if the court believes that proof of a fact is, or will be, significant in determining the sentence to be imposed (s 4(3)) the court must make a direction if the court considers it appropriate to make it in the interests of justice (s 4(4)). Like most courts, evidence in the Children's Court is predominantly given by oral testimony and by what is set out in documents and, increasingly, visual recordings.
If courts are to decide important questions relating to a person's rights, liberty or property it is essential that they have access to the best and most reliable evidence. One significant way of assessing whether evidence is reliable is to have it delivered in court where it can be tested by cross-examination and assessed by the magistrate, judge or jury. The ultimate fact finding aim of the court, if not always the advocate, is to get to the truth of what occurred.
Most evidence relates to what a witness saw, heard, or otherwise perceived. Once a witness starts recounting what they were told by someone else bells should start to ring. Is this evidence hearsay? Is it admissible? If admissible, for what purpose can the evidence be used?
In order to assess past events it is essential that those events be recounted in court. However, when it comes to assessing the truth of what done and said an important distinction is made between what flows directly from what a witness said and what can be inferred from their testimony.
Obviously anything said in court may have some weight when it comes to assessing the truth of what actually happened. What needs to be asked is: does the representation of the past event, as delivered in court, merely recount what was said and done or does it go further and represent the truth of what was intended to be asserted at the time?
For example, where a witness wants to convey to the court that they were robbed it is essential that they say:
The statement has high testamentary value as it establishes the key elements of the crime of robbery. The evidence is led to establish what the accused did and said and what the victim's responses were. It is not direct evidence of the truth of what the robber said - that he intended to kill the victim or even that he had a knife. To use the evidence of this out of court representation for those purposes would be to rely on a
hearsay assertion. Further, if the witness said,
'Andrew told me John was the robber' that too would be a hearsay assertion. In both cases the original witness could not assert that what they were told was in fact true all they could say is what they were told.
Four key terms crop up when hearsay evidence is considered: 'fact in issue'; 'relevant evidence'; 'out of court representation' and 'unavailable witness':
A fact in issue was explained by the ALRC (ALRC 26 Vol 1 para 641, n3) as:
Relevant evidence is explained in section 55
Evidence Act, s 55, as:
Out of court representation. As someone who learnt their law prior to the introduction of the
Evidence Act, I find the term 'representation' a bit awkward. For all intents and purposes it means 'statement'. That 'statement' however can take many forms it can be express or implied, be inferred from conduct (even conduct captured on CCTV or photographs): it may never have been intended to be seen or communicated. I often find it easier to substitute the word 'statement' wherever 'representation' appears. An out of court representation involves the witness saying what someone else told them, or what they perceived or picked from something they read, saw or heard someone else do.
Unavailable witness. A person is taken to be available to give evidence about a fact unless; they are dead, or not competent or it would be unlawful for the person to give evidence about the fact, or prohibited by law from giving the evidence or all reasonable steps have been taken, to find the person or to secure his or her attendance, but without success, or all reasonable steps have been taken to compel the person to give the evidence, but without success (Dictionary, Part 2 clause (4)).
WHAT IS HEARSAY?
Hearsay is an out of court representation or statement. For the purpose of legal proceedings it is given an extended meaning: Hearsay evidence is an out of court representation or statement tendered in court as evidence of the truth of its contents. Hearsay thus involves two notions:
b) its tender as evidence of the truth of what was said.
WHAT IS FIRST, SECOND OR REMOTE HEARSAY?
First hand hearsay: W gives evidence about events they have personal knowledge of. Personal knowledge involves what was or might reasonably be supposed to have been based on something the person saw, heard or otherwise perceived, other than what they we told by someone else (s 62(2)). It includes their knowledge or state of mind or feelings, and intention at the time (s 62(3): for example: I heard my friend say 'John just hit me and it hurt'.
Second hand hearsay: When W's evidence relates to what they were told by someone who themselves had personal knowledge of the events: for example;
'Mary told me Max told her he robbed the bank'.
Remote hearsay: When W's evidence relates to what B told W, C or others even more remote had personal knowledge of: for example
'John told me Andrew had told him Max robbed the bank'.
WHAT IS THE HEARSAY RULE?
This is set out in s 59(1) of the
The rule against hearsay is a rule preventing the admission of evidence of previous representations made out of court, which is tendered as evidence of its truth. To put it another way, evidence of a statement made out of court is not admissible to prove the truth of what was said.
Papakosmas v The Queen (1999) 196 CLR 297 at , Gaudron and Kirby JJ noted, that, as a matter of logic, a statement made outside of court is:
Whether a statement is probative depends of course on the circumstances in which the statement is made.
Papakosmas at  and Odgers at [1.3.120]
WHY HAVE A HEARSAY RULE?
The Australian Law Reform Commission noted recently (ALRC Report 102
Uniform Evidence Law) that the retention of an exclusionary rule for hearsay evidence was justified because:
there is usually an absence of testing by cross-examination;
the evidence may not be the best evidence;
there are dangers of inaccuracy in repetition;
there is a risk of fabrication;
to admit hearsay evidence can add to the time and cost of litigation; and
to admit hearsay evidence can unfairly catch the opposing party by surprise. (at [7.09]).
WHY NOT EXCLUDE ALL HEARSAY?
Hearsay is often essential to any sensible narrative or exposition of events.
Why have exceptions? There are many situations were it is necessary that hearsay evidence be admitted in order to give a proper account of what occurred. However, at a certain point, hearsay loses any reliability when it comes to proving a fact in issue. The question is: where to draw the line? Where the line is drawn depends on the category of exception into which the hearsay falls.
How do we distinguish between hearsay that is reliable and hearsay which does not help to prove a fact in issue? We use rules set out in the
Evidence Act. Some of these rules are restatements of the common law and make common sense. Others came in to the law with the
Evidence Act in 1995. The ultimate aim is to allow the tribunal of fact to have as much relevant evidence before it as possible in order to determine the truth of what occurred.
What about fairness and prejudice issues? In criminal matters where a person's liberty may be at stake, rules are set out which allow a court to restrict or exclude unfairly prejudicial evidence. Section 135, 136 and 137 govern such questions. They are not the subject of this talk. If hearsay evidence is admitted, a party can, ask pursuant to s 165(2) that the court warn a jury that hearsay evidence may be unreliable and to be cautious in accepting it and in giving weight to it (s 165 (2)). Again s 165 is not the subject of this talk.
EXCEPTIONS TO THE HEARSAY RULE
Like every rule there are exceptions. In the
Evidence Act the exceptions fall into a number of categories; evidence which is tendered but not ostensibly relevant for a hearsay purpose; the first hand hearsay exceptions; other exceptions, and admissions.
Exception 1 - not relevant for a hearsay purpose
Section 60 is perhaps the most controversial section in the Act:
(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. An admission might still be admissible under section 81 as an exception to the hearsay rule if it is 'first-hand' hearsay: see section 82.
Section 60 was amended recently following ALRC Report 102. 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. Subsection (3) was inserted to preserve what was said in
Lee but only so far it relates to admissions.
The new s 60 is quite clear. If evidence is properly admitted for a non-hearsay purpose any evidence in it can be used even if it would otherwise be excluded as hearsay by the hearsay rule. Thus if in a medical report a Doctor, in order to explain a treatment or an opinion, recounts what their patient told them, what the patient said is admissible as evidence of the truth of what the patient said or did.
Only if what was said or did is an admission will the rule apply and the evidence will be excluded. This can be explained by the facts of
Lee itself. C told police on the day of a robbery he saw Lee, and that Lee told him
'don't bother me I have just done a job. I fired two shots'. At trial C, despite being cross-examined, denied any recollection of speaking to police and making the statement. The Crown were allowed to tender C's statement. The appeal was allowed. Section 60 allowed the police to say what C told them he saw and heard (first hand hearsay) but it did not extend to evidence of the truth of the second-hand hearsay given by police about what Lee told C - as C had no personal knowledge that Lee had 'just done a job' and 'fired two shots'.
The new s 66(3) to an extent goes further than
Lee. First hand evidence of an admission, if admitted pursuant to s 60(1), for a non-hearsay purpose may not be used to prove the truth of the admission. Odgers at [1.3.950]. The report is not able to be tendered That being said hearsay admissions can still be admitted but the mechanism is found in s 81. To give an example: if the CCA grant a retrial but it appears that the client has made an admission in a JJ report. The Report cannot be tendered. The Crown could however call the JJ officer and subject to section 135,137 or 138 exclusion the admission would be admissible.
Prior to 2009 relevant evidence that would otherwise have been excluded by s60 could be admitted if it was also tendered as credibility evidence. This was despite the fact it would also have been inadmissible by operation of the credibility rule (
Adam v The Queen (2001) 207 CLR 96. This odd result has been reversed by the new s 101A. Evidence which offends the credibility rule in s102 is not admissible simply because it may be relevant for some other purpose.
Exception 2 - First hand hearsay
An exception to the hearsay rule allows first hand hearsay if the maker of the representation is
not available (s 65) and in certain circumstances if the maker
is available (s 66) and if the representation is a contemporaneous statement about the person's health of feelings (s 66A).
Maker unavailable: The first step is to read s 65 and a commentary on it. The second step is to make sure the witness is in fact unavailable. An example of where a judge got it wrong can be found in
R v Tan  NSWCCA 332. Section 65 then allows first hand hearsay if the prior representation was made under a duty to make it, or was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, or was made in circumstances that make it highly probable that the representation is reliable, or was either against the interests of the person who made it at the time it was made, and made in circumstances that make it likely that the representation is reliable.
A classic example comes from
R v Suteski (2002) 128 A Crim R 275. My client S was a co-offender. He took part in an ERISP. What he said was against his interests. It implicated Ms Suteski. He pleaded guilty. Ms Suteski went to trial. S was called as a Crown witness. At the trial he refused to go anywhere near the witness box. He was found to be 'unavailable' and parts of his ERISP implicating
Suteski were played to the jury. In
R v Suteski (2002) 56 NSWLR 182, Wood CJ at CL noted that s 65(2) assumes that the maker of the representation is 'not available'
As Stephen Odgers reminds us, even if admissible pursuant to s 65 the discretionary exclusions in s 135, 137 remain available. Odgers at [1.3.2139].
Section 65(8) reminds us that the defence too can use s 65 to put before a court evidence first hand hearsay from an unavailable witness but with fewer restrictions than are placed on the prosecution. The only catch is that s 65(9) allows the prosecution to respond and contradict what was tendered similarly without the restrictions in s 65(2).
Maker available: Where a person is called to give evidence, they can give evidence which is first hand hearsay if the second hand fact they assert was fresh in the memory of the person who made it.
The classic example is the complainant who rings her best friend and says,
'Peter just raped me'. It is evidence not just that an immediate complaint was made but also evidence of the asserted fact - Peter just raped her. Similarly, an accused can call witnesses to say,
'Peter told me he just had a wonderful and consensual encounter'.
What is 'fresh in the memory' still vexes the Courts. See
Langbein v R (2008) 181 A Crim R 378,
Gordon-King v R  NSWCCA 335,
Skipworth v R  NSWCCA 37. The new s 66A sets out factors to be taken into account in determining whether an asserted fact was fresh in the memory.
Where such contemporaneous evidence is allowed its use will not generally be restricted by application of s 136.
BD v R (1997) 94 A Crim R 131).
Exception 3 - other exceptions
Statements about health, business records and attached tags (ss 69 and 70).
Emails and other similar business records (s 71).
Aboriginal/Torres Strait Islander customary laws (s 72).
Public rights (s 74), age and relationship (s 73).
Exception 4 - Admissions
The hearsay rule does not apply to evidence of an admission (s 81) or to evidence of a contemporaneous representation that was made about the admission at the time the admission was made, or shortly before or after that time which it is reasonably necessary to refer in order to understand the admission.
I can do no better than refer to the example given as a note - the section in the Act: D admits to W, his best friend, that he sexually assaulted V. In D's trial for the sexual assault, the prosecution may lead evidence from W:
(b) that W formed the opinion that D was sane when he made the admission.
To avoid the hearsay rule the admission must be first hand (s 82).The rule does not allow a person to make admissions on behalf of another, such as a co-offender (s 83). Admissions cannot be induced by violence threats or torture (s 84). Unreliable admissions to investigating officials can be excluded in criminal proceedings (s 85). Documents with unadopted oral admissions in them made in response to questions from investigating officials such as in unsigned police notebook entries are not admissible (s 86).
An admission can be made by a person who it is reasonably open to find had authority to make it on behalf of another (s 87).
Again, this is not a lecture on admissions.
With a final admonition that there is no substitute for reading the section and commentary each time a problem arises, lets discuss a few examples.
This from a police statement made in 2007. A policeman saw a young male person running from a stolen Holden Commodore Sedan. He identified himself as police. He recognised the driver as 'Justin'.
In an ERISP the co-accused says:
b) If the co-accused is 'unavailable' can the ERISP be tendered?
c) If the co-accused is called but uncooperative can the ERISP be used and tendered in cross-examination?
In an ERISP the co-accused says:
b) If the co-accused is unavailable can the ERISP be tendered?
A hospital record produced on subpoena has a nursing note saying:
A hospital record produced on subpoena has a nursing note saying:
In a police notebook it is recorded:
b) Is the notebook entry admissible against Adam, if Justin is not an available witness?
c) Is the notebook entry admissible against Adam, if Justin is on trial at the same time?
A solicitor writes a without prejudice letter to the Police prosecutions branch noting their client will plead guilty to assault if a malicious wounding charge is dropped. The issue at hearing is identification.
C tells police the accused told me
'I robbed the servo'.
b) C is unavailable to give evidence - is what the accused says admissible, 'to prove he is the robber'?
c) C attends court but says what he told police is a lie - is what the accused says admissible, 'to prove he is the robber'?
C tells police he saw the accused outside the servo (just before the robbery).
b) C attends court but says what he told police is a lie - is what he said admissible, 'to prove the accused is the robber'?
Andrew Haesler SCDeputy Senior Public Defender30 May 2009