It’s all in the evidence

Relevance and admissibility

Smith v The Queen 2001

• Whether evidence of police officers recognising the accused in bank photographs was relevant
• Issues: Could police give relevant evidence of recognition of the accused by utilising photographs taken from a bank security system? In other words could such evidence rationally affect the assessment by the jury of the probability of the existence of a fact in issue, namely who was it depicted in the bank photograph.
• Facts: Four men entered a bank and carried out a robbery. Bank security cameras took photographs of what occurred. The Crown alleged that the appellant was one of the persons who entered the bank and that proof was available from the photographs. Police who had previously had dealings with the appellant gave evidence that they recognised him in the photographs.
• Held: (Gleeson CJ, Gaudron, Gummow and Hayne JJ; KirbyJ dissenting on the issue of relevance of the evidence but agreeing in the ultimate result) In this case the assessment of the identity was taken from the same material that was available to the jury. Therefore the witness’s assertion of recognition was not evidence that could rationally affect the assessment to be made by the jury on the same issue and was therefore not relevant. If the assessment of probability of the fact was affected by the police officer’s evidence it is not by any process of reasoning but simply because the decision maker is permitting the substitution of the officer’s view for their own. In a case where the issue extends beyond the narrow question of who is depicted in the photograph it may be relevant for the witness to give recognition evidence. An example is provided in the case of Goodall.
• The police gave evidence of having previously seen the accused dressed in a distinctive jacket. They were able to depose that they recognised the accused in the jacket in a bank security photograph. Other examples are provided by the necessity to give evidence that the accused’s appearance differs from his appearance at trial in some significant way or that the photograph depicts some distinctive feature present in the accused that could only be identified by someone familiar with his appearance. Such further examples may give rise to questions as to the applicability of the opinion rule (s 76, Evidence Act) but that question does not arise in this appeal (on the judgment of the majority).
• Result: Order of the Court of Criminal Appeal set aside. Conviction and sentence quashed and new trial ordered.

Papakosmas v R 1999

• different ways it can be “relevant”
• Facts: P allegedly raped colleague at office party in small room. P claim consent. C came out of room (crying/distressed) and tells 3 colleagues ‘P just raped me’.
• Signifiance: 1st sig case post-EA 1995 Act.
• Held: relevance:

1. Proving the facts asserted by the complainant (non consent). Not excluded by hearsay rule bcos s66. Colleagues heard/saw C right after the alleged rape.
2. Supporting the credibility of the complainant.

Evans v The Queen 2007

• Facts: robbery. On video, perp wore baklava, sunglasses and overalls. In trial, Pros made E wear baklava, sunglasses, overalls in front of jury. Also walk around and say things said by perp in video.
• Issues: rel for jury to see E like that?
• Held:
• Gummow and Hayne JJ: NO:
  • Cannot rationally affect jury – might resemble robber but could also resemble anyone wearing same thing.
  • Nothing material for jury to compare – video doesn’t show face of perp.
  • BUT walking/talking COULD rationally affect – compare with video.
• Kirby J: YES
  • Relevance is BROAD threshold.
  • Similarity between E and robber à rationally affect jury.
  • Inadmissable bcos prejudicial etc but NOT because of irrelevant.
• Heydon J (Crennan J agreeing): YES
  • Evidence doesn’t need to prove WHOLE case (to be relevant) – just go towards proving (indirectly) identity.
  • Conversely, it WOULD be relevant if E did NOT resemble the perp.

Hearsay

Hearsay and original evidence

• The hearsay rule ordinarily prohibits the proving of a fact by the use of evidence of what someone said, prior to the court case, about that fact
• Original evidence: eyewitness giving their account of the facts from memory under oath in the witness box
• Out-of-court statements (oral or written), on the other hand, are neither given under oath nor amenable to testing by cross-examination
• The hearsay rule, by insisting on eyewitness reports of events, is a logical part of that procedure. Critics of the hearsay rule however have doubted the efficacy of this model i.e. Issue of memory.

Hearsay – the exclusionary rule

• s59 The hearsay rule – exclusion of hearsay evidence
• two critical elements in s59(1) previous representation made by a person & that its relied on to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation

• Previous representation made by a person
  • Previous representation e. out-of-court statement
  • Express oral or written representations
  • Implied representations
  • Representations to be inferred from conduct
  • Representations not intended to be communicated
  • Representations not communicated
  • Previous representation made by a person

• To prove a fact that was intended to be asserted
• Second element in s59(1) distinguishes hearsay from original evidence
• If, by the out-of-court statement, a person intends to assert some fact or other and if the statement is being used to prove that fact, then the statement will be hearsay. OR Does the evidence offered to prove the fact that the light was red amount merely to some person’s out of court assertion of that fact?
• Subramaniam v Public Prosecutor: At trial, the verbal threats by the terrorists were excluded on the grounds of hearsay. The question on appeal was whether the threats had been rightly excluded.  The Privy Council held that the trial judge had been in error and the threats were not hearsay.

• Representations with multiple relevance

• Implied hearsay and the intention of the maker of the representation
• s59 refers to ‘previous representations (that are relied on) to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation’ i.e. a requirement of intended assertion
• implied hearsay: Eg. Assertion ‘This is my mother’ implicit in the representation ‘My mother is feeling sick’ when uttered to a stranger in the mothers presence.
• Walton v R: ‘Hello Daddy’ The majority considered the evidence to be hearsay and inadmissible for that purpose.

• The intention requirement and express representations
•  Summary – identifying hearsay evidence

Smith v The Queen 2001

As above

Lee v The Queen 2001qaz

• Facts: Lee was alleged to have committed an armed robbery in which a gun was fired. A witness, Romeo Calin, was alleged to have told the police that he saw the appellant on the day of the robbery and the appellant said to him “Don’t bother me I have just done a job, I fired two shots”. At trial Calin said he had no recollection of the conversation with the appellant and denied making a statement to the police. The Crown obtained leave to cross-examine Calin and tendered his statement to police.  The High Court allowed the appeal on the basis that the effect of s. 60 might permit evidence of first hand hearsay as evidence of the fact (such as the police relating that Mr Calin said that he saw the appellant on the day of the robbery), but not second hand hearsay (the police relating that Mr Calin said that the appellant said ‘I have just done a job’ etc.).
• Held: that s. 60 does not apply to second hand or more remote hearsay. 

Jango v NT of Aus 2004

• The applicants revised the expert evidence in an attempt to comply with provisions of the Evidence Act 1995 (Cth). This interlocutory case deals with persistent evidentiary issues, such as the overall probative value of the evidence, alleged elements of advocacy in the expert report, whether observations about communication difficulties require expertise and whether the expert is permitted to evaluate specific evidence.

Hearsay – the exceptions

6.4 Exceptions to the rule against hearsay

• 3 broad types of exceptions to the hearsay rule
  • 1 evidence that is relevant for a non-hearsay purpose s60
  • 2 first-hand hearsay s63-66A
  • 3 more remote forms of hearsay s67-75

6.4.1 s60 – evidence that is relevant for a non-hearsay purpose

• effect of s60(1) is that, if the rep is admitted for its non-hearsay purpose, it may then also be used for any relevant hearsay purpose (to prove the fact asserted in it)

• S60 and the discretion to limit the use of evidence (s136)
• Allows a judge to limit the use of evidence if a particular use might be unfairly prejudicial to a party to be misleading or confusing
• This section may be used to reverse the effect of s60 by limiting the use of a previous representation to its non-hearsay use for which it was admitted
• Papakosmas v R it was argued that s136 should be used as a general rule to limit the use of sexual assault complaint evidence to its non-hearsay purpose. The HC rejected the argument, stating that ‘to assert a general principle of the kind for which the appellant contends…would be to subvert the policy of the legislation.’

• S60, remote hearsay and admissions
• s60(2) intends to allows remote hearsay to be admitted if the previous representations have been admitted for a non-hearsay purpose
• s60(3) excludes admissions in criminal proceedings from the operation of s60

6.4.2 First-hand hearsay

• First hand hearsay is evidence of an out-of-court statement (previous representation) where the person who said the statement actually perceived the fact they are talking about, rather than hearing it from someone else, and that out-of-court statement is being used to prove a fact intended to be asserted by it
• Div 2 of Pt 3.2 creates a new category of exception for first hand hearsay allowing such hearsay to be admissible in some circumstances in spite of the exclusionary rule in s59
• Note: not all first-hand hearsay will be admissible

• Definition of first-hand hearsay
• s62(1) defines a first-hand representation as ‘a previous representation that was made by a person who had personal knowledge of an asserted fact’
• the maker is the person who said the out-of-court statement (previous respresentation) not the witness who is repeating that out-of-court statement in the witness box (unless the witness is trying to repeat their own out-of-court statement)
• so first-hand hearsay refers to the case where a witness is trying to repeat in the witness box a statement that she heard from a person who actually perceived the facts or events being reported
• R v Vincent A woman gave details of a car and then left. The trial judge admitted the young woman’s representation on the basis that it was first-hand hearsay.

6.4.3 The first-hand hearsay exceptions – admissibility of first-hand hearsay

• once determined if a previous rep is first-hand, the next question is where one of the exceptions in Div 2 applies to make the evidence admissible
• distinct exceptions for first-hand hearsay in civil cases (s63 and 64) and in criminal cases (s65 and 66)
• the factors within these sections that are relevant to the admissibility of first-hand hearsay are the availability or unavailability of the maker of the representation and the quality (reliability) of the evidence
• general effect of provisions in s63-66 is that in each case the the previous representation is 1^st hand and the requirements of the section are satisfied, secondary evidence of the representation will be admissible
• s67 requires reasonable notice to be given of the intention to adduce 1^st hand hearsay
• in criminal and civil, 1^st hand hearsay may be admissible where the maker of the representation is not available to give evidence (s63,65)
• there is an exhaustive list of circumstances when a person is considered unavailable. one of the circumstances is where all reasonable steps have been taken to secure the person without success
• Tsang Chi Ming v Uvanna a solicitor left it too late to locate the witness and just searched the phone book this was considered insufficient to conclude the witness was unavailable.
• Tim Barr v Narui Gold Coast the question was whether a Japanese citizen in Japan was unavailable to give evidence within the meaning of the Act. The Court found the witness unavailable.

6.4.4 First-hand hearsay in civil cases

• s63 applies in civil where maker of previous representation (1^st hand) isn’t available to give evidence. Instead it is allows to be given by a person who perceived the representation being made or by a doc
• even when maker of the representation is available to give evidence s64 allows hearsay evidence to be used instead of calling the person who made the representation, if it would cause undue expense or delay or be impracticable to call the person
• or if the person who made the rep is available and is to be called, then hearsay evidence may still be given of the rep – either by the maker himself or herself, or by another person who perceived the rep being made s64(3)
• effect of these provisions is that hearsay evidence (as long as its 1^st hand) will be permitted almost all the time in civil proceedings
• this is a significant departure from the position at common law
• Caterpillar v John Deere the evidence of a witness in the US and who wasn’t called to give evidence was held not to fall within s63 or 64 exceptions because in the context of litigation involving IP rights of substantial value the undue expense, delay or impracticability of calling the witness was not made out
• De Rose v SA the judgment of O’Loughlin J is an eg of the operation of s64
• Citibank v Liu, Abn Amro Bank v Liu Hamilton J discussed ‘undue expense’ when measured against the total amount claimed in the proceedings and the availability of video link as an alternative for remote witnesses

6.4.5 First-hand hearsay in criminal cases

• 2 general features about 1^st hand hearsay provisions in criminal s65 and 66
  • more restrictive than in civil
    • documentary evidence is not permitted must be by maker or witness
  • more liberal for the accused than for the prosecution

6.4.6 Criminal proceedings where maker is unavailable – s65

• s65 allows for 1^st hand hearsay to be given in criminal cases where the maker of the previous representation is not available to give evidence

• Represenations for which some guaranteed of reliability exists – s65(2)
• general effect of s65(2) is that 1^st hand hearsay will be admissible via a person who perceived the representation being made but only if at least one of the guarantees of reliability listed in the section is met (and the maker is unavailable, notice is given pursuant to s67 or leave granted)

• Representations made under a duty – s65(2)(a)
• effect is that if the maker was at the time under a duty to make it and theyre unavailable to give evidence, then evidence of their rep may be given by a person who witness the making of the rep

• Representations made when or shortly after and unlikely to have been fabricated – s65(2)(b)
• this s allows evidence of a rep that was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that it was fabricated, to be given by a person who witnessed that representation being made
• general view is that considerations like stress/anxiety will enhance reliability as they have less capacity/inclination to concoct a representation; the focus is on reporting what happened not a different objective
• R v Ambrosoli
  • it was noted that the focus of s65(2) is on the circumstances of the making of the representation as opposed to the accuracy of the representation.
  • The question was whether the witness’s statement to police and the transcript of his evidence at the committal proceedings should be admitted under s65. Court held evidence not admissible under s65(2) (b) or (c) and transcript was admissible under 65(3).
  • is authority for the meaning of the phrase ‘made in circumstances’
• Harris v R the meaning of ‘shortly after’ was considered. The issue was whether a statement by the deceased that was made within 24 hours of the incident should have been admitted under s65(2)(b)

• Reliable representations – s65(2)(c)
• focus is on reliability of rep rather than the unlikelihood of it having been fabricated
• rational is that all reliable evidence should be admitted
• approach favoured by Mason CJ in Walton v R but not endorsed by majority
• Conway v R
  • held s65(2)(c) should be interpreted strictly
  • C murdered wife by heroin and previously placed it in her coffee
  • Q was whether conversations she had with people that he was trying to drug her were admissible under the s65 exception to hearsay

• Evidence already given in prior proceedings – s65(3)-(6)
• if the maker of the previous representation has already given evidence in an Aus or overseas proceedings and has been cross-examined or there was a reasonable opportunity to cross-examine, then the 1^st hand hearsay evidence of the rep will be admissible provided it meets the conditions under s 65(3)-(6)
• previous rep may be adduced by a properly authenticated transcript s65(6)

• Representations against interest of maker – s65(7)

• Representations adduced by an accused – s65(8), (9)
• s allows ‘the exonerating statements of the alleged victim to be received, the confession of 3^rd parties and statements of deceased persons who could have given evidence’

6.4.7 First-hand hearsay in criminal cases where maker is available

• in criminal, where the maker of the previous representation is available, there is no provision for not calling the witness and relying instead on hearsay evidence
• effect of s66 is that the person must be called if evidence of the persons previous representation s to be admissible
• it also must be made when the facts asserted in it were fresh in the memory of the person who made the rep (s66(2)
• Graham v The Queen
• R v XY

• Proofs of evidence – s66(3)
• this s places a restriction on the prosecution where the evidence sought to be adduced is a previous representation contained in a police statement or proof of evidence
• such rep will not be admissible if adduced by the prosecution
• purpose is to prevent prosecution from calling witness and then simple tendering their statements instead of leading direct oral evidence

6.4.8 First-hand contemporaneous statements about a person’s health etc – s66A

• Walton v R
• idea is that a person’s statements about his state of mind or intention is evidence of that state of mind or intention
• this s exempts from the exclusionary rule, 1^st hand hearsay evidence of contemporaneous representations by a person about that person’s health, feelings, sensations, intention, knowledge, state of mind
• statements of such are not covered by the exception as the reliability of them is tied up in their contemporaneity with the feelings etc they express

6.4.9 Other exceptions to the hearsay rule

• Div 3 of Pt 3.2 applies to more remote forms of hearsay ie. hearsay that is not 1^st hand
• the remote hearsay exceptions are justified on the basis of 2 criteria: reliability and necessity

• Business records
• exempt from hearsay rule on the assumption that doc prepared in the context of business dealings are likely to be accurate, given the importance of accurate record-keeping to the operation and affairs of a business
• exemption in s69 and applies to any doc that was or formed part of a record kept for purposes of a business

• Tags and labels (s70)
• these are considered doc evidence under UEL as they are things on which there is writing or other marks and the purpose of adducing the doc is to prove its contents
• under UEL these are considered hearsay which is consistent with the Act’s thinking with respect to their status a doc evidence
• this s provides and exception to the hearsay rule for a tag/label attached to or writing placed on and object if it may reasonable supposed to have been so attached or placed both in the course or a business and for the purpose of describing or stating the nature, etc of the object

• Electronic communications (s71)
• exception in s71 allows representation in electronic comm to be used to prove certain things such as the identity of the sender and recipient and the date on which the communication was sent

• Aboriginal and Torres Strait Islander traditional laws and customs (s72)
• this exception is a recognition of oral tradition in ATSI cultures and is aimed at making it easier that it has been for evidence of traditional law and customes to be adduced where relevant

R v Suteski [No 4]

• operation of s65 ‘unavailability’ and s137
• Refusal of witness to give evidence
• Witness “unavailable to give evidence” for purposes s65(1) admission of hearsay
• Discretion to exclude s137