7. Week 7 - Week 7 Questions. Detailed Answers to Evidence law PDF

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Week 7 Questions. Detailed Answers to Evidence law...

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WEEK 7: HEARSAY EVIDENCE: EXCLUSIONARY RULE; FIRST HAND HEARSAY AND MORE REMOTE EXCEPTIONS 1. Max is on trial for recklessly wounding Joe at a hotel in Darlinghurst. Max admits he was at the hotel but denies being involved in any fight. Harry, the bar tender, told the police he saw Max strike Joe with a broken glass. Harry also told police he heard Joe say 'Piss off Max, you're drunk, leave me alone.' Harry also told police that the other bartender, Hazel, had said to him earlier in the night 'Watch out for that fellow Max, he's had too much to drink.' Harry has been called to give evidence for the prosecution. Hazel is 'not available' to give evidence. a.

Can Harry give evidence about what Joe said? If so, for what use? Joe is available to give evidence in the trial.

Harry has communicated to the police evidence that he witnessed himself. He is the maker of the representation that Joe was struck with a broken glass by Max at a hotel in Darlinghurst, and that he was drunk. This first-hand evidence is being adduced to prove the existence of reckless wounding in a fight. This asserted fact is essential to proving the offence, and will fall under s 59 of the Evidence Act 1995 (NSW). As the maker of the representation, Joe, has personal knowledge as an alleged victim and is able to give evidence in this criminal trial, this falls under the s 66 exception for first-hand hearsay. The facts do not give rise to an issue under s 66(2A) regarding the facts being ‘fresh in the memory’ of Harry. Similar issues were raised in the case of Papakosmas. Consequently, Harry can give evidence of what Joe said to prove the contents of the intended fact. b.

Can Harry give evidence about what Hazel said? If so, for what use? Would the situation be different if Hazel was vailable to give evidence?

Harry cannot give evidence with regards to representations made by Hazel as this falls within the definition of hearsay evidence dictates that where ‘the maker’ of the representation is unavailable for cross-examination, evidence of representation cannot be given. There are 4 elements which are the safeguards for the evidence/representation to be used against the defendant. Under s the representation was made shortly after the asserted facts occured. Hazel is under a duty and can rely on it the most relevant and most commonly. If you can't get B, you have to go to C. Based on the facts, It could be argued that 2b may be the most appropriate exception which will allow Harry to give exceptions to allow Harry to give evidence. Arguments are present as her duty as a bartender, she had a duty to make such comments. Harry can give evidence of previous representation and can be used for hearsay purposes - section 59 prohibits the use. If you want to use the previous representation, s 59, you can't do it. To set aside s 59, the previous representation needs to be intended. - There was no intent to convey a message, s59 wouldn't apply, it can be used. It only works in relation to intended assertions that can be easily attributed (Waltons case) 2. Approximately 8 months prior to Max's trial for reckless wounding, a committal hearing was held. At the committal, an independent eye witness who was an overseas student travelling in Sydney at the time, gave strong evidence for the prosecution. The defence chose not to cross-examine this witness at the committal. When the Police served the subpoena for the imminent trial, this eye witness could no longer be found. Could evidence from this eye witness and Police statements be admitted at the trial? If so, for what use? For the eyewitness and police statements to be admissible, the evidence must be relevant s55 and the evidence would need to fall in one of the exceptions to the hearsay rule in s59. Yes, evidence of this eyewitness and police statements can be produced for the trial. S65- First-hand hearsay exception - criminal proceedings maker not available. The prosecutor can use section 65 to adduce evidence of statements made to police or even to the courts. In the committal hearing the defence chose not to cross-examine the overseas student and the eyewitness is considered unavailable (under Pt 2, clause 4(1)(f) of the Evidence Act 1995 (NSW)). Therefore they are as the

eyewitness is unable to testify at Max’s trial to confirm their early evidence and identification of Max. The eyewitness evidence provided at the committal hearing and the police statements can be considered first -hand hearsay (s62(1)), if the identification of the accused is given by the police officer, as it will be evidence of a prior representation of the maker (the overseas student) who saw or heard the criminal act (s59(1)). If the maker of the evidence (Overseas student) is considered to be unavailable under Pt 2, clause 4(1)(f) of the Dictionary, as they are unable to be found. Then this is considered hearsay evidence of a criminal proceedings where the maker is not available s 65. S65(3) states the hearsay evidence does not apply to previous representation (a committal hearing) made in the course of giving evidence where there was reasonable opportunity to cross -examine a person s65(3)(b). Therefore, evidence which s65(3) applies can be adduced by producing a transcript, recording or representation as authenticated by either s65(6); a) the person whom the court or other body heard the committal hearing, the registrar of the court or the person or body responsible for producing the transcript or recording. As section s65(3) does not apply to evidence adduced by a party unless that party has given reasonable notice in writing to the other party of the party’s intention to adduce the evidence of the overseas student under s67(1). The notice under s67(3) must state that the party intends to rely on arguing the hearsay rule does not apply. Therefore s65(8) will only apply and be admissible as evidence, if the court is satisfied that the maker of the representation (overseas student) is unavailable as a witness and the defence gives notice to the prosecution under s67. 3.Section 59 requires the court to decide what was intended by the maker of the assertion. How have the courts determined the 'intentions' behind assertions? See especially the NSW CCA's decision in Hannes (2000). Why was this interpretation problematic? Do you think the amendment to s59 addresses the problem? Courts have determined intentions behind assertions by applying an objective test to determine intentions. This usually looks at circumstances or the conduct of an individual. In Hannes, the court noted that although the intentions had been represented in a document provided to the court, it was not admitted because it did not satisfy the relevance test under s 55. It was problematic because the court relied on s 72, stating that it would not have been admissible under any event despite the usual exception to the hearsay rule. Hannes as a case represented a shift away from the actual subjective intentions and thought processes of the person making the representation to a consideration of the representation itself and therefore considered what is reasonably supposed. With the introduction of the subsection (2A) unintended representations became excluded from the hearsay rule.

4. How have the courts interpreted the meaning of ‘freshness’ in Section 66? See especially the High Court's decision in Graham. Why was this interpretation problematic? Do you think the amendment to s66 addresses the problem? S66(2) applies in criminal proceedings to limit the representations about facts that were ‘fresh in the memory of the person who made the representation. The fresh in the memory test is based on psychological research indicating that memory deteriorates rapidly, within hours if not days of the event. Therefore representations made while an event is fresh in the memory, are more likely to be reliable than later statements. The High Court decision in Graham v The Queen (1998) CLR 606, Gaudron, Gummow and Hayne JJ held that: The word fresh in the context of s66 means recent or immediate. The meaning is meant to describe the temporal relationship between ‘the occurrence of the asserted facts’ and the time of making the representation. This was problematic as the temporal relationship required was interpreted to be likely measured in hours and days and not years (as it was in the case of Graham v The Queen). In Graham, the court asserted that ‘freshness’ does not refer solely to the lapsing of time between a representation, but refers also to the quality of the memory having regard to the circumstances at hand. S66 (s24A) was amended in response to the case of Graham to provide that - to determine if the facts were fresh in the memory of a person the court must take into account matters it considered relevant to the questions including; a. Nature of the event concerned; and b. the age and health of the person; and c. The period of time between the occurrence of the asserted fact and the making of the representation. The amendment to s66 addresses the earlier fresh in memory test - as it moves from a time basis to the nature of the event, age and health and time. This amendment stated that temporal relationship still remains a relevant

consideration but it is no means determinative of the question. Therefore cases, such as sexual assault cases can be made up to four years after the alleged abuse, because of the vividness of the complainants description of that abuse....