Hearsay:RES Gestae PDF

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Hearsay and Res Gestae from evidence, semester 2, 2020...

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RULE AGAINST HEARSAY AND RES GESTAE UEA s59: Evidence of a previous representation made by a person is not admissible to prove the existence of a fact it can be reasonably be supposed that the person intended to assert by the representation. Rule prohibits witnesses repeating OOC statements made by others in order to establish the statement. E.G. “She said...” if you are trying to prove the truth of what she actually said. Hearsay in a trial might not be prohibited: depends WHY you are saying what someone else has said. Non-Hearsay Reasons vs Hearsay Reasons. UEA s60: 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 an asserted fact. For non-hearsay reason/use, will probably be allowed. For hearsay reason/use, will probably not be allowed unless under a formal exception to the rule. Teper v The Queen:

Hearsay not best evidence and not delivered on oath. Truthfulness and accuracy of person whose words are spoken to by another witness cannot be XXN.

Hearsay evidence is unreliable, repeating what someone else says means accuracy or truthfulness of statement cannot be tested XIC is how evidence is tested: you hear once from EIC. 4 possible error sources: 1. Insincerity, witness might be lying. 2. Ambiguity, testimony unclear and may be misunderstood tribunal of fact. 3. Faulty perception, not have correctly perceived what they purport to perceive. 4. Erroneous memory, witness no longer correctly recalls what he/she perceived. When W repeats what he/she has been told about an event by D, error doubles. EXCEPTIONS TO RULE: If it can be shown evidence is likely to be reliable and accurate.  Person had no time to reflect/lie (but people DO lie)  Statement goes against their own interests  Esoteric (obscure) knowledge of events  ‘Story’ does not make sense until completely told Courts reluctant to allow hearsay admittance unless good reason and/or accurate/reliable

NON-HEARSAY USES: OOC statements as “original” evidence - Is it relevant to fact in issue whether statement true or not? - Is statement original evidence of facts forming part of circumstantial evidence where inferences may be drawn? - Is admissible when proposed to establish by evidence, not truth of statement. WHY DO YOU WANT IT IN? DO YOU CARE IF STATEMENT TRUE OR NOT? IF NO, THEN NOT PUTTING IN FOR TRUTH OF IT, PROCEED. Subramanium v Public Prosecutor

R v Sean Lydon

Kamleh v The Queen

Comments tended to show a ‘threat’ regardless of the truth of those threats (duress threat) To show a piece of paper at crime scene“Sean Rules” was likely to be written by the accused, original evidence you want to put in Co-Accused (separate trials) ROI with police was admissible, not for testimonial value but to show false alibi concoction, ‘what are the odds of false alibi’

Circumstantial uses of OOC statements (e.g. state of mind) as original evidence Is statement original evidence of conduct forming part of circumstantial evidence from which inferences may be drawn? Using what somebody has said (V or D) not for truth per se but to explain state of mind at the time. Walton v R

R v Hytch

Ratten v The Queen

Comments showed victim’s intention to meet accused at Elizabeth Town Centre. Son’s comments to “daddy” were not admissible as it only went to his state of mind which was irrelevant; this evidence could only be used for truth of it (ID of caller), therefore inadmissible hearsay. Evidence that victim intended to meet appellant AND evidence that she intended to falsely claim she was pregnant in order to extract money were both admissible due to state of mind and intention of proposed conduct “Get me to police please” went to victim’s state of mind (fear) just before fatal

R v Wilson

shooting. Nature of husband/wife relationship on accidental shooting or murder.

Prior consistent statements to support credibility/rebutting accusation of “recent” fabrication s34M EAEvidence can be given by any person about the contents of a complaint in sexual cases; judge must direct the jury it is admitted to inform them how the allegation first came to light & the degree of consistency of conduct of the complaint but judge must make clear it is not admitted for the truth of what is alleged (unless child is or under 14 years & not giving evidence, then it will go in for the truth via s34(4)LA) If alleged to be a “recent” fabrication, evidence that same statement said earlier can be admitted; not for the truth of it but to show consistency- Nominal Defendant v Clements Prior inconsistent statements used to show lack of credibility Can use W’s own prior inconsistent statement to damage their credibility (suggest they are lying/wrong/unsure about material issues). Example: “Are you absolutely sure about that time/detail?” “Yes, I’ll never forget that!” “Really? Well, in your police statement made shortly after the accident didn’t you actually say …..” Prior statement does not go in for the truth of its contents but to show the inconsistency and to damage their credibility Statements with a mix of hearsay & non-hearsay uses If can show non-hearsay use, will be generally admissible (especially if you can ‘separate’ the uses with directions. If there is a jury, judge will direct for use they can make of the Example: “You heard evidence from the police officer that he said to the defendant ‘I have been told that you killed X’. That was led only to provide you with the context for the defendant’s answers. You cannot use it for the hearsay purpose of the truth of the officer’s comments. R v Fairbairn Implied or unintended assertions & conduct Implied assertion may be used if it can be shown to truly have been unintended. Implied

assertions in conduct are more likely to be admissible as non-hearsay as are often unintended. Example: “Daddy is on the phone”- (Walton) and spontaneous identification of telephone caller (Pollitt) are implied assertions; failure of hotel patrons to drink a particular beer is implied assertion by conduct of beer being “off”(Manchester Brewery v Coombs) UEA s59 differentiates between assertions of fact which can reasonably be supposed to be intended and which are not. ‘Representation’ and not ‘statements’ automatically captures conduct. You do not have to decide if implied assertion in statement or implied assertion in conduct if using UEA, just decide whether implied or intended ADMISSIBLE HEARSAY EXCEPTIONS: Res gestae (“part of the story”): Spontaneous statements made by participants in or observers to an event in question OR Incidents in the transaction. Must be at same time as incident or so close in time that it can still be part of the transaction, particularly if person who made the statement was under continuing pressure of events. R v Andrews

Ratten v R

R v Bedingfield Vocisano v Vocisano

R v Duong

V was stabbed by 2 men in his own home and shortly afterwards made his way to the flat below to obtain assistance. Statement of stabbing victim to a police officer was admissible as being made under the continuing pressure of events- person was “so emotionally overpowered by an event that possibility of concoction or distortion is disregarded” Statement made over phone by victim just before she was killed implying accused was attacking her was admissible (went against his defence of accident). How long after event? Res Gestae is finished as soon as event is over. How long after event? Narrow concept of contemporaneity; probability that statement not concocted is insufficient, need spontaneity V was killed in brawl that erupted at end of birthday party. Father gave evidence, heard a

person call out “they’re stabbing my brother, help me, help me” Held as admissible hearsay evidence as part of res gestae to help prove identity of attackers

INCIDENTS IN THE TRANSACTION Res Gestae can be admitted as evidence if it is original evidence so connected to a fact in issue that it forms a part of a single transaction. Bull v The Queen R v Vidic

Lyons & Lyons v The Queen

Things so close in time or space to the matter being proved as to be inseparable from it Principle of completeness: 1) A vehicle collision with the accused 2) An assault by the accused while X was still in car 3) A subsequent second collision after the accused, driving in dangerous/hostile manner followed X. In order to tell the story of assault-collisionassault, whole story had to be told. John Lyons alleged prior violent conduct towards other drinkers was inadmissible similar fact evidence relating to criminal offences. Evidence earlier in evening he was acting violent to other patrons. Prior violence to other drinkers at the bar was relevant to purpose and intention when assaulting the deceased. Wright J “capable of showing he was ready to attack anyone in his way”

[Note ambiguity as to whether incidents prior to event can be part of “res gestae” OR if it is original evidence so connected to a fact in issue that it forms part of a single transaction, e.g. “res gestae” or circumstantial evidence]

Statements by a person as to his/her contemporaneous physical sensations or general state of health: “It is now well settled that if it is relevant to ascertain the state of a person’s health at a particular time, the fact that he made a statement at the time as to what his state of health

then was, that is, as to his then existing symptoms, is evidence that his health in fact then was as he stated it to be” - Ramsey v Watson citing Evans v Hartigan Example: In a compensation claim for multiple injuries, doctors could give evidence about what the worker said was hurting on various occasions Smart v Avon Products Pty Ltd Certain statements by deceased persons: Will admit first-hand hearsay statements by deceased persons if necessary & there is some guarantee of reliability    

Declarations against interest ( Higham v Ridgway) (UEA s65(2)(d)) Declarations in the course of duty (R v O’Meally) (UEA s65(2)(a)) Declarations as to public or general rights (UEA s74) Declarations as to pedigree (mostly irrelevant now) (UEA s73)

Dying declarations:  Comments by a victim to a later charge of murder or manslaughter of that victim about the cause of their death, where they held a hopeless & settled expectation of death at the time of the declaration (WA v Montani) (UEA s65(2)(b) or (c)) People who think they are going to die are more likely to tell the truth 

Comments by a testator about the contents of their Will after it has been executed (Sugden v Lord St Leonards)

Statements in documents in civil cases only (s34C EA): s34C EA has strict requirements but essentially it is for first or second-hand hearsay, the document is in the nature of a “continuous record” and the maker has a duty to maintain it. Business documents (s52 & s53 EA): s52 EA allows “apparently genuine documents” to be admissible for 1st hand hearsay unless Court thinks the maker should be called s53 EA allows “apparently genuine documents purporting to be business records” to be admissible (without further proof) unless the maker should be called (“business” is not just commercial undertakings; broad definition including hospital records)

Statements of protected witnesses (s34LA): An out-of-court statement of a young person who is a victim in a sexual offence is admissible. Admissions: Does not have to be a complete admission, can be partial admission. Admissibility depends on reliability, more likely to be admissible if:  Personal knowledge of admitted facts (esoteric/obscure knowledge)  Statements are against a party’s interest  Self-serving statements can be admitted but only if it is contained in a statement against a party’s interest and it is necessary to put the whole statement in for context UEA PROVISIONS:  s60 If evidence is admitted for non-hearsay purpose, it will also be admitted for a hearsay purpose. This section does not apply in a criminal proceeding to evidence of an admission.  s66A contemporaneous statements about a person’s health  s69 business records (if they were made by a person who had personal knowledge of the asserted fact (or information supplied to them by a person who had personal knowledge of the asserted fact)  s70 tags and labels  s71 electronic communications  s72 Aboriginal & Torres Strait Islander traditional laws & customs  s73 marriage, family history or family relationships  s74 public or general rights  s190 re waiver of rules of evidence: - Court can dispense with the rules by the consent of both parties (consent not valid in criminal matters unless defendant advised by his Counsel or the Court considers he understands the consequences); - Court can dispense with the rules in Civil matters if it is not genuinely in dispute or it would cause unnecessary expense/delay...