WEEK 8 - Hearsay II Tute - Evidence Law Tutor: Ilija Vickovich PDF

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Evidence Law
Tutor: Ilija Vickovich...

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LAWS3400 EVIDENCE WEEK 8 – Hearsay II Tute Tute 7 This week we continue with the rule against hearsay evidence by examining the ways in which the Evidence Act allows for the rule to be circumvented. Hearsay evidence very often 14 has high probative value, and the legislation provides tests for its admissibility through a series of possible exceptions to the rule. These include firsthand hearsay in both civil and criminal proceedings. We also consider the admissibility of evidence of contemporaneous mental and physical states, broadly corresponding with common law ‘res gestae’ evidence, and how the Evidence Act and case law allow fact finders to access such evidence despite the hearsay rule. 1. What are the main exceptions to the hearsay rule under the uniform evidence legislation in NSW? - Division 1 (Hearsay): s59, 60, 61 - Division 2 (Firsthand Hearsay): s62-68 - Division 3 (Other) 2. What is firsthand hearsay? How does s 62 of the Evidence Act treat this kind of evidence? Evidence in which the fact asserted is a previous representation that was made by a person who had personal knowledge of an asserted fact. 62 Restriction to “first-hand” hearsay (1) A reference in this Division (other than in subsection (2)) to a previous representation is a reference to a previous representation that was made by a person who had personal knowledge of an asserted fact. (2) A person has personal knowledge of the asserted fact if his or her knowledge of the fact was, or might reasonably be supposed to have been, based on something that the person saw, heard or otherwise perceived, other than a previous representation made by another person about the fact. Firsthand hearsay exception is permitted because this section says on the occurrence of the asserted fact is in the personal knowledge of the maker of the PR and the witness in court is giving evidence of their own or somebody else’s PR, then this will be admitted under s62. We must then determine whether the matter is civil or criminal and whether the maker is available or not – so is Annie available? 64 Exception: civil proceedings if maker available (1) This section applies in a civil proceeding if a person who made a previous representation is available to give evidence about an asserted fact. (2) … (3) If the person who made the representation has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by: (a) that person, or

(b) a person who saw, heard or otherwise perceived the representation being made. 63 Exception: civil proceedings if maker not available (1) This section applies in a civil proceeding if a person who made a previous representation is not available to give evidence about an asserted fact. (2) The hearsay rule does not apply to: (a) evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made, or (b) a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation. 64 Exception: civil proceedings if maker available but is not practicable (2) The hearsay rule does not apply to: (a) evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made, or (b) a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation, if it would cause undue expense or undue delay, or would not be reasonably practicable, to call the person who made the representation to give evidence. 65 Exception: criminal proceedings if maker not available (8) The hearsay rule does not apply to: (a) evidence of a previous representation adduced by a defendant if the evidence is given by a person who saw, heard or otherwise perceived the representation being made, or (b) a document tendered as evidence by a defendant so far as it contains a previous representation, or another representation to which it is reasonably necessary to refer in order to understand the representation. 66 Exception: criminal proceedings if maker available (1) This section applies in a criminal proceeding if a person who made a previous representation is available to give evidence about an asserted fact. (2) If that person has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by: (a) that person, or (b) a person who saw, heard or otherwise perceived the representation being made, if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation. 3. Frank is charged with the stabbing murder of his flatmate Tony. The prosecutor wants to lead evidence that one day after the killing Frank was seen by the local postman Pete cleaning a knife in the garden. Pete asked Frank what he was doing, and Frank allegedly replied that he was cleaning the knife that he used to kill someone. Pete then told his supervisor Sally, who then told her husband Ted. Consider the following: (a) How is Pete’s evidence to be categorised? Is it admissible? Pete can give evidence about what he saw and what he heard, if he gives evidence of what he saw, it will be direct evidence. If he gives evidence of what he heard Frank say, this will be hearsay. Firsthand hearsay evidence as satisfied by s62, it is then admissible under section 66 2(B). (b) How is Sally’s evidence to be categorised? Is there any difference between what she will say Pete had seen and what he had heard? Is it admissible?

Firsthand hearsay one step removed regarding the evidence that Pete saw. Firsthand hearsay two steps removed – will not be admitted in court (unless through s60), regarding the evidence that Pete heard, i.e. Frank said that he was cleaning the knife he used to kill someone. (c) How would Ted’s evidence be categorised? Is it admissible? Ted’s evidence is not admissible. Firsthand hearsay two steps removed, regarding the evidence Pete saw and Sally is telling Ted about. Firsthand hearsay three steps removed, regarding the evidence Pete heard, who told Sally who is telling Ted. 4. Why do you think the NSW Evidence Act provides that statements made by a person as to their health, intentions, state of mind etc. are admissible to prove those facts even though they may be self-serving? How can this evidence be used? Contemporaneous mental and physical states At common law a person’s out-of-court acts can be used to prove a contemporaneous mental state that is: • an element of the cause of action (such as mens rea in a criminal proceeding) or • otherwise relevant to a fact in issue (such as motive, temperament, intoxication or fitness). Statements about a person’s mental or physical state is typically reliable, when a person makes a statement. Indicating about their state of mind, the words can circumvent the rule of hearsay and be admitted on the basis that these statements are spontaneous and less likely to be fabricated. - Res jesti – things done - I.e. ‘I’m feeling sick’ – if used to prove the fact that’s being asserted then it is hearsay but because it can be seen as a spontaneous statement made in alignment with the fact in issue (the sickness) - Purpose is to assert the fact, but it is considered so reliable worry shouldn’t be attached to it 66A Exception: contemporaneous statements about a person’s health etc Assumes these statements are hearsay but if they are contemporaneous with the maker of the statements representations then it could be seen as reliable enough to be admitted. The hearsay rule does not apply to evidence of a previous representation made by a person if the representation was a contemporaneous representation about the person’s health, feelings, sensations, intention, knowledge or state of mind. NOTE: The exception applies only to: • representations that are contemporaneous • about the state of a person’s mind or body • From which inferences may be drawn.

Hearsay Exercises (a) Joanne sees Henry throw a knife into a creek. She says to Leanne “Hey, I just saw Henry throw a knife into that creek!” Clement, who was camping nearby, heard Joanne say those words. Henry is later charged with malicious wounding. Could Clement give evidence of what Joanne have said towards proving what Henry did? PR: I just saw Henry throw a knife into that creek – reasonably asserting she saw the knife thrown into the creek, used for hearsay purpose in order to prove the knife was thrown into the creek. An express assertion. S59 its inadmissible. Yes. Firsthand hearsay one step removed – determine availability, if available then s66 applies, if not available then s65(2) applies (b) & (c). (b) Kevin tells his doctor about how he was injured at work and how the injury has affected him. The doctor writes a report that recites Kevin’s version of events and sets out her diagnosis and prognosis. Would the report be admissible to prove how the accident happened? (c) Sadie is charged with stabbing Fernando to death. She claims self-defence. Her neighbour George is called to give evidence that he heard Sadie give out a fearful scream when Fernando entered her unit. The prosecution argues George’s evidence offends the hearsay rule. Does it? Can the evidence be admitted? Intended implied assertion (for someone else to hear her) – hearsay rule applies – s59 prohibition, if its unintended implied assertions in admitted automatically. S66A is alternative to prove fear through her contemporaneous assertion of the scream. (d) Phil says to Jill “You stole my mobile phone!” Jill replies “Ha ha, you will never be able to prove it.” Can evidence of what Phil said to Jill be admissible in criminal proceedings against her? (e) Kyle witnesses a pedestrian being run over by a white car, which failed to stop. After the accident, Jackie is criminally charged with culpable driving. One of the main issues concerns the identification of the car. If Kyle dies before the trial, can a police officer give evidence that Kyle told him 15 minutes after the collision that the car was white? Do at home....