Evidence Law

Hearsay Exception 

 

  • Rationale for the hearsay rule

 

‘Hearsay’ is generally defined as a statement made in testimony by A, about something that A was told by B, that B experienced, such as what he saw, heard, smelled, etc. According to the article ‘Report on the Rule against Hearsay’, one of the reasons that the hearsay rule should be reformed or abolished is that it excludes reliable evidence. In this way, the hearsay rule carries the risk of injustice.

In contrast, many legal professionals agree to maintain the hearsay rule. Brennan J in Pollitt v R stated that hearsay is not the best evidence available because it is not delivered on oath. Truthfulness and accuracy of statement can’t be tested during cross-examination. A witness’s demeanour can’t be assessed. Hearsay is easy to be fabricated and hard to disprove, leading to increased trial costs. In Subramaniam, the court ruled that evidence is hearsay when the purpose of the evidence is to establish the truth of fact in the statement and it is not admissible. The evidence is not hearsay and is admissible if the statement is not a truth about the statement, but rather a fact about the statement being made.

 

 

  • Res Gestae

 

The principle of res gestae is that a statement made by a person, at the very moment of a critical event, is more likely to be genuine, so it can be admissible in court. There are two requirements. The statement must be made at or close to time of the event and it must be made spontaneously, not following reflection, making it unlikely to have been concocted. Courts often refers to the necessity of contemporaneity with the transaction in question: Vocisano v Vocisano.

However, in Pollitt, it would probably be sufficient since it is approximate, if not exactly contemporaneity. Also, in Ratten, the court ruled that contemporaneity is less important, approximate is okay. In Benz, the Crown argued that his evidence to prove that two women on the bridge were mother and daughter, from the implied assertion of that fact by the girl, was admissible.

 

 

  • Evidence of Intention (State of mind)

 

Original evidence of state of mind is admitted for the purpose of proving the truth of contents of a statement. Original evidence is not an exception of the hearsay rule, yet it is admissible if it is relevant evidence used for a non-hearsay purpose: Walton; Hitch; Perry; Pollitt.

In Walton is an extremely important case as it extended the scope of admissibility of this form of original evidence. Later, the Walton principle was applied to R v Hitch. In Walton, the statement was circumstantially relevant, showing that they ultimately met as planned. The majority of the court ruled that the evidence was admissible since the deceased’s state of mind was found and there was inference that she carried out her stated intent. In Hitch, evidence were admitted as circumstantial evidence of conduct on the part of the deceased from which her state of mind at the relevant time could be inferred.

 

In Pollitt,  judges adopted the new approach. Pollitt is a hit man and kill wrong person who hired him. The person who hired Pollitt was dead and not able to give evidence in court. There were phone conversation but the issue was that was it hearsay or not hearsay. Judges have all different views, eventually, statement was allowed in and Pollitt was convicted.

 

 

  • Relationship Evidence

 

Original evidence of relationship is not admitted for a purpose other than to prove truth of a statement’s contents. The relationship must be relevant to facts in issue. In Wilson, the High Court admitted parts of a witness’s statement,

“I know you want to kill me for my money.” and

I know you want to kill me, why don’t you get it over with?”

 The statements were not just admitted because the wife’s statements were casually connected with her death but also because they assisted the jury in deciding whether the wife was killed in cold blood or was the victim of misfortune. Also, in Clark, evidence of the troubled relationship was relevant, so statements were admissible even though they were not made in the presence of the accused. On the other hand, the Frawley case shows that relationship evidence is not always automatically relevant. The domestic violence occurred between parties in a relationship so the evidence was not admissible because it was hearsay.



  • Common Law Exceptions

 

There are a few common law hearsay exceptions. First, an exception applies to unlawful homicide cases; a statement made by a person who is competent to give evidence and is under a ‘settled, hopeless exception of death’: R v Peel.

Second, statements made by the deceased in terms of proprietary interest are admitted. The statement may be oral or written, but the deceased must have personal knowledge of the contents, which is called ‘first-hand’ hearsay.

Third, an exception applies when the deceased has made a statement during his/he duty, arising from employment or public office. In O’Meally, the court ruled that the statement made by a police officer was not admissible since it was not made during his duty.

Fourth, a statement about past health or past feelings of speaker is not admissible: Ramsay v Watson. Also, the exception applies if statements show the nature of a business or it falls into the Tripodi principle.

At this time, it is not necessary to prove that the other side is actually criminally involved in order for the statement to be admissible under this principle: Connell No 6 (1994) 12 WAR 133 & Gouroff .

 

  • Statue Hearsay Exception: under s 93B Evidence Act 1977 (Qld)(‘EAQ’)

The court allows out of court statements in relation to crimes which are listed under Chapter 28-32 (homicide, unlawful striking causing death, offence endangering life or health, assaults, and rape and sexual assault) of the Queensland Criminal Code. They can be used in court under s 93B EAQ. Under this provision, a person must have personal knowledge of an asserted fact and is unavailable to give evidence in court because they are dead, mentally or physically incapable. Then, it must be fit into one of the following categories under s93B (2). S 93B (2) states that the hearsay rule does not apply to evidence given by a witness if it was made shortly after the asserted fact happened, it is unlikely fabricated, it is highly reliable, or at the time it was made, it was against the interests of the person who made it: R v Crump.

The case, R v Crump, shows how the court has applied the conditions in subsection (2). In Crump, the prosecution wanted to use s 93B, but there was issue with the interpretation of the phrase “shortly after”. In this case, the issue was whether “next morning” could be included in the category of “shortly after”. The answer is yes, because the evidence was unlikely fabricated and highly reliable.

However, there are some complexities of adopting hearsay exception. The following case shows that the current Statute Hearsay exception rule well prevent irrelevant evidence prior to court.  In Lester, the evidence was admissible in court as there are original evidence of relationship and also it satisfies s 93B. The statement based on past violence “I’m scared of my husband” was admissible under s 93B but the other statement “Two people have told me that he’s hired to hitman to kill me and I’m scared of him” was not admissible under s 93B as it was hearsay.  There is another case, R v Robertson and Ors which is distinguished from Lester as the relationship with the accused prisoner was relevant to negative suicide and unable to specify timing the event. Eventually, the appellant failed to appeal.

 

 

Jury Warning & Discretion

Pursuant to ss 93C and 102, if evidence is admitted under s 93B, then the jury is given warning about potential unreliability of hearsay and it is a matter for the jury to decide. According to s 98, the court can refuse to admit a statement under s 93B if it is inexpedient to the interest of justice.

 

  • Implied admission
  • Equivocal statements are inadmissible or prejudicial: R v Woods.
  • Generally, silence cannot be construed as an admission, but the doctrinal basis for the rule is unclear. There are exceptions that apply when the accused has knowledge of facts but chooses to remain silent: Weissensteiner.

 

 

Silence can constitute an admission, provided the accusation is sufficiently specific and made in circumstances where an innocent person would be expected to deny the allegation: R v MMJ; Parkers v R.

  • When an accused has lied, it can also indicate consciousness of guilt: Edwards v R (Edward direction)
  • Conducts such as fleeing  the scene of a crime, threatening witnesses, escaping from police, and destroying or hiding evidence can constitute an implied admission, where it clearly reveals consciousness of guilt.

 


  • Confession

Confession is defined under the s 10 Criminal Law Amendment Act 1894 (Qld). It states that confession, in a criminal proceeding, induced by any threat or promised by a person in authority, is not admissible. Also, involuntary confession is inadmissible in common law: McDermott v R. Although a confession may be admissible, it’s can be excluded based on a judge’s discretion.

 

In Tofilau, a confession was not admissible since there was a promise of an advantage of joining the criminal gang made by a person in authority. The Tofilau case is a particularly important case as it sets out two standard rules of voluntariness.

  • Basal voluntariness: The confession could be exerted by anyone, but it must be free from compulsion or coercion.
  • The confession must be free from threats or inducements by a person in authority.

There is a question as to the phrase “in authority”. Usually, “in authority” includes the police or a person who is acting as an agent for the police, but it also includes a lawyer who is acting as an agent of the police. In R v NP; ex parte A-G, a lawyer of NP pursuaded the accused to confess to reduce the sentence. The court said that the lawyer was acting “in authority”, holding out a promise, because the accused knew that the lawyer talked to the police and the lawyer was acting as an agent of the police. Also, in R v Thomas, the confession was not admissible since his confession was endorsed by AFP.

If the confession is voluntarily made to friends or others without any threats, it is admissible. In Pavic, Pavic committed a serious offence, murder. Later, he confessed to his friend about the incident. The confession was voluntarily made and he knew that there was a risk to doing it. The confession was admissible and he was found guilty.

 

 

Discretion to exclude admissible evidence – Unfairness

The court exercises discretion to exclude admissible evidence on grounds of unfairness: R v Swaffield; Stephen Edward Foster v R. Under the statute, evidence can be rejected due to unfairness and expediency, in interests of justice: ss 130 and 98 EAQ. Also, if the risk of prejudicial effect outweighs probative value, to prevent miscarriages of justice, confessions can be excluded: R v Duggan. In Duggan, the trial judge stated that since the police failed to adequately warn the pursuant of the PPRA requirements, the entire admission was not admissible, only the first admission statement.

 



Witness Examination for DNA Expert Witness

 

*Following content was submitted via Turnitin.

 

 

Examination in Chief

At this stage, leading questions, or blunt questions which lead to a yes/no answer are not admissible: Shaw.[1] However, there are some exceptions to leading questions in relation to the formal matters such as name, address or occupation.

 

Q: “ Ms. Bianca, could you please introduce yourself to the jury?”

Q: “Could you tell us about your qualifications?”

Q: “Do you belong to any professional organisations?”

 

The witness must have specialised knowledge based on training, study or experience and her/his opinion is must be wholly or substantially based on the specialised knowledge.[2] The above questions are asked to examine whether Ms. Bianca is a qualified expert witness for DNA evidence: Weal.[3]


 

Q: “Ms. Bianca, I would like you to look at the DNA report. Do you recognise this document?”

Q: “Could you tell us what date the report was written and what it says?”

Q: “ Is the content in this document true and correct?”

 

The court permits Ms. Bianca to refresh her memory by referring to the document, which was previously written by her.[4] The Counsel cannot ask Ms. Bianca about her former statement in order to maintain consistency.[5] In King,[6] the court considered four circumstances where the witness used a document to refresh their memory. Occasionally, this is allowed if an expert witness, who clearly created a document but has no independent memory of all events recorded in the document: Gillespie.[7]

 


 

Q: “Can you explained to us what methodology was used and how the statistical weighting was measured?”

Q: “Can you tell us about the error rate or limitations of this technique? If someone else used the same technique could it lead to reaching a different conclusion?”

 

In order for this expert’s witness opinion to be admissible, this technique must be in a recognised field of expertise: Honeysett.[8] Failure to validate technique makes expert opinions uncertain or questionable. However, limitations or errors should be disclosed and included in reports in the form of inclusion.[9]

 


 

Cross-Examination

Improper questions are prohibited.[10] Any matters proposed to contradict the examination-in-chief of a witness must have the contradiction explained: Browne.[11]

Q: “  Ms. Bianca, you were awarded a Bachelor of Forensic Science degree in 2014 then have been employed by Queensland Health Forensic and Scientific Services since 2015. This means that you have less than three years of experience in relation to the Forensic Biology, correct?”

Q: “ You are a member of the Australian and New Zealand Forensic Science Society, correct?”

Q: “ Correct me if I am wrong. You can become a member without a test or examination, simply by paying the membership fee of that organisation, correct?

Q: “ You do not have any records for publication in relation to Forensic Science, correct? ”

 

The purpose of asking above the questions is to prove that Ms. Bianca does not have sufficient experience in DNA evidence. Special knowledge or experience is not required to join the professional organisation. Also, it seems that she does not have any publication experience regarding DNA evidence. Therefore, it is difficult to prove that she is qualified to give evidence: Clark.[12]


 

Q: “ You said that you are bound by the Society’s Code of Professional Practice. Can you tell us about content of the code?”

 

Not only can a DNA analyst provide a DNA evidentiary certificate pursuant to s 95A of the EAQ but an expert witness, who is a member of a professional organisation, complies with the code of conduct. Failure to comply with these rules cause lawyer to not rationally evaluate evidence, making them unable to draw an impartial trial result.[13]


 

Q: “ Belinda’s DNA was found to be a minor component of the DNA profile. This means it is only 14 million times more likely that it is Belinda’s DNA. This statistical calculation requires some assumptions which may lead to an error, correct?”

The purpose of asking this question is that it is not always true that forensic science techniques are always validated to analyse the evidence or deliver accurate results: Ryan;[14] Aytugrul.[15]


 

 

Re-Examination

 

Q: “ You said that the calculation, which is generated by the computer software, SAS v9.4,  requires some assumptions. What kinds of assumptions are they? Are they significantly important in this trial?”

According to s 39 of the UEL, only related matters in question can be asked of a witness during cross-examination, if the court gives leave. This time, counsel is bound by the same rules of examination in chief and is not allow to ask leading questions.[16]

 


 

 

Witness leaves the witness stand

 

Q: “Your Honour, a witness has been called in error.”

 

The prosecution may ask a witness leave the witness stand if a witness who has been called in error by the opposite party. Also, a witness has not been asked by that other party as to a matter relating a question to be determined during proceeding.[17]

 


 

Reference

 

Articles/Books/Reports

 

Gary, Edmond et al, ‘How to cross-examine forensic scientists: A guide for lawyers’ (2014) 39 Australian Bar Review 188

Field David, Queensland Evidence Law (LexisNexis, 3rd Ed, 2016)

 

Cases

 

Aytugrul v R [2012] HCA 15

Browne v Dunn (1893) 6 R 67 (HL)

Clark v Ryan (1960) 103 CLR 486

Gillespie v Steer (1973) 6 SASR 200

Honeysett v R [2014] HCA 29

King v Bryant (No 2) [1956] QSR 570

R v Ryan [2002] VSCA 176

R v Shaw [1996] 1 Qd R 641

Weal v Bottom (1966) 40 ALJR 436

 

 

Legislation

 

Evidence Act 1995 (Cth)

Evidence Act 1977 (Qld)

 

Treaties / Other

[1] R v Shaw [1996] 1 Qd R 641.

[2] Evidence Act 1955 (Cth) s79(1).

[3] Weal v Bottom (1966) 40 ALJR 436.

[4] Evidence Act 1977 (Qld) ss 19, 101(3).

[5] Evidence Act 1977 (Qld) s 101(1)(b).

[6] King v Bryant (No 2) [1956] QSR 570.

[7] Gillespie v Steer (1973) 6 SASR 200.

[8] Honeysett v R [2014] HCA 29.

[9] Edmond Gary et al, ‘How to cross-examine forensic scientists: A guide for lawyers’ (2014) 39 Australian Bar Review 180.

[10] Evidence Act 1977 (Qld) s 21.

[11] Browne v Dunn (1893) 6 R 67 (HL).

[12] Clark v Ryan (1960) 103 CLR 486.

[13] Edmond Gary and et al, ‘How to cross-examine forensic scientists: A guide for lawyers’ (2014) 39 Australian Bar Review, 188.

[14] R v Ryan [2002] VSCA 176.

[15] Aytugrul v R [2012] HCA 15.

[16] Field David, Queensland Evidence Law (LexisNexis, 3rd Ed, 2016) 199.

[17] Evidence Act 1995 (Cth) s 40.

 

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