LAWS13010 Evidence and ProofTopic 9 – Further Exceptions to the Hearsay Rule

Learning Objectives

At the end of this topic, you should be able to:• Describe the hearsay exception applying when the original

witness is deceased;• Describe the res gestae exception and its rationale;• Explain the exception for contemporaneous statements;• State the “telephone rule” exception and its rationale; and• Describe some key differences between the common law and

Uniform Evidence Act approaches to hearsay exceptions.

The Rule Against Hearsay

Evidence of a statement made to a witness by a person who is not himself called as evidence may or may not be hearsay.

It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement.

It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.

Subramanium v Public Prosecutor

Exceptions

The exceptions to be discussed today are not united by any particular rationale.

However in each case you can see that the common law has consciously balance the probative and prejudicial effects of each use of hearsay.

These exceptions reflect circumstances where the common law view is that the probative potential of the evidence outweighs the prejudicial potential of its admission.

Remember, however, that even though evidence is admitted, its weight is a matter for the court.

Deceased Witnesses

Deceased Witnesses are clearly not available to give evidence in court.

What if they have made relevant statements to another person who IS available? Should one party win just because the other party's principal witness has died?

On the other hand, the statement by thedeceased person was not made under oath.

Should the opposing party have to faceevidence they can't cross examine?

Statements Against Own Interest

If the statement made by the deceased person was against their own pecuniary interest, it is considered sufficiently reliable that it should be admitted.The Sussex Peerage Case (1844) 8 ER 1034

This exception, somewhat curiously, is limited to statements against the person's pecuniary interests – statements against other interests do not fall under the rule.Bannon v R (1995) 185 CLR 1

Consequently this exception is not available in criminal trials.

Statements Under Duty

I the deceased had a very clear duty to make certain observations and report them, the observations so made would be admissible.

There must be “a specific and twofold duty - a duty to do a particular act and to record, or maybe report, it when done. That duty must be ... a regular duty to report matters of the kind in fact reported to an employer or superior officer”R v O'Meally [1952] VLR 499

There are scant uses of this exception, perhaps because the parameters are so narrow. Perhaps the report a teacher, under a duty to report suspected chils abuse, who reported concerns verbally to a school principal and then died, might be admissible under this exception.

Dying Declarations

Useless latin to impress the impressionable: A dying declaration is said to be “in articulo mortis”, meaning “at the point of death”

In criminal homicide trials, the statement of a dying victim, identifying their killer, is admissible despite the hearsay rule, but only if at the time they made the statement that held, in their own mind, no hope whatsoever of recovery.

Mosley and Morrill's Case (1825) 168 ER 1200

The rationale was stated in a modern case dealing with the issue as “an acceptance that, when a person knows that death is imminent, any earthly motive to lie will fall away and there will be strong motivation to speak truly.” R v Buzzacott [2010] SASC 234

Are you comfortable with this rule? Is a person who has just received a mortal wound likely to give reliable evidence?

Testamentary StatementsIn the case of a contested will, statements of the testator can be evidence of the state of mind of the testator at the time they made their will.

However, those statements cannot be evidence of the veracity of their actual contents.Hughes v National Trustees (1979) 143 CLR 134

My son has been sponging from me for years and so I have decided to leave everything to my daughter

This statement is evidence that the testator turned his mind to whether the son should be a beneficiary.

This statement is not evidence that the son had been “sponging” from him.

Is this a hearsay exception at all?

Unavailable Witnesses and UEA

The Uniform Evidence Acts refer to witnesses who are “unavailable”, not just deceased.

In civil cases, statements by an unavailable witness may be described to the court by a person who “saw, heard or otherwise perceived” the representation being made.Evidence Act 1995 (Cth), s.63

In criminal cases, statements by an unavailable witness may be given provided that same condition is met, and one of several additional conditions are met.Evidence Act 1995 (Cth), s.65

Those conditions are not terribly onerous, for instance if the prior statement “was made in circumstances that make it highly probable that the representation is reliable” [s.65(2)(c)]

The Res Gestae Exception

Even Darth Vader hates bank fees.

Statements which are part of the res gestae are part of the action. They are things said during the course of the action.

Res gestae statements are therefore not narrative. A statement describing the action is not res gestae, no matter how soon after the action it is made.

The rationale is that a statement made in the course of the action isnot some-thing said, it is something done. It is an integral part of the conduct and therefore can be described by witnesses.Adelaide Chemical v Carlyle(1940) 64 CLR 514

Accompanying & Explaining

The first specific type of res gestae situation is where the words spoken at the time of an action, by the person acting, accompany and explain the action underway.

Consider R v Benz.

Benz and her mother were engaged in the disposal of the body of the mother's de facto, who had died of stab wounds

The two had just lowered the body from a bridge, into a river, in the early hours of the morning

A passerby noticed them and slowed to ask if they were OK D said “It's all right, my Mother's just feeling sick”

ADMISSIBLE as evidence of the relationship between the two.R v Benz (1989) 168 CLR 110

Participants and Observers

A statement will qualify for a res gestae exemption if it is made by a participant in the events, and is “so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded.”

Ratten v R [1972] AC 378

D was accused of killing his wife with a shotgun He claimed the gun went off while he was cleaning it Minutes before, the victim had called the

switchboard in a “hysterical” state, givingher address and asking to be put throughto the local police station

Evidence of the telephone operator wasAdmissible as evidence that the victim was

in great fear immediately before the shooting.

Contemporaneous State of Mind

Evidence may be tendered under a res gestae exception to the hearsay rule if the evidence shows the state of mind of a person, at a time when that state of mind was a relevant fact in issue.

An obvious use of this exception is in sexual assault cases, where statements made by the complainant might be adduced to demonstrate her state of mind in relation to consent.

See:

Bull v The Queen (2000) 201 CLR 443 (Evidence that the complainant attended the home of the defendant in order to “do one of her fantasies”)

Bolton v WA [2007] WA SCA 277 (Evidence of Instant Messages on ICQ during which the defendant and complainant arranged a sexual liaison)

Immediate Sensation

OUCH!!!

A statement by a person about how they are feeling at a particular time is admissible that they are feeling that way.

However such a statement is not evidence of how they came to feel that way, or who caused them to feel that way, even if they say so quite explicitly.

If a man says to his surgeon “I have a pain in the head” … that is evidence; but, if he says … “I have a wound”; and was to add, “I met John Thomas, who had a sword, and ran me through the body with it”, that would be no evidence against John Thomas

R v Nicholas (1846) 175 ER 102

Contemporaneous Thoughts & Feelings

Fair Warning – This bit gets confusing.

This exception is not a res gestae exception, but it is so similar that cases for one exception are cited in relation to the other.

This exception occurs when an unavailable witness makes statements which explain their state of mind or emotions, but they do so outside the context of the event itself.

1. A woman is found strangled in her bedroom2. There are no signs of struggle anywhere else in the house3. A painter/decorator is arrested for her murder4. The husband of the victim states that she had been discussing

employing this decorator to renovate the bathroom.Admissible to indicate the reason why there may have been no struggle elsewhere in the house. R v Hendrie (1985) 37 SASR 581

The “Telephone Exception”

If one party to a telephone call identifies, during or immediately after the telephone call, the person that they have been speaking to, then this may be admitted into evidence as proof of the identity of the other party to the phone call.

Remember this evidence is not conclusive. It will always be open to the other party to lead evidencesuggesting, for instance, impersonation.

This is a very recent rule, having only beenset down in 1992, in R v Pollitt (1992) 174 CLR 558.

UEA and Non-Hearsay Uses

The Uniform Evidence Acts contain a remarkable provision which states that once hearsay evidence – including remote hearsay - has been introduced for a non-hearsay purpose, it can then also be considered for a hearsay purpose. Evidence Act 1995 (Cth) s.60

The judge in each case retains a discretion to prevent this happening if the prejudicial value of the evidence outweighs its probative value. Evidence Act 1995 (Cth) s.136

How do you feel about this provision?

Does it just reflect the reality that once a jury hears evidence they are likely to use it in all contexts? Or does it expose defendants to a new and unfair source of evidence which previously would have been excluded?

Requirements of Notice

Under the Uniform Evidence Act, a party which intends to rely on a general hearsay exception must give “reasonable notice” to the other party, including advising the other party of the hearsay exception upon which they intend to rely.

Uniform Evidence Act 1995 (Cth) s.67

Review

In this topic, you have learned:• the hearsay exception rules which permit some statements by

witnesses (now deceased) to be admitted;• the wider provisions available under the Uniform Evidence

Acts relating to unavailable witnesses;• the res gestae exceptions, which apply when the words

spoken were “part of the action”;• the exception for statements which, although note res gestae,

demonstrate the thoughts and feelings of the witness;• the “telephone exception” which allows the identification of

the party to a telephone call; and• some additional provisions under the UEA.