Understanding the Relevance and Hearsay Rules in Evidence Law, Study notes of Law

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Evidence and Proof

Exam notes

Table of contents

• Laws of evidence
• Relevance
• Hearsay
• Hearsay exceptions
• Discretionary/mandatory exclusions
• Opinion
• Tendency and coincidence
• Credibility and character
• Admissions

Whether a ‘logical connection’ exists between evidence and a fact in issue is ‘an objective test grounded in human experience, on the application of which minds may differ ( Harrington-Smith v WA , Lindgren J [11]). Evidence must be relevant to the determination of a fact in issue. When determining whether evidence is relevant or not, the court must be able to articulate how the evidence connects to the facts in issue: ‘In order to establish relevance, it is necessary to point to a process of reasoning by which the information in question could affect the jury’s assessment of the probability of the existence of a fact in issue at the trial’ ( Washer v WA , Gleeson CJ, Heydon and Crennan JJ [5]). Palmer v R — High Court held that a criminal defendant’s lack of knowledge about the motives a complainant in sexual offence proceedings might have to fabricate the complaint were not relevant.

Facts in issue

In criminal proceedings, a fact in issue is typically an element of a criminal offence that must be made out in order for criminal liability to arise. A fact is not ‘in issue’ if both sides agree that the fact existed, or that the event occurred. Therefore, if evidence relates to a ‘fact in issue’ that is not actually disputed by both sides, the evidence is not relevant under the Act.

Provisional relevance

In some instances, the relevance of evidence will depend on the existence of another fact. For example, the relevance of the alleged murder weapon will depend on the acceptance of evidence about the fatal wound being consistent with the use of the alleged murder weapon. If relevance depends on the court making another finding, the court may make a finding of provisional relevance. Section 57 (1) If the determination of the question whether evidence adduced by a party is relevant depends on the court making another finding (including a finding that the evidence is what the party claims it to be), the court may find that the evidence is relevant— (a) if it is reasonably open to make that finding; or (b) subject to further evidence being admitted at a later stage of the proceeding that will make it reasonably open to make that finding. This section permits courts ‘to say evidence is provisionally relevant where the relevance of any particular piece in the jigsaw cannot be determined conclusively until the court has completed the jigsaw’ ( Nodnara v Deputy Commissioner of Taxation ).

Hearsay

The hearsay rule

The hearsay rule excludes evidence of a ‘previous representation’ when it is adduced to prove the existence of a fact that the person intended to assert by the representation. Section 59 (1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation. The hearsay rule is justified on the basis that the out of court communications of a witness about what they observed are not made under oath, do not occur in view of the fact-finder, and cannot be tested under cross- examination. Hearsay evidence is prima facie excluded not just because it is necessary unreliable, but because it is difficult for the tribunal of fact to determine what weight it should be given. If a witness statement includes “I said”, “he said”, “she said”, one should immediately consider whether the hearsay rule applies.

Scope of the hearsay rule

There are four requirements for evidence to be caught by the hearsay rule:

1. the evidence is a ‘previous representation’;
2. the previous representation was ‘made by a person’;
3. the evidence of a previous representation is adduced to prove the existence of a fact asserted by the representation (‘purpose or use of evidence’);
4. it can reasonably be supposed that the person who made the representation intended to assert the existence of that fact (‘intention of declarant’).

‘Previous representation’

A ‘previous representation’ is any representation (i.e. words, silence, conduct, or statement of opinion) made between the witnessed events and the start of the trial. In the Act, it is defined as ‘a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced’.

The use of the word ‘intended’ represents a significant departure from the rule at common law. At common law, the hearsay rule extended to the declarant’s unintended or implied assertions. This would mean that facts which were assumed by the declarant would form part of the declarant’s ‘assertions’ and would be limited by the hearsay rule. Under the Act, the focus on the facts the declarant ‘intended’ to assert narrows the scope of the hearsay rule, and in turn, allows more evidence to be admitted. In R v Hannes , the court’s interpretation of s 59(1) threatened to look past the legislature’s use of the word ‘intended’ and reintroduce implied assertions within the scope of the hearsay rule. However, the better view is that assumptions and ‘implied’ assertions are not intended by declarant’s of representations — and are therefore beyond the scope of the excluding effect of the statutory hearsay rule. R v Hannes — accused was charged with insider trading; prosecution alleged that the accused had insider knowledge from his work and used the alias of ‘M Booth’ to purchase shares. Defence sought to rely on evidence found in the accused’s notebook which referred to ‘Mark’ as if he was a real person. Under a strict interpretation of the Act, the evidence would fall beyond the hearsay rule and could be adduced: the person who made the representation (by writing the note) does not seem to have intended to assert the existence of Mark, rather the existence of Mark is implicit in the representation — it is something which is assumed but not asserted. Despite this, Spigelman CJ stated: ‘It is arguable that the word ‘intended’ in s 59(1) goes beyond the specific fact subjectively adverted to by the author as being asserted by the words used. It may encompass any which which is a necessary assumption underlying the fact that the [declarant] does subjectively advert to’ ([361]). Gans and Palmer argue this interpretation is undesirable, and has the effect of reinstating implied assertions and assumptions back within the scope of the hearsay rule. Walton v The Queen provides another example of the distinction between the hearsay rule under the Act and at common law. Walton v The Queen — witnesses heard a young girl answer a mobile phone with the greeting “Hello Daddy!”; prosecution sought to introduce by calling those witnesses who had overheard the young girl’s response on the phone. Court held that “Hello Daddy!” was a non-assertive statement. When she responded to the caller, she did not intend to assert something to the effect of ‘I know that’s you, Daddy!”. In contrast, had the young girl responded by saying, “It’s Daddy on the phone…”, this would be an assertive statement. At common law, both ‘Hello Daddy!” and “It’s Daddy on the phone…” would be captured by the hearsay rule. Under the Act, only the second example would be captured by the hearsay rule and be considered prima facie inadmissible.

Establishing intention

How do we determine what the declarant intended to assert? The form of a representation will be a strong indicator of the intended assertion of the representation.

For example, if a witness overheard a gang of criminals talking, and the members of that gang consistently called one of the members ‘Pablo’, this would not be hearsay when used to prove that the gang member’s name was Pablo. However, if one of the gang members introduced another member to the witness, “this is Pablo”, it would constitute hearsay when used to prove the member’s name was Pablo. To determine whether the hearsay rule applies, ask ‘ why is the previous representation being led; what is it that the prosecution seek to prove by adducing evidence of the previous representation? ’.

• Is it being led to prove the existence of a fact that the person who made the representation intended to assert? If yes, then it is caught by the hearsay rule.
• Or is the person’s past representation merely conveying some other information that the person who made the representation did not intend to assert? If yes, then it is not caught by the hearsay rule.