Exceptions to hearsay

Question 1

What are some common law exceptions to hearsay? (Hint 7)

Answer 1

1. Res gesta
2. Interlocutory proceedings
3. Contemporaneous statements re thoughts or feelings
4. Informal admissions (words, conduct, vicarious)
5. Confessions
6. Dying declarations
7. Telephone exception

Question 2

What are some QEA exceptions to hearsay? (hint )

Answer 2

1. s 51 public documents
2. s 74 Birth, marriage, or death certificate
3. s 84 Books of account
4. s 92; 93A documents used testimonially in civil cases
5. s 93; 93A; s 93B documents used testimonially in criminal cases
6. s 94A preliminary compliant evidence (DV and SA)
7. s 95 information from a device or process
8. s 101 prior consistent or inconsistent statements

Question 3

What are some CEA exceptions to hearsay? (hint 10)

Answer 3

1. s 63 civil proceeding marker not available
2. s 64 civil proceeding maker available
3. s 65 criminal proceeding maker not available
4. s 66 criminal proceeding maker available
5. s 66A contemporaneous statements as persons thoughts, health, or feelings
6. s 69 business records
7. s 70 tags, labels, and writing in course of business
8. s 71 electronic communication
9. s 72 Aboriginal customs etc
10. s 73 reutation as to relationship and age
11. s 75 interlocutory proceedings

Question 4

What is the Res Gesta exception to hearsay? it’s rationale?, and provide an example

Answer 4

Utterances or statements which are apart of the res gesta are admissible.

The rational being they are part of the transaction and are admissible on the basis that their spontaneity enhances their reliability and reduces risk of concoction

Eaton v Nominal defendant: The statement was made 10 minutes after the event, when the speaker was giving an account of what occurred - res gesta failed

Question 5

Is hearsay admissible in interlocutory proceedings?

Answer 5

Yes provided that it and the source are clearly identified (see also s 75 CEA)

Question 6

Contemporaneous statements re thoughts or feelings is an exception to hearsay…(1) explain (2) and provide three examples.

Answer 6

CL; s 66A CEA - When a person makes statements about current thoughts or feelings, that statement is admissible to prove that he or she had those thoughts or feelings at the time.

Common examples:-
(1) pain and suffering in a PI case;
(2) police officers reasonable belief;
(3) That A intended to meet B (Walton v R)Murder victim’s statement was evidence that she met the accused at the material time.

Question 7

CL - Dying declarations are an exception to hearsay (1) discuss and (2) what is the rationale.

Answer 7

CL - dying declarations - in homicide matters statement made by the victim when they were expecting to die regarding the circumstances of death and ID of suspect are admissible as an exception to hearsay in homicide matters

The rationale being the reliability is enhanced because a person who is about to die has no reason to lie.

NB - This can sometimes fall within the res gesta exception, however when that doesnt apply it can be dying declaration.

s 93B QEA; s 65 CEA (broader)

Question 8

What is the ‘Telephone exception’ hearsay rule?

Answer 8

Pollitt v The Queen: Statements made during or immediately after a telephone conversation are admissible to identify the other party to the conversation (child saying hello daddy…to ID the defendant).

Question 9

Informal admissions are an exception to hearsay rule (1) discuss and (2) what is rationale.

Answer 9

CL - An informal admission by a party is an exception to hearsay. Admission is a statement by a party that is adverse to that parties interest in the current proceeding.

An informal admission can be made by words, writing, conduct (silence, consciousness of guilty (lies, flight, tampering with evidence)), or vicariously (lawyers, agents, co-conspirators).

The rationale being what a party says against himself is likely to be true, and a confession… well proved is the best evidence of what happened.

Question 10

Where the prosecution relies statements by the defendant which contains a mix of both exculpatory and inculpatory statements does the crown have to tendered the entire document? and if so why?

Answer 10

Nguyen v R - Where the Prosecution relies on document which contain admissions by the defendant the whole context of the admission must be tendered, including self serving statements (e.g. records of interview).

The rationale being that it avoids the risk of an incomplete picture of any admission.

Question 11

Are purely exculpatory statements admissible?

Answer 11

No they are inadmissible hearsay, however they may be used in response to an imputation of recent invention.

Question 12

What is a confession?

Answer 12

A confession is either a direct admission of guilt, or an admission of some fact of facts tending to establish guilt.

Confession: I shot X (direct admission of physical element)
Admission: The gun that was used to shot X was mine.

Exception to hearsay - rationale being what an accused says against himself likely to be true and is best evidence - s 81 CEA

Question 13

Confessions are subject the test of voluntariness.

Answer 13

A confession is not admissible UNLESS it is shown to have been voluntarily made, meaning the will of the accused must not be overborne (duress, inducement etc) (McDermott v R).

A confession cannot be voluntary if it is preceded by an inducement by a person in authority, unless the contrary is shown by the prosecution (see also s 10 Criminal Law Amendment Act).

Question 14

Is a confession made to an undercover officer or trusted friend involuntary?

Answer 14

No - R v Marks

The rationale being at accused could not have known or believed that they were talking to a person connected with authority.

Question 15

Where an inducement is offered by someone not in authority, who must satisfy the judge the will of the accused was overborne?

Answer 15

The accused.

Deokinanan v The Queen - inducement offered by trusted friend.

Question 16

Does intoxication make a confession involuntary?

Answer 16

No unless it is so marked as to deprived the the suspect of free will (R v Lewis) or to suggest a degree of unreliability that discretionary exclusion is needed.

Question 17

What an inducement for the purpose of s 10 criminal law amendment act?

Answer 17

(1) threat of detriment if no confession is made or (2) promise of material benefit if one is made by a person in authority.

Question 18

The question of whether voluntariness is a question of admissibility for the judge and whether a confession was made is a question for the jury…true or false?

Answer 18

True

Question 19

Admission by conduct - silence - discuss

Answer 19

Silence in response to allegations by a persons of authority is no admission, however where the questioner and suspect are on equal terms the failure to respond may be tantamount to assent (Parkes v Mills - “why did you stab her” no response from accused), however if there is a reasonable explanation for failure to respond may not be admissible.

This is because there is a reasonable expectation that one would deny the allegations.

Question 20

Admission by conduct - lies - discuss

Answer 20

R v Edwards - A lie may be treated as an admission of guilt where (1) it indicates knowledge of the offence (2) it was told because the accused knows that the truth would condemn them and (3) there is no innocent explanation for the lie (such as shock, covering from someone else, shame).

i.e. The accused lie about x and the inference to be drawn from that the accused lied because they committed the offence.

Where an admission is not a fair inference from the lie, the jury must be told that it only goes to credit.

Question 21

Admission by conduct - destruction of evidence, flight - discuss

Answer 21

R v Edwards - An accused persons conduct, destroys evidence (Plomp v R) or runs from police (flight - R v Melrose), can be treated as an admission of guilt where (1) it indicates knowledge of the offence (2) they did that conduct because they knew by remaining or the evidence would inculpate them and (3) and there is no innocent explanation for the conduct.

the conduct demonstrates a consciousness of guilt

tried to merge them into one card

Question 22

Informal admission - conduct - Vicarious admission - lawyer

Answer 22

There is a presumption that a lawyer or agent is acting with expressed, implied, or ostensible authority from the defendant to do so.

As such, any confessions or admissions made by lawyer during the proceeding admissible as vicarious admissions (R v Delgado-Guerra)

Question 23

Informal admission - conduct - Vicarious admission - co conspirator -

Answer 23

An accused may make a vicarious admission by an agent who is expressly or implied authorised to act on their behalf which includes a co-conspirator (R v Tripodi) (‘partners in crime’)

Firstly, there must be evidence of the conspiracy or common purpose, once that is established any act or things done by the participants which are in furtherance of the conspiracy or common purpose are deemed to have been done with the authority of the other conspirators and are admissible as vicarious admissions.

Question 24

The QEA contains the common law documentary exception to hearsay for public documents. What is the section and what is the rationale for this exception?

What is the CEA equivalent provision?

Answer 24

s 51 QEA – public documents are an exception to hearsay where it was made by a public officer pursuant to a duty to inquire or to record facts for a public purpose and the document is reasonable available for inspection by members of the public it is evidence of any relevant fact.
The rationale being the reliability of the document is enhanced because of the assumption that errors will be corrected by the public.

N.B. it is not necessary that the recorded of the document has knowledge of the information (cf s 92(1)(b) or s 93(1)(a)).

s 156 CEA

Question 25

QEA - documentary hearsay - Books of account - discuss admissibility

Answer 25

S 84 QEA – An entry made in a book of account, document used to record financial transactions in the course of an undertaking, is evidence of what is recorded therein subject to s 85 proof and s 86 verification of the book of account. Companies document may be a book of account provided they have some financial character... Examples: Bank records, ledgers, profit and loss accounts, travel claim forms, record of out going or income stock, records orders placed by customers, company directors business diary, medical records (regarding matters dealt with or produced), business memo containing business figures, financial reports and email communication, summary of financial reports prepared by an expert (provided that primary records are provided to the court).

Question 26

s 92(1)(a) QEA exception for ' first hand hearsay' in civil proceedings - discuss

Answer 26

s 92(1)(a) first hand hearsay/knowledge exception - Where direct oral evidence of a fact would be admissible, any statement contained in a document tending to establish that fact, is admissible if the marker of the statement had person knowledge and is called as a witness...subject to (2)...see ss(4) regarding 'made by a person' Basically if a witness could give oral testimony of the fact any document which contains that oral testimony is admissible. N.B. The maker is a person with first hand knowledge of the facts recorded they do not necessarily need to be the maker of the physical record. I.e. The statement from a client could be recorded in a solicitors file note. Example: Hand written notes - A witness watched a video recording and immediately made notes of the contents. The video was not available at the hearing and the notes were admitted under s 92(1)(a)-(4)(a)

Question 27

s 92(1)(b) QEA exception for business records in civil cases - discuss, and provide examples.

Answer 27

s 92(1)(b) QEA - business records - where direct oral evidence of a fact would be admissible, any statement contained in a document tending to establish that fact, is admissible if the (b) the document was made in the course of the undertaking from information supplied by persons who had personal knowledge of the information supplied and the person is called as a witness...ss(2) N.B. A statement maker is either a person who records his or her knowledge (i.e. family business) or who supplies person knowledge directly or indirectly to another person, who then records it in the ordinary course of the undertaking. Example: Where X supplies information to Y that Z has ordered goods and Y enters that information into a document. s 92(1)(b) would apply to the document because it was made in course of undertaking, the information supplied by persons who had personal knowledge, and X is called as a witness. Also s 84 QEA as well.

Question 28

s 92(1) QEA uses the term "where direct oral evidence would be admissible"...this section is only an exception to the rule against hearsay and not any other rule of evidence: opinion evidence, character evidence, etc ...true or false? If a statement under s 92 contains inadmissible parts what should happen?

Answer 28

True the inadmissible part should be withheld from the jury.

Question 29

What is an interesting unintended consequence of s 92 regarding evidence in chief?

Answer 29

Interesting: Generally a witness is not permitted to give evidence of accreditation in EIC, however an unintended consequence is that it allows prior consistent statements to be admitted.

Question 30

s 93 QEA exception for business documents in criminal proceedings - discuss and provide an example

Answer 30

s 93 QEA - where oral evidence of a fact would be admissible, any statement contained in that document tending to establish that fact is admissible where (a) the document forms part of a record relating to TRADE OR BUSINESS from information SUPPLIED by any persons who had or may reasonably have knowledge of those matter and (b) the person who supplied that information is (i) dead or unfit (ii) out of state not practicable to secure attendance (iii) can;t be found (iv) can not reasonably supposed to remember given the passage of time etc Example: Diary notes kept by a managers containing records of hearsay entries; Airline ticket tendered as circumstantial evidence of opportunity, invoice books were admitted to prove conspiracy to engage in unlicensed fishing, Managers diary notes of dealings (later transferred to a spreadsheet) with the defendant were admit to prove theft by an employee.

Question 31

What are the differences between 93 and 92 of QEA? Hint 4

Answer 31

1. S 93 only provides for admissibility of 'business records' and does not have a s 92(1)(a) equal; 2. The s 93 statement is only admissible if the person is absence for reason listed in 93 (2); 3. Unlike s 92 there is no question regarding tendering the document and the witness giving orally testimony (obvs because s 93 can not be invoked if witness does not fall within s 93(2). 4. s 92 uses the words 'made in course of undertaking' where as s 93 uses the words 'trade or business'...s 93(2) defines business as including governmental and quasi government entities (public transport ect) where as s 92 uses the word undertaking which includes public administration, and business carried on by the crown or any other person.

Question 32

s 93A QEA

Answer 32

s 93A QEA a statement made by a child or person with an impairment of the mind is admissible if (a) the person had personal knowledge of the facts at the time of making the statement and (b) is available to give evidence

Question 33

s 93B QEA

Answer 33

s 93B QEA in a prescribed criminal proceeding where a person with personal knowledge of a fact made a representation (oral, written, conduct etc) of the fact in a document and is not available due to death or incapacity the hearsay rule does not apply where ss(2)(a)-(c) applies.

Question 34

s 94A

Answer 34

s 94A QEA preliminary complaint statements for DV or SA

Question 35

s 95

Answer 35

s 95 QEA where direct oral evidence of a fact would be admissible a statement contained in a document or thing produced wholly or partly by a device of process tending to establish that fact is admissible. ss(2) presumption process of device produces that document subject to certificate ss(3)

Question 36

Question: John, Lennon, and Luay work for Townsville Chair Suppliers. Luay walks up to John in the lunch room and says that he just finished shipping an order of 10 chairs to the Plaintiff's business. John then walks into Lennon's officer (accounting officer) that Luay told him that he just shipped the most recent order of chairs. Lennon types into his MYOB product shipping records that 10 chairs have been shipped. Is the product shipping document admissible as evidence to support the assertion that 10 chairs were shipped to the Respondent business? N.B. The litigation concerns breach of contract as the plaintiff is saying they only received 9 chairs.

Answer 36

s 59 CEA; R v Subramanian - if the accounting record is relied upon for the truth of which it asserts, 10 chairs were shipped on T/D/P...this is hearsay s 84 QEA; s 69 CEA - the document might be considered a book of account/business record given the nature of the information, however would need to be authenticated in the usual way (86 QEA; 48(1)(e) CEA)...issue may be that it is second hand hearsay which may reduce weight (s 102 QEA) Consider also s 92(1)(b)QEA; s63-64 CEA...

Question 37

Question: A CCTV camera footage, and smoke detection devices recorded an event. These devices automatically record and store data. The matter is contested (criminal proceeding). The footage and data are downloaded from the internal system by a person with management of control of the device and stored on separate USB's. Is the footage and smoke detection information admissible? If so under what provision?

Answer 37

sch 3 QEA statement includes representations of fact...by a computer The statement contained in the document has been automatically generated by the computer. s 95 QEA will admit the document subject ss(2) presumption and supporting certificate from ss(3). nb information supplied by a machine is not really hearsay

Question 38

Example: A defendant was charged with unlawful access of information. He log into a police computer and unlawfully search his best friends name on QPRIME. The prosecution obtain a 'key stroke' report from QPRIME which shows what the user clicked on and typed whilst using the program. The prosecution wish to rely upon the key stroke report to prove the offence. Is the report admissible?

Answer 38

sch 3 statement includes representations of fact made by a computer... the report contains out of court statements. If relied upon as the truth that the defendant did unlawfully access qprime would be hearsay (subramanian), however s 95 QEA, subject to ss2-3, and would make the document admissible..

Question 39

Example: A plaintiff was suing a defendant for contaminating his soil with lead. The plaintiff engaged a expert to conduct soil sampling and testing to determine the levels of lead. The expert collected raw data from the soil tests and inserted that information into a computer program. That computer program analysed the data and generated a report regarding the levels of lead in the soil. The plaintiff wishes to rely upon the report as evidence of the lead levels in the soil. Is the report generated admissible? If so, how?

Answer 39

The report is prima facie documentary hearsay if replied upon as proof of the lead levels in the soil s 95 QEA exception to hearsay The expert could give direct oral evidence regarding the data imputed into the computer program. Provided that the computer program was running properly and subject to ss2-3...the document would be admissible

Question 40

Information from a computer is often admissible as a book of account (s 84 QEA), or ordinary business record s92 or s 93. If a statement from a computer or device satisfies those provisions does it also need to comply with s 95?

Answer 40

no s 103 QEA - provisions of the part are in aid of and as alterative to one another

Question 41

What are some of the controls for documents tendered under part 6 of QEA? (hint 3)

Answer 41

s 98 - rejection of evidence - court may reject the admission of any document tendered under this part if in the interest of justice s 102 - the weight to be attached to statements admitted under this part will be determined with regard to (a) the contemporaneity of the information recorded and (b) where the marker of the statement had any incentive to conceal or misrepresent the facts s 103 QEA

Question 42

s 101 QEA

Answer 42

s 101(1)(a) where a previous inconsistent or contradictory statement is proved by 17-19 it is admissible of any fact there in (b) a previous consistent statement is admissible for the purpose of rebutting recent invention (3) where a witness uses a document to refresh memory and is crossed on that document it may be admitted into evidence and is admissible

Question 43

What section makes admissible proof of judicial proceedings?

Answer 43

s 53 QEA

Question 44

what section makes birth certificates admissible?

Answer 44

s 74 QEA

Question 45

Question: A witness is being cross examined about a prior inconsistent statement. The witness can't remember making the statement, however after the cross examiner puts the circumstances to the witness in which the statement was made the witness remembers and admits to making the prior inconsistent statement. The cross examiner tenders the prior inconsistent statement under s 101 QEA. Should an objection be taken by the opposing counsel?

Answer 45

yes because to be admissible under s 101 the statement must be proved by s 17 (hostile witness application), 18 (proof of previous inconsistent statement), or 19 (cross examination to written statement without being shown it). The statement is not proved by those provisions because the witness admitted to making the prior statement.

Question 46

Question: Your instructing solicitor asks you what type of statements are admissible under s 101 QEA. What is your response?

Answer 46

s 101 QEA admits prior inconsistent statements which are proved by s 17, 18, 19, prior consistent statements which are used to rebut recent invention, s 94 material evidence to contradict a witness not called but who provided a statement under s 84, s 92,93, 93A, or notes used to refresh memory that go into evidence (rare).

Question 47

Are prior inconsistent statements which are not documented, if proved, admissible under s 101 QEA?

Answer 47

Yes - s 101 does not require the statement to be in writing.

Question 48

What is judicial notice? (refer to CL, QEA, CEA)

Answer 48

A court has the discretion to dispense with the requirement that a party to adduce evidence of a fact which is regarded as common knowledge or facts which are notoriously known because to insist on strict proof would be a waste of time (CL Holland v Jones) (see also s 144 CEA) (see s 41-42 QEA mandatory judicial notice).

Question 49

Question Civil proceeding. Breach of contract failure to conduct landscaping in accordance with client’s instructions. Respondent made hand written notes after conversation with the client/plaintiff about what he wanted done (not contemporaneous). The respondent wishes to rely upon notes as apart of his defence namely the work was completed in accordance with instructions. Part A: Is the document relevant? Part B: Is the document admissible? Part C: If not admissible, is there an exception to the exclusionary rule which would apply?

Answer 49

Notes are relevant to the issue of the terms of the contract…issue in dispute The document contains out of court statement which if relied upon testimonial as to the truth of the conversation would be inadmissible hearsay S 92(1)(a) QEA may apply as the respondent can give direct oral evidence of the facts contained within the note, has direct knowledge of the content of the notes, and is called as a witness S 92(1)(b) Notes were made in the course of the undertaking, the business, and the supplier of the information is the respondent who has direct knowledge…and is called as a witness S 102 weight may come into play depending upon how much time between conversation and recording of notes S 100 notes if admitted can not be used to corroborate the testimony N.B. CEA provisions s 64 CEA; s 69 CEA

Question 50

Evidence of a statement to a witness by a person who is not himself called as a witness may or may not be hearsay (Subramaniam v DPP). Discuss.

Answer 50

A statement will be hearsay and inadmissible where the purpose of relying on the statement is to establish the truth of what is contained in the statement. It is not hearsay when it is proposed to establish by evidence, not the truth of the statement but the fact it was made.

Question 51

When can a jury act on an admission? (Hint: Burns v the Queen)

Answer 51

Where they are satisfied that it was made and it was true (Burns v The Queen (1975) 132 CLR 258, 261)

Question 52

Question: A Tom works for a bank. Tom sent an email to his boss from his work email account regarding about whether he was going to the football tonight. The Boss never replied. Tom eventually sues his boss for unfair dismissal and inter alia include every email he ever sent which includes the above email about the football. Tom says that the email is circumstantially relevant, and is admissible as a business record (s 92(1)(b) QEA; s 69 CEA)...given it was sent from his work email and stored on his work computer. Is Tom correct regarding his claim it is a business record?

Answer 52

No - The representations in the email were not made for the business purposes and related purely to personal matters...and is not a business records as it was 'not made in the ordinary course of business'...however might be admissible under s 92(1)(a) QEA or s 64 CEA (first hand hearsay)

Question 53

Under s 92(1)(b) 'business record'...does the person who supplied the information need to have personal knowledge of the information?

Answer 53

s 92(1)(b) it not essential that the compiler of the record have personal knowledge of the fact...it is sufficient that th information was supplied (directly or indirectly) by someone reasonably supposed to have knowledge of the it...the information might be third hand by the time it is recorded in the business record, and it is often that the source can not be found or identified...so that is a common excuse under ss(2)...however this will reduce weight on the material.