1. Admissions of the parties
- admissions of parties made be either word or conduct - relates to civil & criminal proceedings
- rationale for this is that people are not in habit of making statements which are against their own interests unless those statements are true
2. Declarations against interest
- rationale same as for confessions/admissions - people tend not to make false statements against their interests
- person must make declaration against their own pecuniary or proprietary interest - necessary that person who makes statement knows at time that it is against their
pecuniary or proprietary interest to do so
Ward v H.S. Pitt & Co (1913)
- mother of a dead workman’s child wanted to lead evidence that workman had intended to marry her
- wanted to obtain his worker’s compensation
- court held did not fall within exception because at time of making statement not against his financial interests to do so
- court said must be a unilateral declaration 3. Declarations in the course of duty
- statement has to be one of fact not opinion
- person who makes statement has to be under a duty to make it
- necessary for person who made statement to have no motive to misrepresent facts
R v O’Meally (1952)
- police been shot, but before death made oral report to 3 police officers of similar rank to him giving description of man who shot him
- held to be hearsay - didn’t have duty to make report to those of similar rank to him - only had a duty to make report to superior office
4. Declarations as to public or general rights
- public right = something that affects public as a whole - general right = affects a class of people
- statement must have been made prior to dispute which led to litigation - must relate to things within knowledge of person making declaration - rational is that rights are not usually enshrined in statutes
- statement has relate directly to existence of right
- can’t be statement from which right can be derived or implied
Milirrpum v Nabalco Pty Ltd (1971)
- plaintiff that land was land of Indigenous people - held not to be hearsay
5. Declarations as to pedigree
Haines v Guthrie (1884)
- relates to where necessary to prove a particular familial relationship
- statement of a dead relative or spouse or whatever situation regarding pedigree of person, as long as it is made prior to litigation, is admissible
6. Dying declarations
- condition that person has actually died
- rationale - people not wanting to meet their maker having told a lie - more likely to say truth when believe about to die - don’t want to die with a guilty conscience
conditions:
- 1. maker of statement (declarant) must be dead
- 2. trial must be for declarant’s murder or manslaughter
- 3. statement must relate to cause of declarant’s murder or manslaughter - 4. declarant would have been a competent witness
- 5. declarant must have a settled expectation of death - objective (person has to be in actual danger of dying) & subjective element (person has to feel they have no chance of recovering from injuries)
R v Hope (1909)
- time that had elapsed was a very relevant consideration in considering whether hopeless expectation death
R v Rogers (1950)
- woman injured in altercation with accused
- did not seek medical attention because did not think injuries warranted medical attention
- said to police officer - ‘I’ll never got over this … he gave me a terrible beating… I’ll never see the day out … this is the end of me … I am terribly ill … I won’t be seeing you again … I won’t see the day out’
- doctor said severely bruised but did not think she was in any danger of imminent death
- Monday morning - died of brain haemorrhage
- held statement should not have been admitted because there was sufficient doubt as to whether she had a hopeless expectation of death at time
- said nothing to doctor
- nothing to her father who had come to visit her at hospital on Sunday evening
R v Golightly (1997) - victim shot
- within couple of seconds of being shot exclaimed it was Golighty who had shot him - died couple of minute slater
- Owen J not satisfied that victim had a settled hopeless expectation of death -
statement was made so soon after he had been shot - unlikely he had time to assess state he was in & to form a conclusion about his prospects
- Owen J noted standard of proof needed was a civil standard i.e. balance of probabilities
- note evidence admitted under res gestae exception although Owen J said would be necessary to warn jury
7. Declarations of testators concerning their wills - condition precedent that person has died
Sugen v Lord St Leonards (1876)
- Lord St Leonards will could not be found after his death
- his daughter, Charlotte, had taken dictation from him on a variety of matters & had written out will for him - knew contents of his will to extent she could copy out a fair chunk it from memory
- various out of court statements that had been made by her & other witnesses regarding intention to leave everything to her
- court said statements prior to creation of will were not hearsay
- court said exception can only apply to prove content of will - can’t be used to prove that will was executed or revoked in any way
8. Statements in public documents
- statement in public document is admissible to prove that what is stated in public document is true
- under common law, document must be where there is a public duty to make inquiries as to authenticity of information & to record information
- under common law, also requirement that documents be kept permanently & be available for public inspection
WA Evidence Act - s 65
65. Copies of public documents admissible in some cases
(1) Whenever in any part of Her Majesty’s dominions any book or other document is of such a public nature as to be admissible in evidence on its mere production from the proper custody, any copy thereof or extract therefrom shall be admissible in evidence in any court or before any person acting judicially, if —
(a) it is proved to be an examined copy or extract; or
(b) it purports to be signed and certified as a true copy or extract by the officer to whose custody the original is entrusted
Stohl Aviation v Electrum Finance Pty Ltd (1984) - applicants were 18 members of a partnership - partnership formed for purpose of charter flights
- partnership had taken on aircraft on lease from respondent - alleged misrepresentation had induced their entry into lease
- documents in question were copies of returns which had been lodged with Commissioner for Corporate Affairs in Victoria at time - documents identified directors
- held not to be hearsay
10. Statement of contemporaneous physical condition
- some see as part of res gestae exception
- not just limited to physical condition of person at precise time of making statement - statement & sensation/feeling need to be relatively close in time
- only thing that is admissible is evidence of what person was actually feeing - evidence about cause of feeling/sensation not admissible
R v Perry (No 2) (1981)
- doesn’t make any difference that make of original statement is available to give evidence
Ramsay v Watson (1961 - HCA)
- evidence of contemporaneous physical condition can be used as evidence of truth of that statement
UEA - s 66A
Exception: contemporaneous statements about a person’s health etc.
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
11. Evidence given on a previous occasion
- provided that trial is on same issues & that person who gave evidence is not available to give evidence again for whatever reason & that other party has opportunity to cross-examine witness
R v Thompson
- witness too ill to attend court
- transcript evidence previous proceedings read as evidence
- court listed requirements:
- (a) witness is dead
- (b) witness is unable to give evidence due to medical or mental condition - (c) the witness is out of the State & is not able to give evidence by video link or
audio link
- (d) the witness is being kept out of the way of the accused
- (e) all of the parties consent & the interests of justice do not require presence
Criminal Procedure Act 2004 (WA) Schedule 3, Clause 7:
- also covers situations where previous statements of witness can be given as evidence at trial - dead; unable to give evidence; out of State & not able to give evidence; being kept out of way of accused; & all parties consent & interests of justice do not require presence
12. Admission by others – third party confessions?
Bannon v The Queen (1995 - HCA)
- co-accused made out of court statements that arguably suggested she alone was responsible for murder
- HCA said evidence was hearsay, feeling not sufficiently reliable - majority did not expressly decide whether new exception existed
Button v The Queen (2002)
- John Button wrongly convicted murder of his girlfriend - Eric Cooke confessed to murder
- Malcolm J felt gallows confession not sufficiently reliable but other statements that Crooke had made to third parties should be admitted because confirmed other evidence
- Owen J said much to be said for proposition of allowing third party confessions, but said present Australian law does not accommodate such an exception
Hoy v The Queen (2002 - WASCA)
- Owen J’s position endorsed - no general exception for third party statements
Lawson v The State of Western Australia (2008)
- Martin CJ expressed sever reservations about whether authorities established third party confessions exception
13. Corruption exception?
Nicholls v The Queen; Coates v The Queen (2005 - HCA)
- general discussion but issue not gone on to be considered in lower courts
STATUTORY EXCEPTIONS TO THE RULE AGAINST HEARSAY