(7) HEARSAY

Availability of the maker of the OOC statement

Alexander indicates that courts have been prepared to relax
HEARSAY
the hearsay prohibition where the maker of the statement is
Rationale for hearsay rule:
available to testify but unable to recall the exact assertions
If a party wants to put observational testimony before a
made.
court, then the witness making the observation must be
(Police were permitted to give evidence of a witnesss
called to be sworn, examined & cross-examined.
OOC identification of the Acc, after the witness had
It ensures that the testimony of observers to events is
testified to the fact of an OOC identification but could not
given directly to the court & not reported indirectly
specify whom she had then identified. The availability of
through others.
the witness to be cross-examined on the circumstances of
Common law hearsay rule excludes an out-of-court statement
the prior identification may have mitigated any possible
tendered for the purpose of establishing the truth of a fact
unreliability of the polices hearsay evidence.)
asserted in that statement.
Test: Are you relying upon the truth of facts asserted in
4 Issues:
the statement? Yes hearsay.
1) In what circumstances do statements have an original use,
S 59 CEA: A previous representation is inadmissible for the
as opposed to a hearsay use?
purpose of proving the existence of a fact that the maker
Ie. Is it being tendered because it is relevant
intended to assert in the representation.
independently of the truth of the fact asserted in it?
So assertions of fact in out-of-court statements/conduct
2) Does the hearsay rule extend to implicit assertions in out(representations) are hearsay only if there was an
of-court statements?
intention by the maker to assert that fact.
Ie. Are implicit assertions hearsay?
The hearsay rule is a purposive rule must ask why the

3) Does the hearsay rule extend to implicit assertions in outstatement is being tendered, or what purpose you are relying
of-court conduct?
on the statement for.

4) Does the hearsay rule extend to assertions which are not

Myers v DPP; Bannon v R: The common law is reluctant to
made in narrative of past events?
create exceptions to the hearsay rule, even where the evidence
in question is of clear probative value & on common sense
grounds should really be admitted.
1) WHEN IS AN OUT-OF-COURT STATEMENT
This being so, judges try to read down the hearsay
TENDERED AS ORIGINAL / HEARSAY
prohibition so that probative evidence is not excluded by
it.
EVIDENCE?
Bannon v R
*Acc sought to admit OOC statements by a co-Acc which
Express assertions in statements
Acc argued implied that the co-Acc was solely
Subramaniam v Public Prosecutor (original use of OOC
responsible for the crime alleged.
statement)
*To avoid the hearsay prohibition, Acc argued that the
*Acc gave evidence of threat-type statements of
court could either (1) confirm a general flexible exception
terrorists, for the purpose of proving that Acc was acting
where the evidence is sufficiently reliable; or (2) confirm
under duress in carrying illegal arms.
a specific exception admitting statements against the
The evidence was not tendered for the purpose of
makers penal interest; or (3) follow Canadian authority
establishing the truth of facts asserted in the statement,
& create an exception based on notions of necessity &
but to prove that threatening statements were made & that
reliability.
they caused the Acc to do as he was told not hearsay
The statements were inadmissible, bc they were
use.
insufficiently reliable & probative of his innocence to
At no stage in the inferential chain is there a need to infer
satisfy an exception to the hearsay rule even if an
that the facts asserted in those statements were true. The
exception were to be recognised.
only relevance of the statements was the circumstances
Brennan CJ & McHugh J were reluctant to give
the statements were made, and how Acc reacted not the
discretions to trial judges & create further common law
truth of facts assertions in the statement.
exceptions in the face of the growing legislative reform to
R v Rice (hearsay use of OOC statement)
the hearsay rule.
*A used plane ticket with Rice for Flight X on it, was
tendered for the purpose of proving that R travelled on
Situations where hearsay rule doesnt apply:
the particular flight named on that ticket.
Out-of-court statements are admissible for non-hearsay
*Assumed that non-hearsay evidence can establish that
purposes (eg. Prior inconsistent statements are tendered to
the ticket was used on the particular flight.
discredit a witness doesnt matter whether what was
Ct said it wasnt hearsay evidence, bc the evidence makes
asserted in prior statement is true/false, what matters is that
it more probable that R travelled on the particular flight.
the statements are inconsistent not relying on the truth of
Myers v DPP and Gardner have disapproved this
the asserted facts not hearsay use).
decision. Correct approach is:
There are many statutory exceptions to the rule (in particular
Cannot infer straight from the ticket that says Rice for
exceptions admitting hearsay in documents).
Flight X that R travelled on Flight X. The asserted fact
S 60 CEA permits statements to be used as firsthand hearsay
that R travelled on Flight X must be inferred to be true,
once they are admitted for other purposes.
since the reliability of the asserted fact is uncertain (eg.
Hearsay rule does not exclude assertions by machines (Rook v
the ticket issuer could have incorrectly issued it in Rs
Maynard).
name). So, have to rely on the truth of the facts asserted
in the ticket statement the ticket is hearsay evidence.

(7) HEARSAY
But s 45 exception to hearsay may apply if the
circumstances in which the ticket was issued are such that
the assertions in the ticket are sufficiently reliable.
R v Sean Lydon (hearsay use of OOC statement)
*Pro tendered a paper with statement Sean rules
dropped in the vicinity of the crime, for the purpose of
linking Acc to the crime.
[The papers only connection with Acc was through the
truth of the assertion hearsay use. But can try to admit
the assertion in exception to the rule.]
[Its irrelevant that it was unlikely the paper was planted

at the scene of the crime.]

Implicit assertions in statements

McGregor v Stokes and R v Kearley (hearsay use of OOC
statement)
*Phone calls from unknown callers were relevant to show
the illegal use of the premises (as a betting shop:
McGregor v Stokes) or (for drug supply: R v Kearley).
The phone calls are relevant via the truth of the OOC
implicit assertion by the callers that the premises were
being used for the illegal purpose.
In McGregor v Stokes, the evidence was admitted
implicit assertions are outside the hearsay rule.
In R v Kearley, the evidence was inadmissible hearsay
implicit assertions are within the hearsay rule.
But if there are enough callers, there should be no doubt
about the reliability of their implicit assertions can
argue that the exception to the hearsay prohibition
applies. But unlikely in light of Myers and Bannon.
Assertions of intention (also knowledge & belief: states
of mind)
Walton v R: An out-of-court statement of intention is
admissible to establish a contemporaneous intention asserted
in the statement, because (1) statements of intent are original
evidence of the intent (Mason CJ), (2) statements of intent can
be regarded as conduct outside the hearsay prohibition, or (3)
an exception to the hearsay rule applies (cf s 72 CEA).
*Acc was charged with murder of V after meeting her at
the ETC. The issue was whether Acc met V at the ETC.
*B testified that:
1) V called out to her child M, daddys on the
phone;
2) M said on the phone Hello daddy;
3) V agreed over the phone to meet the caller at the
ETC.
*The conversation (OOC statements of V) was tendered
to prove:
1) it was Acc on the phone; and
2) V had an agreement to meet Acc at the ETC
Acc met V.
*Accs accomplice (Bragg) testified that Acc told her he
had arranged to meet V at the ETC @ 7pm.
*H, S & N testified to the effect that V told each of them
she was going to meet Acc at the ETC, by bus.
1 & 2) The evidence of the OOC statement asserting that
it was Acc on the phone was hearsay. [But Deane Js
minority view that there is an exception to the hearsay
rule in the case of spontaneous statements asserting
identity over the phone, was accepted in Pollitt v R.]
3) If the OOC statement was tendered to establish the
truth of the asserted arrangement to meet, it would be

hearsay. BUT the statement is admissible to establish Vs

intention to meet Acc:
Mason CJ: The evidence of the OOC statement about
meeting was not tendered to prove the asserted
agreement to meet, but was original evidence of Vs
intention to meet Acc at the ETC no hearsay use
of the evidence.
Majority: Vs statements of intent constituted
conduct from which Vs intention to meet could be
inferred (even though they may contain some
assertion) outside hearsay prohibition.
Is the evidence of intent sufficiently relevant to the fact in
issue?
The evidence of Vs intention to meet was alone
insufficiently relevant to prove that Acc went there &
met V (but was sufficiently relevant to prove that V
went there).
But another witness (Accs accomplice) testified that
Acc had similarly declared his intention to meet with
V at the ETC.
The [combined] evidence of their concurrent
intentions was sufficiently relevant evidence that
they met.
There are good reasons for letting in statements of intention:
Contemporaneous & important to know what ppl intend at the
time.
R v Blastland: The difficulty is establishing the sufficient
relevance of mere evidence of intention to proving the
material facts in issue.

2) IMPLICIT ASSERTIONS IN OUT-OF-COURT

STATEMENTS ARE HEARSAY
Teper v R: Assertions of fact implicit in out-of-court
statements are hearsay.
*Pro sought to call a witness to testify that he heard
someone at the scene shout, Your house is on fire & you
are running away to prove the presence of Acc at a
fire.
The implied assertion that the someone was identifying
Acc at the scene, was inadmissible hearsay.
[Res gestae could have applied to the mere bystander to
the event, but in this case the statement was insufficiently
contemporaneous.]
R v Kearley supports this view that implicit assertions are
within the hearsay rule.
(There, the implied assertion about the use of the
premises was inadmissible).
McGregor v Stokes opposes this view but this is against the
approach taken by judges in Walton & Pollitt.
(There, the implied assertion about the use of the
premises was admissible).
Cth
Implied assertions may be outside the hearsay definition in s
59 CEA, as the maker of the statement did not intend to assert
the implied assertions (in Teper the assertion of identity, in
Kearley and McGregor v Stokes the assertions about the use of
the premises).

(7) HEARSAY

3) IMPLICIT ASSERTIONS IN CONDUCT ARE

NOT HEARSAY

The majority in Walton v R suggested that the hearsay rule

does not apply to assertions implicit in conduct (and in some
circumstances words can be conceptualised as conduct to
avoid hearsay).
Vs words in which she agreed to meet Acc at the ETC
could be conceptualised as conduct from which Vs
relevant assertion of intention could be inferred, so that
the hearsay rule was not infringed.
Statements can be conceptualised as conduct if they were
made at the time of the event/transaction (ie. if they were
made in a non-testimonial way).
Pollitt v R
*Witness testified that a hitman said to someone on the
phone, You get the rest of the money when you do the
job properly, from which it could be implied that Acc
had been employed by the hitman.
Dawson & Gaudron: The implied assertion (of an
arrangement to kill) was conceptualised as part of a
course of conduct at or about the time of the crime the
inference of Accs involvement was outside the hearsay
prohibition.
Benz v R
*Witness testified that he came across 2 ppl (who looked
like the Accs) on a bridge & when he asked them if they
were OK, the daughter replied Its OK. My mother is
just feeling a bit sick.
*The issue being identity, the response at the bridge was
relied on to establish that the 2 women were mother &
daughter, thus adding to the circumstantial evidence
against Accs.
The statement is relevant to identity via an implied
assertion of relationship between the women hearsay.
Dawson J: The making of the statement constituted
conduct from which it might be inferred that the 2 women
on the bridge were the Accs not caught by the hearsay
prohibition.
Cth
In most cases of conduct there is no intention to assert the fact
implicit in the conduct, and so s 59 CEA will not apply to
exclude the evidence.

4) NON-NARRATIVE STATEMENTS ARE NOT

HEARSAY
Non-testimonial statements generally ( outside
hearsay rule)
Where out-of-court statements are made non-testimonially (ie.
are not a narrative report of past events), the reason for the
hearsay prohibition does not exist they are outside the
hearsay prohibition (bc their relevance cannot be reproduced
as testimony in court at a later date).
Assertions implicit in conduct are never in the nature of
testimony they do not fall within the hearsay
prohibition.
Statements of assertions made as part of events are
seldom made testimonially, as no repetition of the
assertion at trial will reproduce their relevance they do
not fall within the hearsay prohibition. (see res gestae
below)

Statements asserting intention made before the intention

is acted upon, are not sufficiently relevant in the form of
narrative (bc the most reliable evidence of an intention is
not the actors narration about his past intention, but
rather evidence of the actors statement made at the time
when that intention was held immediately before the
event) such contemporaneous statements of intention
do not fall within the hearsay prohibition (Walton v R).
Non-testimonial statements are not admissible merely by
reason of their spontaneity (Brennan J in Pollitt); existing
authority only admits:
1) Contemporaneous assertions of intention;
2) Contemporaneous assertions of physical health &
feelings; and
3) Statements that are contemporaneous with the events
in issue.
Res gestae
Non-narrative statements made during the events ( outside
hearsay rule)
Assertions in [non-narrative] statements made during the
events in issue, are [not hearsay & are] admitted as part of the
res gestae.
Rationale: The relevance of such statements is not just the
assertions contained in them, but their timing with the
events no repeating of the assertion in testimony can
convey the relevance of this timing such assertions
have a non-testimonial dimension that takes them outside
the hearsay rule.
Strict contemporaneity is needed for the statement to be
admitted as res gestae: [but wrong in light of Ratten &
Andrews]
Bedingfield (Vs statement on emerging from a room with
her throat cut, was excluded as made after the event in
issue and testimonial in form)
Vocisano v Vocisano (a statement made immediately after
a road accident whilst those involved were lying injured
next to the road, was excluded as testimonial hearsay)
[Its better not to use res gestae in this sense. Talk in terms of
conduct/non-conduct, non-narrative/narrative.]