Music Let's then turn to one of the exceptions and One of the exceptions, of course, that I've touched upon is ESA. And you'll note that that's probably the most common exception or exclusion. Perhaps why it's the first exclusion rule set out in the Act.
It's a difficult area of the wall, I must say. Have you covered this yet? Not yet. Not yet?
Well, a lot of this won't then make sense to you, perhaps. I think what's going to be the easiest way is on the second last... page and start the wheels that halfway or third of the way down he said everything's is John's do so I'll take that back so see on the third last page you've got this example You've got the section set out, section 59 of the hearsay rule. Then you've got a heading, examples, and then the paragraph under that is really the background to the hearsay rule.
So the common law is... or since its inception, sought to uphold the general principle that only the very best form of evidence be admitted. Consequently, the laws relating to the prohibition of hearsay have evolved.
So that's what I was talking about earlier, particularly in criminal trials. You only want the best form of evidence before the court because there can be so much at stake, obviously. So, in our everyday lives, we operate on a, basically, a world of hearsay. And so, most of the facts that we accept to be true are...
received in a hearsay fashion. So, for example, everything that we learn from history, per se, is hearsay. We're relying upon what someone else's perception or understanding of a set of circumstances or facts will. And we accept that as being what actually occurred.
But that is hearsay. And so that prima facie is... One of the exclusionary rules which makes evidence inadmissible. So, here's a representation about facts which are an integral way of gaining knowledge. And of course some representations are more reliable than others.
So, generally speaking, if you want to prove a fact in court, then the law would require that you call as a witness a person who perceives that fact. and they can give original evidence of it. So it's like Chinese whispers, you see, like, as the information is relayed, it is changed in just a slightly different manner, such that when you get from this point to even two or three people down the chain, it can be... it might only be... I knew the difference, but there is a difference.
And so you can see there that that's not the best evidence. It evolves over the person that it's no longer accurate. So the hearsay rule would require, subject to the exceptions to the hearsay rule, that the person who perceives the fact gives evidence of that fact.
Not someone who is told by the person who perceived the fact, what they were told about what that person perceived. Does that make sense? Feel free to say no, because as I say, there are many, many lawyers who struggle with this concept.
It is very difficult to try and get your head around. Generally speaking, you do not perceive it and you give evidence of it as hearsay. If you do not perceive it with one of your senses, then it's hearsay.
Now hearsay is evidence that's generally excluded because the person cannot be cross-examined. It is difficult to assess the weight that can be attached to that evidence. it is difficult to assess the credibility of it.
And the declaration was not made on that. So what we're talking about there is an out-of-court representation. I don't know if you've read that. So he says something about the said outside of court, and you're now in court giving evidence of it. Does that make sense?
But I think the best way would be to go to the examples. So back under that, I think it's the third last page here, under the heading EASA. So, first example there, and these are the examples that the Evidence Act sets out. So D is the defendant in a sexual assault trial. W has made a statement to the police that X told W that X had seen D leave a nightclub with the victim shortly after the sexual assault was alleged to have occurred.
So unless an exception to the hearsay rule applies, evidence of what X told W cannot be given at the trial. So, W made a statement to the police that he or she was told by X that X had seen D leave the club. Now, if it was X giving the statement, that's not hearsay because X saw D leave the nightclub with the victim.
W didn't see X leave the nightclub with D. W was told that by X. So do you see there? X, I'm sorry, W did not perceive X leaving the nightclub with D.
W was only told that by X. Let's try the next one. So P had told W that the handbrake on W's car did not work. So unless there's an exception to the hearsay rule, evidence of that statement can not be given by P, W or anyone else to prove the handbrake was defective. Because no one...
...perceive that. So can you see where it becomes difficult? You will struggle with, OK, to prove that the handbrake was defective, he had to actually know that the handbrake was defective. So in that example was P told by somebody else?
Well, they don't give that example, but it infers it from that. Or to actually assert that the handbrake was defective would be a hearsay because there's no factual basis for that. So perhaps the example with the greatest of respect to the drafters of the act... That's probably not entirely clear. So let's take a moment to read through.
Sorry? Can I just go back to that one? Yeah.
So there's just no... He hasn't tested the handbrake or he's just coming up with that? Well, I think that's how that reads, isn't it? Because there is no factual basis for that.
He had told W that the handbrake on W's car did not work. So he's telling... I perceive there to be the owner of the car that the handbrake did not work. Now... Who's the mechanic then?
Well if he is, and if there's evidence that he actually tested it, then that's not his fault because he's making that assertion based on the fact. But that example probably isn't very helpful. As I say, it's in the act, in terms of trying to get an understanding of it. I think what they're trying to say, again, there's not enough information, or maybe just on that information, and that's maybe what they're getting at, is that there could be more information in a brief of evidence, for example, that might make...
Evidence that on its face is hearsay and inadmissible, actually not hearsay. And so what it's more about is trying to elicit more information. So if you then try to elicit more information on that, well, P, how did you know that?
And so that's only one more question to try and ascertain more, how is it that P knew that? But when you are called upon to assess evidence, and particularly in a brief of evidence, you might find that. Seriously. In a police statement, you might say, X told Y this.
And what you're reading is Y's statement, with a statement by what X said someone else did. So... we'll come to shortly questions you can ask to ascertain whether it's his or not so it might be a bit early perhaps to go through this stuff if you haven't covered his say yet because it can be quite but this I only touch on this simply as as a follow-on if you like from admissibility so this is the first exception to relevant evidence. It might be relevant, it might be highly relevant, because it might be that X told me that they saw Y committing a crime.
Now, that's relevant, isn't it? It's highly, highly relevant. But there's an element of hearsay about that, because if you want to rely upon that statement... to establish the truth of that statement, then that's hearsay.
Does that make sense? Now... Because there's no evidence there to actually tell you what he's saying, if he knows the fact that that's the case.
That's right. And so if you're relying upon that stated fact... as proof of that fact actually occurred, then that's hearsay.
I mean that way. One other factor that it could go in would be on the basis that it's relevant for a non-hearsay purpose. So it might be relevant, for example, for credit of another witness. So you're not relying upon it.
To say whatever the statement is, is true, you're relying upon it as establishing or re-establishing the credit of a witness. So we're not saying that what that statement says is actually true, but the fact that that was said makes that witness's evidence more credible. So that's a non-hearsay purpose. The hearsay purpose is relying upon the statement or the assertion or the fact as truth of that fact.
So the questions might be best to just go... So it's in the final part of... It's the final paragraph of the paper. So, to assist in determining whether representation offends the world against hearsay, the following five questions can be applied.
Firstly, that's the threshold issue that we've been talking about. Is the representation relevant to the case? And if it's not, then no need to go any further. Secondly, who is the person that is making the representation?
Is it the person that actually perceives the representation? ...the factual circumstances that give rise to that representation. Thirdly, what is the fact intended to be asserted by the maker of the representation?
So what is it that they're intending by making that representation? Fourthly, is the party calling the evidence, that is the party seeking to adduce the evidence, trying to prove the existence of a fact intended to be inserted by the maker of the representation? So that's what we're talking about. Is the purpose of calling that evidence to prove the existence of a fact ...in issue. So let's say an element of the defence.
If that's what they're seeking to do, that's strictly speaking hearsay. Okay, that there is a... That would then be exclusion, but as we talked about when we went back, there is then an exception to that. So you could get that in nonetheless, particularly if it's first-hand.
So that is, if that person saw... will perceive what it is that they're representing. That's a first-hand ISA, it's a first-hand of the Chinese whispers.
So that is an exception to the exclusionary rule of ISA. So it can go in under that. And then, fifthly, as I said a minute ago, if it's not being called to prove the existence of the fact, Then what is the purpose for which the evidence has been called? And is it a non-hinset purpose? That is, is it for some other reason other than to prove a fact initially?
So I suspect I've probably lost you there. That's perfectly fine because there are many, as I say, repeat practitioners that get stuck on hearsay. So probably it might have been, perhaps we should have this discussion after you've done your hearsay topic. It will be helpful though because we're doing hearsay next week.
Okay. So I think it will be helpful. For us to have an insight and then once it looks at it can then go back to come back and look and go oh yeah I understood what Shane was saying there.
So it's all about out of previous representations, out of previous representations, that sort of thing. I don't want to muddy what you're going to learn next week. Maybe if you come back and just review this after you've been through the hearsay.
But the reason I touched on that today is being but one example of an exclusionary rule. I pathed down that roadmap, if you like, to look at the evidence as a piece of water. So don't try and focus too much on the hearsay rule itself, but perhaps for today's purposes, as a broad brush approach, that the evidence could be relevant, but excluded on the basis it's hearsay, and there is no exception to that hearsay rule. So another exception might be an opinion, for example. I mean business records, those sorts of things.
Shane, could you tell us, you're in court, so you're running a local court hearing, and the witness is asked a question, and the evidence that they're going to give is going to be hearsay. So, as a prosecution witness, can you tell us what the process is? What would you do, what would the court do in that situation if you're wanting that evidence to be excluded?
How would you go about that? It's difficult because, well it's not difficult, it depends on, you need to know what's coming. Because if you jump to your feet and automatically say, I object, the cord's going to say, well... I haven't heard the answer.
What is there to object to? So you would normally object to a question before it's answered on the basis it's not relevant. Because it's clear from the question that it's not relevant. I guess from... The question is, well, it could also, you could also foreshadow that it's going to be hearsay, particularly if the question is formed on the basis of what did you hear X say, for example.
The first thing you would do is you would object. You don't have to say any more. You just simply say, I object, and you sit down. A lot of people get this urge or have this practice that they say I object and then go on to say why they object. The proper practice in my view is simply to say object and sit down because it's the prosecution seeking to reduce that evidence or get that evidence into court or before the court.
and then see what the prosecution did. So then if they say, oh, it's not pressed, then you don't have to have the argument. OK, and it moves on. And you don't have to say, yep.
That the prosecution can do that. What do you mean? Yeah, certainly.
Yeah. And so you would just simply say, so you would object, sit down, prosecution, you go, it's pressed. If it's pressed, you stand up and say, well...
object on the basis that it's hearsay, or object on the basis that it's not relevant, or object on the basis that that's not the evidence. Because they might ask a witness a question about... What they purport was the evidence given by another witness or even that witness earlier on.
So you just simply object and say that's not the evidence. So it sort of misconstrues the evidence a bit. So yeah, you would... But the other thing is that there is no harm in objecting after the evidence is given.
Some magistrates will say the evidence is given. And your response to that would be, well, certainly it has been given, but it's a question of weight, and the court should give it no weight in course of this. So you've got a couple of, preferably beforehand, if you know, but the court might come back in and say, well, I've got to hear the evidence before I know whether it's not impossible.
But the preferable approach would be beforehand because of course the evidence doesn't get before the court. But don't feel as though you can't do it afterwards. I guess in civil matters, I don't think any law, really the gatekeeper should be the solicitor I guess.
coming to affidavits, but most affidavits in family law are to score a piece, basically. So I really, I guess it's at that first point that actually, when you actually get the same interim hearing or something like that, or even the final hearing, actually having a solicitor. and then it basically struck out and kind of kept the actual matter straight or just... Well I think it depends upon what sort of family law matter it is.
So by way of example, I ran a two day hearing Thursday and Friday of last week before a judge of the Federal Circuit Court and I stood up at the start of the case for the applicant mother. He said, Your Honour, I object to certain parts of the witness's affidavit. And the judge promptly responded, there are no objections in power in any matter that's to come.
I said, Really, Your Honour? None whatsoever? He said, No, you can sit down. So, to me, that was... I think an example of in parenting matters basically anything can get before the court.
But I think particularly if the party is legally represented, I think it still looks bad if the practitioner that's drafting the affidavit for the party doesn't at least... In some small way try and adhere to those words. For example, putting speech, indirect speech, not just and then X said this, this, this, this. Yeah, instead of...
of saying X said words to the effect of, quote, blah, blah, blah, end quote, rather than just slabs of typing out what that person understood to be said. So I think there's a lot to be said as a profession of trying to, even though the rules of evidence are a bit... perhaps not as stringent. They apply, don't get me wrong. I guess I get confused because the evidence doesn't actually apply to families.
It's pretty crazy. It depends upon, they say that, but it depends upon, I don't know whether you would cover what Brigham Shaw, so in the family court for example, if it's a, let's say a contravention order where There can be, it's a criminal, and the only reason it gets a criminal tag is that the court could impose a fine or imprisonment or for repeated contraventions. Then it makes sense that the standard applied to the evidence must be more rigid or strict. So there is this sliding. sort of scale, but I think still there needs to be some adherence to the exactism.
Would you then say in your example last week, when he did, I was assuming it was that he was a judge? Yes. Would he accept submissions at the end of the case about what weight he should be able to... Yes. ...to the evidence?
Yeah. So it wasn't completely... So there's evidence that probably shouldn't have been in but then, because of its format...
Correct. ...and less weight. Yeah, that's right.
So that's what I was saying earlier, if the evidence gets in, don't be too concerned about it. Obviously the preferable approach that it doesn't, but you could make submissions to the effect that its reliability is hindered to a point where the weight that you would give it would be the best. That's probably how I would deal with an objection type question. I think the other thing is, I guess in practice, sometimes you'll just get focused on your case.
Don't always be conscious and listen to the questions that the other party are putting from an evidential point of view. Because that can assist you in trying to ascertain what their case is. And so you will then tailor. You might be heading off on one particular course and you think, OK, they're running a case that's totally different to where I think they're going to run, so you might need to shift your focus in terms of where you will run.
So there's another example of what you might have thought on the face of it is not relevant material which might become relevant because the case has taken a totally different turn. So always try and be conscious of that. I think in terms of today's purposes and really what you need to get through the course, if you can get a sound understanding of those.
stages of how it works. If you're answering an exam question or an assignment question, the first thing you do is say, okay, is this evidence relevant? No, it's out.
And in your working out, if you show that, I don't know, I can send it to the work centre for a review, so stop me if I'm, I would have thought, if you can show your methodology and get into an outcome, even if it's not the right outcome. Then you've applied the right methodology. Because there are plenty of cases that apply the right methodology, but there's two different results as well. So, through that process.
Not only in exams, but in assessing evidence in practice. You're one way in front of a lot of others. And if you use it regularly, you'll get to a point where it is intuitive and you don't have to go through this, what some might say, artificial process of asking ancient-day questions.
You can just do it because you've done it so frequently. Questions? Feel free to ask any question on any area of the world.
It doesn't have to be the music to my disability. You don't mind that? No, go for it. Yep.
That's on his phone? Yes. He's got a traffic light.
Is it on? Yeah. Okay. Is the representation relevant to the case?
Let's think of an example there. Sexual assault case. And...
I comment about the clothing that the victim is wearing. Not only is it improper, but is it really relevant? Does the clothing that the victim is wearing assist you in assessing the enormous of the offence or whether the offence itself is normal? That sort of thing.
Or, do you think that's relevant? Or... I think if you're looking at, say, an incident and the question or the representation is about something that happened the day before, is that relevant? It could be, particularly if it's a dangerous driving case where someone falls asleep at the wheel. What did they do the day before?
They worked night shift, they didn't sleep, they hadn't got in the car. Of course they were going to go away to Queensland for a long weekend. So in some cases what someone did the day before isn't relevant. But in that sort of case it could be.
So you've got to look at the representation that is sought to be relied upon. Is that representation relevant to what it is that the court is being asked to consider? Secondly, who is the person making the representation?
Well, if you're sitting down and you're... So in those examples... Was W making the representation? So you look at the person making the representation and that is... What is W's position or ability to make that representation?
Did W... So firstly, who is making the representation? So there's the identity of the person. And then... Thirdly, what is the fact intended to be asserted by the maker of the representation? So it might be W is intending to assert that W was told something by someone else.
Or is it W is asserting that W saw someone else? Or is W saying that W heard something, for example a gunshot, rather than W being asserting that X told him that X heard a gunshot? Fourthly, is the party calling the evidence trying to prove the existence of a fact intended to be inserted by the maker of the representation?
So, W was told by X that X punched someone in the face. Are you relying upon what W says, that is, X told me that he punched someone in the face, to prove that X actually punched someone in the face? Or are you relying upon that to say that X told me that?
I'm not relying upon it to say that that's what actually happened. Do you see that distinction there? It could be relied upon in two ways. It could be relied upon to say that X actually punched someone in the face and that would be hearsay.
Or, you could be relying upon it to say that X said. that he punched someone in the face. And that could be relevant for non-he psychosis. For example, if X-Ling gives evidence that he's hearing, He wasn't, he didn't do it, there's no way he did it because he wasn't there. You might then want that evidence to go in that X said he did it.
Not to say that X did it, but to say that... X said something different to what he's saying now that goes to his credit. It could also be used as if there was someone punching a person in the face.
No, because what you'd be relying upon there is the fact that, well one, you'd have to be relying on you because you'd be relying upon the fact that it was exited. No, not necessarily. Just that the victim did have injuries. But that's evidence in itself, isn't it? We're talking about the representation here.
So the representation that X said to W that he punched someone in the face. So the representation is, I punched someone in the face by X. Now, do you rely upon that to prove that x actually did that? Now, to do that would be, on w, would be here, say.
OK. But... To say that there's evidence that X told W that, not to say that that's what actually happened, but just that there was that conversation, might be relevant for anonymity, so it could be. So that is not to prove the fact that X punched someone in the face. What's that?
Yeah. Makes sense? Yeah. Yeah. That's it.
Good job. And so that answers then, I think, part five. That's the non-hearsay purpose for which that evidence can be used.
If you need me to expand upon any of it, or if it doesn't make sense, please feel free to say so, and I'll try and explain it. understandable way. Because sometimes, I mean, if you know what you're talking about, to explain it... And it only comes from the ear, but in turn, of doing it, and stumbling through and trying to work it out for yourself as well. It's a very difficult concept, this hearsay aspect, because it can be...
...used for so many other purposes, evidence that is strictly speaking his fate, but might be other people. So another example might be business records, okay. So bank accounts, broadcase.
The document itself can assert... certain things. Now do you rely upon what the document itself asserts as being evidence that that's what actually happened or is it relevant for some other purpose?
But you'll see there that business records for example, so bank statements, are an exclusion to the hearsay rule. So they can get in under section 169. Can you explain that further? Yeah. To me, bankrollings are a factual... Are a factual rule.
Yeah. That's right. And so that's why that's an exception to the exclusionary rule. I was actually wondering why it even didn't come up that it would sort of show transactions that are actually... So the bank record itself, for example, in a fraud case, could show all of these transactions.
And if you're relying upon that to assert a fact, then that is hearsay and it's out. So there's a perfect good case that if you could say, well, that money was spent on X or something or Y. That's right.
But on its face, that would be excluded as evidence, as hearsay evidence. But there is an exception to that exclusionary rule for business records, which says, OK, yes, sure, it's hearsay, but it's an exception to the hearsay rule, so it can come in. But I've heard of things like pre-cash and things like that.
Well, there's a formal process that needs to be gone through to... I can't think of the case. I think it's NAB and Russo Business Records. Do you cover that?
There needs to be evidence called that it's a document that's kept in the day-to-day operation of the business. So you need to have someone from the organisation say, yes this is a document that we keep during the course of business, it's generated in this way. ...shown the documents, I think, and this is a business document of our business. So there's a formal process of proving that it's actually a business document. So there are steps, but that's probably getting a bit...
But by way of example, that's... I've got a question, as I say, of any kind. It's these other areas that you've dealt with that...
You've got any questions about? What's the last side? So Arjun yesterday, he would have been good on exclusions and stuff like that.
He's pretty good. Who saw Arjun yesterday? He's pretty good. I did a bit of work together some years ago. He was out here in the Aboriginal Legal Service.
Alright, well hopefully I haven't confused you more with my presentation today than what you were before. I think if there's one thing that you should take and one thing alone out of today is work through that. Logical order or road map of whether the evidence is invisible. Just ask each question.
Is it relevant? Yes. Okay, what's the next stage?
If the answer's no, don't need to go any further. That's it. End.
That's out. And then just go through those rules. As I say, use the table of contents. It assists you in terms of working out, okay, what's the next step?
What's the next step? What's the next step? Good for you. get a sound knowledge of that then you can apply it to any factual circumstance thanks very much that was a pleasure excellent presentation