Chapter 8 Hearsay — The Rule .. that most characteristic rule of the Anglo-American law of evidence, ~ a rule which may be esteemed, next to jury-trial, the greatest contribution of that eminently practical legal system to the world’s jurisprudence of procedure.’ Introduction Whatever one’s view of the hearsay rule’s contribution to the jurisprudence of procedure, it is undoubtedly one of the most challenging and contentious of the exclusionary rules of evidence. Its challenge lies partly in the fact that it is difficult to convey all essential elements of the rule with simplicity and clarity, so that its true meaning, effect and scope can be understood. In essence, at common law, the rule precludes the admission of assertions made outside the proceed- ings on foot where they are adduced to prove the existence of any fact asserted. Distilled slightly, it can be understood in basic terms as a prohibition on the use of a person’s out-of-court assertions as equivalent to or in place of their in-court testimony.” So defined the rule has a very broad scope, catching the total spectrum of assertion typologies — intentional, unintentional, implied, express, oral, documen- tary and those made by conduct. Herein lies the contentious nature of the rule. Its breadth inevitably creates uncertainty and inconsistency in its operation.’ When coupled with an inflexible approach to its application the result may be exclusion of cogent evidence in contradiction of the rule’s rationales' — evidence, moreover, that might lie at the very outer edge of the rule’s reach.’ In Australia, judicial approaches potentially unlocking the rigidity of the rule® have failed to win 1 JH Wigmore, ‘The History of the Hearsay Rule’ (1904) 17 Harvard Law Review 437 at 458 2 For this definitional approach, see ibid 437. 3 See detailed discussion and examples in ALRC, Evidence (Interim) (Report No 26, 1985) Vol 1, [130]-[131} 4 See, eg, Myers v DPP [1965] AC 1001; Re Van Beelen (1974) 9 SASR 163; Jones v Metcalf (1961) 3 All ER 205; Re Gardner (1967) 13 FLR 345; O’Meally [1952] VLR 499; Szach (1980) 23 SAS 504; Baker [2012] HCA 27; 245 CLR 632; Bannon [1995] HCA 27; 185 CLR 1; Errigo [2005 SASC 62; 91 SASR 80. 5 See, eg, Walton [1989] HCA 9; 166 CLR 283 (unintended implied statement identifying telepbone caller) (Wilson, Deane, Dawson and Toohey JJ). 6 — See, eg, Walton [1989] HCA 9; 166 CLR 283 at 306 (Mason CJ); Benz [1989] HCA 64; 168 CL 110 at 117-18, 121, 143-4; and Pollitt [1992] HCA 35; 174 CLR 558 at 565-6, 610.HEARSAY ~ THE RULE 307 universal judicial support.” In the end, the task of hearsay reform has fallen to the legislature. In the mid-1980s and 2000s the Australian Law Reform Commission (ALRC) undertook comprehensive evaluations of the hearsay rule, which resulted in the implementation of an entirely new hearsay regime in those jurisdictions that have enacted the uniform evidence legislation. Section 59 of the UEA seeks to narrow and clarify the reach of the hearsay rule.* The critical feature that narrows the definition of hearsay in s 59 and distinguishes it from the common law is that it captures only intentional assertions of fact. A more minor, though nevertheless still significant, distinguishing feature of s 59 is that it catches only assertions made by people, whereas at common law assertions from other sources, most notably machines, may also constitute hearsay. Section 59 provides: 59, Hearsay rule — exclusion of hearsay evidence (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. (2) Such a fact is in this Part referred to as an asserted fact. Each of the components of this definition is elaborated individually below. Before embarking on that task, however, this chapter briefly considers the history of the rule in order to locate its rationales and purpose, and to open the door on discussion about its future. The exceptions to the rule are examined in Chapter 9. History and Rationales of Hearsay Rule There is some dispute about the origins of the hearsay rule. However, the general view is that its genesis was institutional, that its existence can be ascribed to the development of the modern jury trial. It is thought that the transformation of the jury, at the end of the Middle Ages, from a self-informing, investigative body to a passive panel instructed in the facts by witnesses, was accompanied by a growing sense of disquiet about hearsay evidence. Nevertheless, what lay at the heart of this disquiet and supplied the engendering cause for its solidification into a generally accepted exclusionary rule is a matter of disagreement. Wigmore attributes its acceptance as settled doctrine’ to juries’ need for reliable evidence, but more specifically to the view that a desirable level of reliability could not be achieved for hearsay evidence because its trustworthiness could not be probed by cross-examination.!° The crux of the problem with hearsay for Wigmore then was the deficiency of cross-examination, cross-examination being, in his view, the greatest engine for exposing the fallibility of evidence. Like Wigmore, Langbein argues for an institutional explanation of the hear- say rule. However, he pinpoints it more specifically in the rise of the adversarial criminal trial and the affiliated emergence of counsels’ dominant role in that process in assisting the truth-determining role of the jury. These inter-dependent developments, Langbein suggests, were in turn the product of the view that cross- examination constituted the best vehicle for ensuring and exposing veracity. This view, of course, told against the reception of hearsay evidence. 7 See Bannon [1995] HCA 27; 185 CLR 1 at 94 (Brennan CJ); Pollitt (1992] HCA 36; 174 CLR 558 at 571-83 (Brennan CJ); Baker [2012] HCA 27; 245 CLR 632 at [83]-[87] (Heydon J), The central components of s 59 are extracted below. 9 Wigmore, above n 1, 458, 10 Ibid 458,308 THE TRIAL: PRINCIPLES, PROCESS AND EVIDENCE Wigmore traced the hearsay rule to the beginning of the 17th century on the basis that it was a creature of the emergent modern jury trial. Because Langbein attributed the hearsay rule to the adversarial process rather than the jury trial per se, he dated its acceptance from, at the earliest, the late 18th century and possibly as late as the 19th century. Nevertheless, for both Wigmore and Langbein, the deficit of cross-examination was the central component in the development of the hearsay rule, though each ascribed the influence of that factor to a slightly different source and time. Early jurists justified the hearsay rule on other grounds of its institutional logic. For example, Lord Mansfield CJ’s explanation of the necessity for the rule was based on distrust of juries’ capacity to evaluate hearsay evidence anda fear that they would accord it undue weight: [Where the jury are the sole judges of the fact, hearsay evidence is properly excluded, because no man can tell what effect it might have upon their minds." Other early commentators relied on the fact that hearsay statements are not made on oath. For example, Gilbert stated that, because they are not subject to the admonitory effect or solemnisation of the oath, they could be ‘of no value’. Wigmore, however, suggests that, because from an early stage the hearsay rule applied to both sworn and unsworn extra-judicial statements, the absence of the oath was never as strong an influence on the development of the rule as the absence of cross-examination.'* More generally, the shift in the role of the jury from an investigative body to a passive receiver of evidence precipitated a preference at trials for oral testi- mony of witnesses’ own observations rather than for their accounts of others’ observations.'! Here we see a concern for the reception of what might be judged as the best evidence, direct evidence that the jury could assess by observing the manner and behaviour of the witness whose observations they were being asked to credit. Again the impetus was the desire for the best possible evidence judged by the yardstick of reliability. The following passage from the judgment of Heydon J in Baker'® provides a full explanation of the principal deficiencies of hearsay evidence. His Honour begins by referring to points made by Brennan CJ in Bannon:'* 83. ... One of his Honour’s points concerned the parties’ inability to cross-examine the makers of out-of-court statements who do not give evidence. Another concerned the fact that neither the judge nor the jury would have seen the out-of-court statement being made or seen the declarant giving evidence. To these points may be added the following considerations. 84. Suppose a witness, Mr W, testifies to a relevant event which he has himself observed. In those circumstances, the jury is invited to accept that Mr W did perceive the event, that he has remembered correctly what he perceived, that there is no ambiguity in his narration of the event to the court, and that he is sincere in his testimony. Sincerity 11 Berkeley Peerage Case (1811) 4 Camp 401 at 415; 171 Eng Rep 128 at 135 (HL, Mansfield, Chief Justice of Common Pleas) (advisory opinion). 12 G Gilbert, The Law of Evidence (Dublin, 1754) 107, 108. 13 Wigmore, above n 1, 448-8. 14 Asin Colledge’ Trial (1681) 8 How St Tr 549 at 662 and Gascoigne’s Trial (1680) 7 How St Tr 959 at 1019. 15 [2012] HCA 27; 245 CLR 632 (references omitted). For a shorter summation of these points, se Teper |1952] AC 480 at 486 (PC) Lord Norman. 16 [1995] HCA 27; 185 CLR 1 at 7-8.HEARSAY — THE RULE 309 may be promoted by the making of an oath or affirmation. Mr W’s fear of criticism for false evidence, inside the court or outside it, and the prospect of prosecution for perjury may also promote truthfulness. But the principal guarantee and test of the witness’s honesty and the accuracy of his perception, memory and narration lie in his capacity to be cross-examined. At the end of the day, the jury must be satisfied both that the witness believes that the event took place, and that his belief is justified. 85. It is obvious that any danger that the jury wrongly reaches, or fails to reach, that state of satisfaction is accentuated when what is offered to the court is not Mr W’s account of what he saw, but his account of what another person, who does not testify - Mr Jones ~ saw. In that instance, the jury must be satisfied that Mr W believed he heard Mr Jones say that the event happened. It must be satisfied that Mr W’s belief is justified. It must be satisfied that Mr Jones believed that the event happened. And it must be satisfied that Mr Jones's belief was justified. The jury must decide whether it is so satisfied without the safeguards which the ordinary conditions of testimony would have provided in relation to Mr Jones had he been called as a witness. It must decide without testing of Mr Jones’s account in cross-examination. And it must decide despite the diminished value of these safeguards so far as Mr W is concerned. There is no direct link between Mr W’s testimony and the conclusion that the jury is invited to reach as a result of it. The direct witness, who asserts that the event occurred, can be cross-examined much more fruitfully about his perception and memory of that event than the hearsay witness can be cross-examined. The direct witness claims personal experience of the event and can be cross-examined on that experience. The hearsay witness, who merely testifies that he heard the direct witness say “the event took place”, can only be cross-examined about what he claims he heard the direct witness say. The direct witness is giving the “best” evidence. The hearsay witness is not. While the desire for reliable evidence lies at the foundation of the hearsay rule, it is reliability as tested by cross-examination that came to occupy and that contin- ues to occupy its epistemological, instrumental and institutional heartland. As Langbein says of the historical prominence accorded to cross-examination: [T]here was both a naive faith in the truth-serving efficacy of cross-examination and a growing deference to that lawyer’s dominance of trial that the system of partisan examina- tion and cross-examination of witnesses would require."” Asimilar faith in cross-examination is evident in the passage quoted above from Heydon J’s judgment in Baker.'* But disquiet about the deficit of cross-examination where hearsay evidence is concerned does not tell us the whole story about the historical development of, and modern adherence to, the hearsay rule. So, in some early writings and statutory provisions about ex parte testimony we see trace elements of concern for procedural propriety similar to modern confrontation precepts. In 1730 Sollom Emlyn wrote: The excellency therefore of our Laws above others | take to consist chiefly in that part of them which regards Criminal Prosecutions ... In other Countries ...Witnesses are examined in private and in the Prisoner’s absence; with us they are produced face to face and deliver their Evidence in open court, the Prisoner himself being present and at liberty to cross-examine them ...!° A 16th century statute relating to treason is in a similar vein: 17 JH Langbein, ‘Historical Foundations of the Law of Evidence: A View from the Ryder Sources’ (1996) 96 Columbia Law Review 1168 at 1199. 18 [2012] HCA 27; 245 CLR 632 at [84]-[85]. 19 Sollom Emlyn’s Preface to State Trials (2d ed, 1730) xxv.3410 THE TRIAL: PRINCIPLES, PROCESS AND EVIDENCE [S]uch persons .., who shall write, declare, confess or depose any thing or things against the person to be arraigned ... shall be brought forth in person before the party arraigned if he require the same, and object and say openly in his hearing what they or any of them can against him.” In recent years, curial justifications for hearsay exclusion, particularly in overseas jurisdictions, have given prominence and flesh to the right to confrontation. This approach appears to have resulted from recognition that reliability rationales for hearsay exclusion do not withstand rigorous theoretical scrutiny or hold up in practice (see further below pp 311-13). The right to confrontation exists independently of the right to cross-exami- nation. While it too has the object of achieving reliable evidence and serves an instrumental function in this regard, it has a more profound emotional basis in notions of human integrity and decency. United States cases provide some of the most elucidatory formulations of the right in this way. The ‘Confrontation Clause’ in the US Sixth Amendment has had a marked impact on a number of areas of criminal procedure, including the admission of hearsay evidence. The judgment of Scalia J in Coy v Jowa,”' though not a case concerning hearsay evidence, gives us a full explanation of the nature of the right to confrontation: The Sixth Amendment’s guarantee of face-to-face encounter between witness and accused serves ends related both to appearances and to reality. This opinion is embellished with references to and quotations from antiquity in part to convey that there is something deep in human nature that regards face-to-face confrontation between accused and accuser as “essential to a fair trial in a criminal prosecution.” Pointer v Texas, 380 US 400, 404 (1965). What was true of old is no less true in modern times, President Eisenhower once described face-to-face confrontation as part of the code of his hometown of Abilene, Kansas, In Abilene, he said, it was necessary to “[m]eet anyone face to face with whom you disagree. You could not sneak up on him from behind, or do any damage to him, without suffering the penalty of an outraged citizenry. ... In this country, if someone dislikes you, or accuses you, he must come up in front. He cannot hide behind the shadow.” (Press release of remarks given to the B’nai B’rith Anti-Defamation League, November 23, 1953, quoted in Pollitt, supra, at 381). The phrase still persists, “Look me in the eye and say that.” Given these human feelings of what is necessary for fairness, the right of confrontation “contributes to the establishment of a system of criminal justice in which the perception as well as the reality of fairness prevails.” Lee v Illinois, 476 US 530, 540 (1986). The perception that confrontation is essential to fairness has persisted over the centuries because there is much truth to it. A witness “may feel quite differently when he has to repeat his story looking at the man whom he will harm greatly by distorting or mistaking the facts. He can now understand what sort of human being that man is.” (Z Chafee, The Blessings of Liberty 35 (1956), quoted in Jay v Boyd, 351 US 345, 375-376 (1956), (Douglas, J, dissenting)). It is always more difficult to tell a lie about a person “to his face” than “behind his back.” In the former context, even if the lie is told, it will often be told less convincingly. The Confrontation Clause does not, of course, compel the witness to fix his eyes upon the defendant; he may studiously look elsewhere, but the trier of fact will draw its own conclusions. Thus the right to face-to-face confrontation serves much the same purpose as a less explicit component of the Confrontation Clause that we have had more frequent occasion to discuss — the right to cross-examine the accuser; both “ensur[e] the integrity of the factfinding process.” Kentucky v Stincer, 482 20 St1&2P&Me 10, § 11. This provision was read as having repealed the provision in Act 5 of Edward VI and then ¢ 10 § 11 in P & M was read down by reason of § 7 in the same Act, so that the production of witnesses was not usually required. 21 487 US 1012 at 1018-20 (1988).HEARSAY — THE RULE 311 US, at 736. The State can hardly gainsay the profound effect upon a witness of standing in the presence of the person the witness accuses, since that is the very phenomenon it relies upon to establish the potential “trauma” that allegedly justified the extraordinary procedure in the present case. That face-to-face presence may, unfortunately, upset the truthful rape victim or abused child; but by the same token it may confound and undo the false accuser, or reveal the child coached by a malevolent adult. It is a truism that constitutional protections have costs. In the hearsay context, the right to confrontation is more usually linked to the benefits of cross-examination. However, this link may then be couched principally in terms of achieving procedural fairness rather than being directed exclusively to ensuring the reliability of evidence and hence accurate fact-finding. For example, in Crawford v Washington,” the US Supreme Court held that the Sixth Amendment Confrontation Clause confers a right on criminal defendants to cross-examine State witnesses that applies notwithstanding common law or State legislated hearsay rules. This aspect of the right, the court held, derives from principles of natural justice” and is directed principally at eliminating aspects of the civil law mode of criminal procedure, specifically its use of extra curial statements as evidence against an accused.”' Accordingly, the court further held that, while the ultimate aim of the right to confrontation is to secure reliable evidence, it is a ‘procedural rather than a substantive guarantee” and that ‘[i]t commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination’.”* Similarly, European Court of Human Rights jurisprudence on the implica- tions for hearsay of the right to confrontation, guaranteed by Article 6 § 3(d) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, tells us that the opportunity to confront witnesses is an aspect of the right to a fair hearing. It constitutes an independent principle against which the legitimacy of exceptions to hearsay exclusion must be judged. In Al Khawaja and Tahery v United Kingdom” the Grand Chamber held: Article 6 § 3(d) enshrines the principle that, before an accused can be convicted, all evidence against him must normally be produced in his presence at a public hearing with a view to adversarial argument. Exceptions to this principle are possible but must not infringe the rights of the defence, which, as a rule, require that the accused should be given an adequate and proper opportunity to challenge and question a witness against him, either when that witness makes his statement or at a later stage of proceedings ... The transfer of the bond between hearsay exclusion and cross-examination from conventional reliability ensuring rationales to human rights concerns about proce- dural fairness appears to have resulted from recognition that cross-examination is not necessarily the greatest engine for ensuring the reliability of evidence. Indeed, very often it has proved to be a vehicle for undoing its reliability.* Accordingly, other grounds have been sought to justify the exclusionary rule, which nevertheless maintain its nexus to cross-examination. Yet, as the quotes from Crawford v Washington and Al-Khawaja and Tahery quite clearly reveal, 22 541 US 36 (2004). 23 Ibid 49. 24 Ibid 50. 25 Ibid 61. 26 Ibid 61, 27 (2011) ECHR 2127 (GC) at [118] 28 See Chapters 6 and 7 on the er s-examination of vulnerable witnesses.312 THE TRIAL: PRINCIPLES, PROCESS AND EVIDENCE the procedural fairness rationale for the hearsay-cross-examination nexus is ultimately grounded in the aim to secure accurate fact-finding by enabling the exposure of unreliable evidence. In the recent High Court decision in Baker, we see a union of fairness and reliability considerations in the majority judges assessment of the desirability of admitting, in exculpation of the appellant, evidence of a third party confession.*® Their Honours’ reasoning is not without complexity. Nevertheless, their refusal to admit the evidence is plainly based on a coalition of procedural fairness and reliability concerns. Their Honours noted at the outset that one very important reason for the hearsay rule is the unfairness of depriving the party against whom the hearsay is tendered of the opportunity of cross-examining the maker. They conceptualised fairness as the accused's right to a fair trial and acknowledged that a fair trial might be compromised were reliable exculpatory, even though untested, evidence to be excluded. Nevertheless, their Honours concluded that, because the exculpatory implications of the third party confession in question could not be guaranteed and because it did not unambigu- ously support the appellant’s case, there had been no unfairness in excluding it in the appellant’s trial. The inherent weaknesses of hearsay evidence were summarised by the ALRC* when it recommended reform rather than abandonment of the rule: + Hearsay statements are usually made out of court in circumstances where the maker is free from the pressures that the court environment may exert in favour of truth telling, including the making of an oath or affirmation and the prospect of prosecution for perjury. + The makers of hearsay statements may not be available for cross-exami- nation. This means that the accuracy of their perceptions and memory will not be tested, and their motivations or other influences on them when they made the statements may not be revealed and may remain unexplored. + Hearsay statements are usually not made in circumstances when triers of fact have the benefit of observing the declarants’ demeanour while making the statements. + Reporters of hearsay statements may have no first hand knowledge of the events in question, which means that their evidence may not be the best evidence about the facts in issue. + Reporters of hearsay evidence may have misunderstood what they were told. They may misremember or even misrepresent it. Repetition of another’s statements can inflate inaccuracies, delete important details and materially alter what was said. + Hearsay evidence may be fabricated. + The admission of hearsay evidence may add to the time and cost of litigation. None of these justifications is unassailable. The primary problem with hear- say evidence identified in both historical and modern sources — the absence of cross-examination — cannot justify hearsay exclusion where the maker of the state- ment testifies. Yet the hearsay rule extends to out-of-court statements made by witnesses called to testify.*! Moreover, as already noted and detailed in Chapter 7, cross-examination is not necessarily the truth revealing ‘engine’ that it is claimed 29 [2012] HCA 27; 245 CLR 632 at [51]-[52] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). 30 ALRC, Evidence (Interim), above n 3, (661]-675]. 31 Ibid [663}.HEARSAY — THE RULE 313 to be. Very often it distorts testimony and makes reliable evidence unreliable. This is particularly the case where vulnerable witnesses, children and those with cognitive impairments, are concerned (see Chapters 6 and 7). It can produce this effect even for robust witnesses. The same is true of the pressures of the court process itself. It can render witnesses mute, erase or alter their memories, confuse them and play merry hell with their ability to testify accurately or with even a modicum of reliability. Further, as the ALRC notes, some hearsay evidence would not be affected by cross-examination.” For example, documents prepared for the purpose of, and in the course of, business operations are unlikely to suffer from the inadequacies conventionally associated with hearsay evidence that might be revealed by cross-examination. A classic example is provided by the business records excluded in Myers v DPP.** The reliability and accuracy of the records were not disputed. Nevertheless, they were excluded on a formal and rigid application of the common law hearsay rule. As for the accuracy generating impact of the oath or affirmation, modern western secular societies probably have only modest faith in their abilities in this regard. The argument that, because hearsay evidence may not be based on personal knowledge, it may not be the best evidence does not hold up where it clearly is the best evidence. Records of events made close in time to events in question, in circumstances where there is little danger of fabrication, will often supply vastly superior evidence to that provided at trial by someone with first hand knowledge, but called to testify perhaps years after the events occurred. The justification that hearsay evidence deprives triers of fact of the ability to assess the credibility of the evidence by viewing the demeanour of declarants, places too much faith in people’s ability to judge creditworthiness on this basis.** With regard to a witness misreporting, misremembering or fabricating hear- say evidence, these are matters that might, in fact, be tested by cross-examination and, in any event, speak to the weight of the evidence rather than the desir- ability of excluding it altogether. They are not of real concern with some forms of hearsay evidence, such as business“ or official records or electronically recorded representations. The rationale that juries may misuse or assign too much weight to hearsay evidence can be countered by the expedient mechanism of judicial warnings in relation to its frailties.°” Finally, the argument that the admission of hearsay evidence might add to the length or cost of litigation, while attractive to those ruled by fiscal concerns, weighs negligibly in the balance against the need to place as much relevant information before the court as possible, particularly where the fairness of the proceedings or, indeed, their efficiency would be compromised by the exclusion of cogent evidence. In relation to efficiency concerns consider, for example, the absurdity of requiring strict proof of a person’s date of birth or age. 32 Thid [663]. 33 [1965] AC 1001 (HL). Statutory reforms in all Australian jurisdictions now provide for the admission of business records, see UEA, s 69. 34 See Chapter 6 for discussion of oaths. 35 — See, in particular, State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in lig) [1999] HCA 3; 160 ALR 588 (Kirby J); Whisprun v Dixon [2003] HCA 48; 200 ALR 447. 36 For discussion of s 69, see Chapter 9. 37 See Chapter 17, Judicial Warnings.314 THE TRIAL: PRINCIPLES, PROCESS AND EVIDENCE What is Hearsay? Not all representations made out of court are caught by the hearsay rule. Deter. mining when they will be can be one of the most difficult tasks facing counsel and courts. Under the Australian uniform evidence regimes, the exclusionary rule and the definition of hearsay are set down together in s 59(1) of the UEA.** Each element of the definition must be satisfied before the exclusion will apply. In summary there must be: * a previous representation; * made by a person; * containing what can reasonably be supposed to be an intended assertion of fact; * the representation must be adduced to prove the actual existence of that fact. The critical aspect of the definition resides in dot point four — the purpose for which the evidence is tendered. Non-hearsay previous representations may satisfy dot points one, two and three. Nevertheless, those three elements will be considered briefly before we embark on an analysis of dot point four. The four components of s 59 can be articulated as two different sets of limiting characteristics, The ‘previous representation’ and ‘made by a person’ components define the form of evidence caught by the hearsay rule. They constitute essentially mechanical elements of the definition though, on occasion, they may throw up knotty issues. The ‘intended assertion of fact’ and ‘evidentiary function’ compo- nents of s 59 define hearsay according to characteristics relating to purpose. The former relates to the declarant’s purpose, the latter to the forensic purpose for adducing the representation. Together they constitute the most intellectually demanding components of the hearsay rule. Any inquiry into whether evidence is hearsay is likely to focus primarily on: + whether the declarant intended to assert a fact and what precisely the intended assertion of fact is; and + whether the forensic purpose in adducing the previous representation is to prove the actual existence of that intentionally asserted fact. Representation The definition of ‘representation’ in the Dictionary of the uniform legislation (s 3(1) of the Tasmanian Evidence Act 2001) is all encompassing: representation includes — (a) an express or implied representation (whether oral or in writing), or (b) a representation to be inferred from conduct, or (c) a representation not intended by its maker to be communicated to or seen by another person, or (d) a representation that for any reason is not communicated. In the High Court decision in Lee,** Gleeson CJ, Gummow, Kirby, Hayne and Callinan JJ explained the use of the term ‘representation’ rather than statemen! in the definition of hearsay: 38 — Reproduced above, p 307. 39 [1998] HCA 60; 195 CLR 594.HEARSAY — THE RULE 315 21. “Representation” is often used in the law to refer to words that are intended to induce action or inaction by the person who hears or reads them. It may, therefore, seem to be an unusual word to use in this context. But it is clear from the Interim Report of the Law Reform Commission on evidence that, in the proposals that were later formulated in the Act, the term “representation” was used to apply to statements and to conduct and was used to encompass all that those statements or that conduct would convey to the observer. The breadth of the term was revealed in Rose‘ where the NSW Court of Criminal Appeal held that the failure of 300 students to respond to a police officer’s request for information about the deceased in a murder case was an implied representa- tion that the students had no information of the kind requested. The court held: 261. There is no reason why the word “representation” as used in the Evidence Act should not encompass a communication made by silence or a failure to respond. As the judgment in Lee points out, ..., the [Australian Law Reform] Commission intended that the word be given a wide application ... 262. Whether a representation does arise from the silence or non-action of a person on any particular occasion will depend upon the circumstances and, in particular, whether an inference can be drawn that the person by silence or non-action made a representation of fact, regardless of whether or not the person intended to convey the representation. Nevertheless, the court held that the evidence was irrelevant because its signifi- cance was a matter of speculation and should have been excluded or not admitted."' The potential scope of the hearsay rule that the breadth of the definition of ‘representation’ might produce is confined by the requirements that the assertions in the representation be intended and that the representation be adduced to prove the actual existence of the asserted facts. Previous representation The Dictionary to the UEA (s 3(1) of the Tasmanian Act) defines ‘previous repre- sentations’ as representations that are made other than in the proceedings in which the evidence is sought to be adduced. This term has been given a broad construction to cover all representations made on other occasions except the proceedings before the judge in which the evidence is sought to be adduced. This means that representations made in related proceedings such as interlocutory hearings may fall within the definition of ‘previous representation’ should a party seek to adduce them at the later trial. Made by a person The hearsay rule does not apply to representations produced by machines with- out human in-put. Nor does it apply to communications made by other animals. Accordingly, it would not apply to evidence in an abduction case of the distressed barking of a dog where that evidence is adduced to prove the time of the crime, its location or that something untoward was happening. The question of whether a representation was made by a person is most likely to arise in relation to information whose production has involved the use of a machine. In such cases the question whether it will be caught by the hearsay rule will be answered by 40 (2002) 55 NSWLR 701 (Wood CJ and Howie J, with Smart Ad agreeing). 41 Ibid (267] 42 Moy Mobile Pty Ltd v Allphones Retail Pty Ltd [2008] FCA 369; 167 FCR 314 at [27]. 43 ‘This was part of the circumstantial evidence adduced in Pfennig [1995] HCA 7; 182 CLR 461.316 THE TRIAL: PRINCIPLES, PROCESS AND EVIDENCE reference to whether its creation required human contribution and exactly what the nature of that contribution was. Middleton J explained this aspect of the hearsay definition in Hansen Beverage Co v Bickfords (Australia) Pty Ltd.“‘ Hansen argued that television ratings data (OzTAM data), collected by a system that operated as an automatic recording of the information displayed on a television and available to a user who ‘logged on’ to the system by pressing an assigned button to register their presence in a room, was not hearsay. Middleton J rejected this argument: 44 121. Hansen relied on Rook v Maynard (1993) 126 ALR 150, a case dealing with the com- mon law rules of evidence, where Wright J considered the admissibility of data obtained from a computer program which traced the user’s identification number, stating at 157 that: “once the trace was applied to the respondent’s log-on identification, the process then undertaken by the trace was entirely mechanical in that the peregrinations through the data base by that computer user were automatically traced throughout the system and were recorded and stored for retrieval in report form as soon as the trace print-out was called for.” 122. His Honour found that the computer output from this process was not hearsay as it did not contain a human element. 123. In R v Wood (1982) 76 Cr App Rep 23, the Lord Chief Justice rejected an argument that where a computer is used in the course of the production of final figures, those figures were hearsay, finding at 27 that: “This computer was rightly described as a tool. It did not contribute its own knowl- edge. It merely did a sophisticated calculation which could have been done manually by the chemist and was in fact done by the chemists using the computer programmed by Mr Kellie whom the Crown called as a witness.” 124. The evidence which was being considered in these cases was data which had meaning only by virtue of its analysis or recording by a computer; that is, the computer was performing a function which produced data helpful to the court. Although, in Rook, the user had to log on before the computer would begin its tracing function, it was not this logging on which was the fact sought to be proved in that case. Rather, it was that the computer had undertaken certain functions, which were able to be proved by data resulting from the computer program itself. 125. In the present case what Hansen is ultimately seeking to prove by the tender is the audience reach, but derived from some data that a certain number of people in the sample homes pressed the button when near the television, thereby representing that they were “in the room where the television was on”. I do not accept that Hansen can avoid this conclusion by asserting that it does not rely on the OzZTAM data for the purpose of showing certain people were in the room at the relevant time. Undoubtedly, Hansen seeks to prove the estimated audience sizes for a particular program derived by statistical methods from the data, but such data is not automatically recorded by the meters without the human inter- vention of deliberately pressing the button to show a person or persons are in the room where the television is on. When the people are in the room they intend to, and do, make the repre- sentation to assert the existence of this fact, the existence of which needs to be proved to form the basis of the statistical analysis. It seems to me that the necessary reliance by Han- sen on the data derived from the sample homes must involve the representation (as defined broadly in s 3 and the dictionary in the Schedule to the Evidence Act) by a person that the person was in the room on the relevant occasion, namely when the television is operating. 126. This is the previous representation (as broadly defined) which, under s 59 of the Evidence Act, makes the source data hearsay which is then used to calculate the audience reach. It is not because the OzTAM computer processes the information that the data is [2008] FCA 406; 75 IPR 505.HEARSAY — THE RULE 317 hearsay, it is because the original makers of the representation (the people pressing the buttons) are not giving the evidence themselves. The fact that the source data which is fed into the OzTAM system by the users is then processed using a computer program is not germane to the question of whether the underlying evidence which has been put to the Court in this instance is hearsay or not. Inconcluding that the representation was made by a person, Middleton J focused on the fact of human intervention in the data collection process and the intention to make a particular representation that lay behind that intervention. In O'Meara v Dominican Fathers“ Gyles and Weinberg JJ provided a slightly different take on this issue. Their Honours stressed that for s 59 to apply the source of the asserted fact must be tied back to a person who had or might reason- ably be supposed to have had personal knowledge of it. If the asserted fact was machine-generated it will not be hearsay; if it was recorded or interpreted by a person, then it may be. Intended assertions of fact At common law the definition of hearsay is wide enough to catch previous repre- sentations that make unintended assertions of fact. This creates the possibility for almost all statements and conduct whether intentionally assertive or non- assertive to be constructed as implied assertions of fact and potentially caught by the hearsay rule. Not only does this make the limits of the hearsay rule at common law virtually boundless but it also renders the common law rule very complex. For example, the fact that a motor mechanic examined his car carefully and then drove away in it might be read as an unintended implied assertion by him that the vehicle was roadworthy.** If adduced to prove that fact, his conduct would be caught by the common law hearsay rule. Similarly, the fact that people wrote to an elderly testator addressing him as a rational person may be construed as an unintended implied assertion as to the testator’s soundness of mind, and excluded as infringing the common law hearsay rule if adduced to prove that fact.‘” Clearly, as these examples show, at common law almost anything can be fashioned into hearsay evidence. Accordingly, in accordance with the ALRC’s recommendation,* the exclusionary rule in s 59 is limited to intended assertions of fact. Nevertheless, exactly what is encompassed in an intentional assertion of fact has remained uncertain and was the subject of further review by the ALRC in 2006."° This review was prompted partly by obiter statements of judges in the NSW Court of Criminal Appeal decision in Hannes. For example, Spigelman CJ noted that, if the word ‘intended’ in s 59 was given a narrow reading so as to require ‘some form of specific conscious advertence’ by the maker of the previous representation, many implied assertions considered at common law to fall with- in the hearsay rule would no longer be included.*! Of course, a legislative goal of s 59 was, in fact, to exclude most implied assertions from the purview of the 45 Unreported, FCAFC, BC200307403, at [87]. 46 This example is derived from and to identical effect as the example given by Baron Parke in Wright v Doe d Tatham (1837) 7 Adolph & E 313 at 388; 112 Eng Rep 488 at 516. 47 Ibid. 48 ALRC, Evidence (Interim), above n 3, [684]. 49 ALRC, Uniform Evidence Law (Report No 102, 2006). 50 [2000] NSWCCA 503; 158 FLR 359. 51 Tbid [359].318 THE TRIAL: PRINCIPLES, PROCESS AND EVIDENCE hearsay rule — all implied assertions, in fact, that do not comprise intentional assertions. Nevertheless, Spigelman CJ suggested that s 59 might exclude, not only the specific facts subjectively adverted to by makers of previous representa- tions, but also any facts that are necessary assumptions underlying the facts subjectively adverted to." This approach adds a significant degree of complexity and uncertainty to decisions about the application of s 59. Further, as noted by the ALRC, it potentially opens the way for unintended assertions to be excluded by s 59, despite its wording and legislative intent.’ The Commission argued that because Spigelman CJ ‘appears to have meant that where an implied asser- tion is necessarily assumed within an express assertion, intention to make the implied assertion is “contained” within the intention to make the express asser- tion. Accordingly, s 59 would necessarily apply to express and to intended and unintended implied assertions’."! In response the Commission recommended some minor adjustment of s 59 to apply an objective test to the assessment of whether an assertion is intended. Intended assertions under s 59 are now assertions of fact that the maker of the representation can reasonably be supposed to have intended, having regard to the circumstances in which they were made. While this amendment clearly obviates the need to establish the subjective intentions of the asserter, it is not clear how it displaces the decision in Hannes. Indeed, it has been argued that the revised test will actually result in more evidence being classified as hearsay and that it makes the task for a party arguing for the non-application of the hearsay rule more onerous than the subjective test. For example, Odgers contends that: Under the current formulation, the party arguing for admission of the evidence will have to satisfy the court that it could not reasonably be supposed that the person who made the previous representation intended to assert the particular fact. If a consideration of all the circumstances in which the representation was made could lead a hypothetical reasonable person to infer that the fact was intended to be asserted, then the hearsay rule applies to it. Clearly enough, the amended test imposes a heavier burden on the party contending that the evidence is not caught by the hearsay rule. The current test will result in more evidence being classified as hearsay and subject to this exclusionary rule. Although the hearsay rule established by this provision does not apply to all “implied assertions”, if the person who made the representation “can reasonably be supposed” to have intended to insert a fact implied in the representation, it will be caught by the rule.‘ This is not the outcome that the ALRC intended. Rather the Commission sought to ‘foreclose’ the approach in Hannes and the expansion of the exclusionary rule to unintended assertions. Accordingly, the approach to s 59 that the Commission appears to have envisioned is not the extension of the hearsay exclusion to all and any implied assertions of fact that might reasonably be supposed to have been intended in the circumstances. Rather, it is to shape the question as — having regard to the circumstances in which it was made, what can it reasonably be supposed that the maker of the representation actually intended to assert. This is a subtle but significant difference. It accords with the High Court explanation in Lee” of the approach to be adopted to unintended assertions under s 59: 52 Ibid [359]. 53. ALRC, Uniform Evidence Law, above n 49, [7.45]. 54 Ibid [7.45]. 55S Odgers, Uniform Evidence Law (Thomson Reuters, 10th ed, 2012) [1.3.800]. 56 ALRC, Uniform Evidence Law, above n 49. 57 [1998] HCA 60; 195 CLR 594.HEARSAY ~ THE RULE 319 22. ... The rule’s operation requires consideration first of why it is sought to lead evidence of something said or done out of Court (a previous representation). What is it that that ‘previous representation’ is led to prove? In particular, is it sought to lead it to prove the existence of a fact that the person who made the representation intended to assert by it? The fact that the statement or the conduct concerned might unintendedly convey some assertion is not to the point. The inquiry is about what the person who made the representation intended to assert by it. Section 59 of course applies to intended, implied assertions of fact. These do not make a frequent appearance in the case law, but the NSW case of O’Grady** supplies one instance. The accused was charged with murder by shooting. He claimed that his act was involuntary. In support of his defence he sought to lead evidence of a conversation that he had had with his sister about a month after the event. Over objection from the Crown Hulme J ruled the evidence to be admissible: 5. ... During the examination in chief of the accused’s sister, she gave evidence of a conversation with the accused about a month after the shooting. When Mr Conditsis appearing for the accused asked her “Q. What did he say to you?”, the Crown objected. 6. At page 714 of the transcript I allowed the question, indicating that | would give my reasons later. These are they. The answer given was: “Kate, tell me what happened. You know that I couldn’t do something like that”, an answer which was something to the effect of that Mr Conditsis had anticipated. 7. My reasons for allowing the question and the answer are these. I regard the evidence as admissible as falling within the exception contained in s 66(2) of the Evidence Act and also as falling within s 72.'°*! The answer, in my view, contained implied representations to the effect that the accused’s shooting of the deceased was not the ultimate result of a voluntary act, or was done in the circumstances of some abnormality of mind. The purpose test The purpose for which the previous representation is adduced is the critical component of the hearsay definition. A previous representation will be hearsay only if it is utilised to prove the existence of a fact that it can reasonably be supposed the maker of the representation intended to assert. If a previous repre- sentation is relevant in some other way and relied on according to that relevance, it will not be hearsay. Non-hearsay previous representations are usually called ‘original evidence’. Accordingly, in determining whether evidence of a previous representation is caught by the hearsay rule it is crucial to identify how it is relevant to the facts in issue, what precisely it is being adduced to prove and how it will be used to prove that matter. A simple way of encapsulating the essence of hearsay evidence is to think of the previous representation as being deployed in the same manner as a witness's testimony at trial about the events in question. The case law is replete with explanations of this aspect of the hearsay definition. In Wing Cheong Li®' Howie and Hall JJ (with Macfarlane JA agreeing) summarised some of the primary authorities: 58 [2000] NSWSC 1256 at [7.62]. 59 The then s 72 exception is now contained in s 66A. At the time of judgment in O'Grady, the exception in s 72 encompassed both first hand and more remote hearsay. In contrast, the s 66A exception covers only first hand hearsay. 60 This analogy is implicit in Dawson J’s description of hearsay evidence as ‘testimonial’ in Benz [1989] HCA 64; 168 CLR 110 at 134. 61 2010] NSWCCA 40; 265 ALR 445 at [50}-[52].320 THE TRIAL: PRINCIPLES, PROCESS AND EVIDENCE 50. Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation; s 59(1) of the Evidence Act, However, if evidence of a previous representation made by a person is not adduced to prove the existence of a fact asserted by the representation, it is not classified as hearsay. Evidence of that kind is sometimes referred to as “original evidence” to distinguish it from hearsay evidence: Walton at 289 per Mason CJ; Pollitt v The Queen [1992] HCA 35, 174 CLR 558 at 571 per Brennan J. SI. In R v Lee [1998] HCA 60; 195 CLR 594 at [22], the operation of the hearsay rule in terms of s 59 was explained by the High Court (Gleeson CJ, Gummow, Kirby, Hayne and Callinan JJ) in the following terms: “Section 59 must be understood in this light. The rule’s operation requires consid- eration first of why it is sought to lead evidence of something said or done out of Court (a previous representation). What is it that that ‘previous representation’ is led to prove? In particular, is it sought to lead it to prove the existence of a fact that the person who made the representation intended to assert by it? The fact that the statement or the conduct concerned might unintendedly convey some assertion is not to the point. The inquiry is about what the person who made the representation intended to assert by it.” (per Gleeson CJ, Gummow, Kirby, Hayne and Callinan )) 52. Again in Papakosmas, the High Court held that the operation of the exclusion to s 59 depends upon the use that is sought to be made of the evidence in question (at [24] per Gleeson CJ and Hayne J). Often the greatest difficulty with this aspect of the hearsay definition lies in understanding the non-hearsay relevance of previous representations rather than the use of previous representations for a hearsay purpose. We will look more closely at non-hearsay uses of previous representations below. At this point we put some flesh on the bones of the purpose test by providing some relatively straightforward explanatory examples: + Inacriminal case, evidence of a third party confession is hearsay if adduced to prove that the person who made the confession committed the crime rather than the accused: Baker;®* Blastland;“ Re Van Beelen; Bannon.* + Ina murder case evidence of statements made by the deceased about who had injured her, and how, is hearsay if adduced to prove the source of the deceased’s injuries and how they came to be inflicted: Abel; Harris;°' Conway.* + Evidence of previous representations made by the complainant in a sexual offences case to her friends about what had happened to her, and who had done it, is hearsay if adduced to prove the details of the offence and the identity of the perpetrator: Papakosmas."® In a criminal case where the accused is charged with aggravated assault, evidence that he told an acquaintance shortly after the offence was commit: ted that he ‘had just done a job and fired two shots’, is hearsay if tendered by the prosecution to prove the identity of the person who committed the offence: Lee.” 5: [2012] HCA 27; 245 CLR 632. [1986] AC 41. (1974) 9 SASR 163. (1995] HCA 27; 185 CLR 1. 2011 NLTD 173 (Supreme Court of Newfoundland and Labrador, Trial Division (General). [2005] NSWCCA 432; 158 A Crim R 454. [2000] FCA 461; 172 ALR 185 (FCA). {1999] HCA 37; 196 CLR 297 (HCA). [1998] HCA 60; 195 CLR 594.