hearsay exceptions—res gestae threshold test of...

Hearsay Exceptions—Res Gestae

Threshold test of relevance Whether it rationally affects the assessment of the probability of the existence of the main facts in

issue: Wakely and Bartley (possession of heroin—evidence that police officer present at raid died of overdose of heroin relevant to whether accused in possession)

Hearsay—Exclusionary Rule Out of court statements used to prove the truth of their contents are inadmissible hearsay (Walton

per Mason CJ; Subramaniuam per Wilberforce LJ) because it is not the best evidence given on oath, and the opportunity to cross-examine is lost: Teper v R

Exception to Hearsay

Res Gestae (plural) means transaction= inclusionary rule for evidence due to its overwhelming relevance and reliability

• Effect—Admissible as an exception as evidence to the truth of contents

Incidents to the transaction (broader than exception to hearsay) • Allows bad character evidence to be admitted• Crown generally not allowed to lead evidence of bad character—highly prejudicial and

inadmissible • BUT if one of a connected series of events which should be considered as one transaction →

admissible due to overwhelming reliability & relevance: O’Leary (murder—lumberjacks in forest—evidence that O had been heavily drinking & unprovoked attacks against other workers in 24hrs before death drinking & violence part of the res gestae—murder in isolation is unintelligible → part of transaction → admissible)

Spontaneous & Contemporaneous statementsReactive statements made without apparent thought or reflection are admissible

• an exception as evidence of the truth of contents• Rationale —reliable, less likelihood of concoction or distortion: Mason CJ in Walton (similar

rationale to inherent reliability argument)

Other testsNarrow View (Old UK): Bedingfield

• Strict contemporaneity—only admissible if made whilst event is still occurring: Bedingfield (murder—victim came out of room and said “look what B did to me”—claimed suicide event = slashing of throat | statement came afterwards → not res gestae → inadmissible)

Broad View (Current UK): Ratten• Admissible if—

o Proximate (but not exact) contemporaneityo Spontaneity —made without apparent thought or reflection such that the possibility

of concoction can be disregardedRatten (murder—husband shot wife, claimed accident—just previously wife on phone to operator “get the police”—implied: ‘because my husband is trying to kill me’ admissible as res gestae ← spontaneous even if not perfectly contemporaneous → admissible)Andrews (1987) (robbery & murder—attacked with knife—died 2 months later but told police who attacker was admissible)

Andrew Trotter LWB432 Evidence

Australian Position: Vocisano v Vocisano• Admissible as res gestae if— (Vocisano per Barwick CJ; adopted in Qld by Eaton (QCA);

Walton per Wilson, Dawson & Toohey JJ)o Spontaneous

BUT not enough that unlikely to be concocted and thus might be reliableo Contemporaneous

• Cannot be a mere narration of past events (1-2 minutes after event): Adelaide Chemical Co v Carlyle (acid burns due to negligent employer—containers with sulphuric acid—rushed to nearby toilet—1-2min later—“I took hold of the handle of the jar, tilted it slightly towards me to get my other hand underneath it and the top of the jar seemed to come away with my hand. It must have been faulty or cracked” excluded (only 2 judgements—no ratio) Starke J=admissible | Dixon J=inadmissible)

• Liberal view —Sufficient if there is substantial contemporaneity: Adelaide Chemical Co v Carlyle per Starke J (“must have been defective and came apart in my hands” substantial contemporaneity—not a mere narration of past events → admissible); Mason J in Walton (“Hello daddy”—Mason J also in minority in advocating inherent reliability exception)

• Stricter view —No contemporaneity if—o appreciable break of time (1-2min) and place: Adelaide Chemical Co v Carlyle per

Dixon J (“… must have been defective and came apart in my hands” no contemporaneity—appreciable break in time and place 1-2min | mere narration of a concluded event | not spontaneous or contemporaneous → not admissible)

o made as historical account, not part & parcel of occurrence: Vocisano v Vocisa no (HCA) (MVA—suing brother through nominal defendant— motorist pulled over just after accident: A said could not remember who was driving | B said A was driving spontaneous but not sufficiently contemporaneous (distinguishing from Ratten) ← made as historical account, not part & parcel of occurrence)

• Contemporaneity satisfied—o Contemporaneous & relevant: Warren v Coombes [1976] (heard screech of brakes &

crash—said to daughter ‘car was going too fast’—could not see accident—looked up in tree & saw bike admissible ← contemporaneous & relevant)

• May extend to statements made where person fleeing to seek help: Canadian position; cf. Brown (Police officer shot—stumbled up to someone’s house—said who shot him & then died not being chased → not res gestae → inadmissible)

Analogy with Statute [→also s93B (below)] • Must be reliable—not applicable if could be a fabrication (eg must actually see injuries): R v

Crump (2004) (murder—complaint of bruising by wife to 3P—did not actually observe bruises conversation could have been a fabrication → inadmissible under s93B(2)(a)&(b))

• Representation can be by person themselves or authorised agent: R v McGrane (2002) (murder by doctor—someone called from her house | made statements to 3P—concluded that either victim or authorised agent admissible || if it had been a 3P without her authorisation then not made out—but evidence was she was security conscious so unlikely to be eg murderer breaking in)


Statute: s93B(2)(a)Representation admissible if—

1. representation is— (s93B(2))o Made when or shortly after the fact happened and unlikely to be fabricated :

s93B(2)(a)o Highly probable to be reliable: s93B(2)(b) [→Inherently Reliable Exception]o Against interests of the person at the time: s93B(2)(c) [→Admissions &

Confessions]2. Person who made the representation—

o had personal knowledge: s93B(1); ando is unavailable to give evidence: s93B(1)(b)

3. Prescribed criminal proceeding: s93B(1) means— (s93B(5))o Ch 28 (Homicide—Suicide—Concealment of Birth), o Ch 29 (Offences endangering life or health), o Ch 30 (Assaults) o Ch 32 (Rape and sexual assaults)

• Cannot be substantially after the fact: R v Crump (2004) (murder—complaint of bruising by wife to 3P—did not actually observe bruises conversation could have been a fabrication → inadmissible under s93B(2)(a)&(b))

• Must be reliable—not applicable if could be a fabrication (eg must actually see injuries): R v Crump (2004) (murder—complaint of bruising by wife to 3P—did not actually observe bruises conversation could have been a fabrication → inadmissible under s93B(2)(a)&(b))

• Representation includes express or implied | oral, written or conduct o Even if not actually communicated: s93B(5)

• Representation can be by person themselves or authorised agent: R v McGrane (2002) (murder by doctor—someone called from her house | made statements to 3P—concluded that either victim or authorised agent admissible || if it had been a 3P without her authorisation then not made out—but evidence was she was security conscious so unlikely to be eg murderer breaking in)

Contemporaneous Statements as to Health, State of MindStatements of health at the relevant time or soon after about bodily feelings and symptoms are admissible

• Contemporaneous (or substantially contemporaneous) relating to the physical or mental state: Ramsay v Watson (1961) (unsafe system of work causing lead poisoning—medical officer giving evidence that none of 21 others were experiencing symptoms of lead poisoning statements of health admissible through doctor → no need to call all 21 witnesses)

o ← Spontaneous natural expressions of suffering• BUT must be contemporaneous—not statements by people about their past physical state :

Ramsay v Watson (unsafe system of work causing lead poisoning—doctor reporting that 21 men had never experienced any symptoms in the past not admissible ← not statements about men’s contemporaneous state of health—statements about their past)

Statements about state of emotion or belief: No caselaw or statute, just take Kelley’s word for it


Cases

O’Leary• O was charged with murder in 1946 and the outcome was that he would be hung if found guilty• The death occurred at a camp in a remote forest area – the accused and the deceased were

employed as lumberjacks to fell trees. • The deceased was found dead outside his cabin. He shared the cabin with the accused at the

time. • What was at stake here to identify O as the person who had unlawfully killed with intent was

evidence about what had occurred in the previous 24 hours. • That evidence came from various witnesses and it was to the effect that in the preceding 24

hours the accused had been drinking heavily and had committed a number of unprovoked attacks against his fellow workers – showed bad character independently to what would identify him as the person who killed the deceased.

• It was admitted over objection and O was convicted.HELD:

• In the course of the judgement Dixon J (High Court) in relation to this evidence concluded that it was admissible.

• “From the time when the prisoner came under the influence of drink right up to the conclusion of the scene in the early hours of Sunday morning in the presence of the deceased’s body lying in front of the huts ‘a connected series of events occurred which should be considered as one transaction’.

• The evidence disclosed that under the influence of beer and wine he had drunk and continued to drink the accused engaged in acts of violence which might be regarded as amounting to a connected course of conduct.

• Without evidence of what during that time was done the transaction of which the alleged murder formed an integral part could not be truly understood and, isolated from it, could only be presented as an unreal and not very intelligible event.’

• The evidence had overwhelming relevance to make the whole transaction intelligible• Therefore the res gestae was not just the killing but the series of related events, etc that went on

for the previous 24 hours.

Bedingfield (UK)• Murder case – woman was one room and aunt in other room – woman’s throat was slashed by B• Victim came out of room as said “look what Bedingfield did to me” to her aunt in the other

room and then dropped dead• HELD: event was slashing of throat and statement came later (not contemporaneous)• not admissible as Res Gestae• held to be simply a narrative of the concluded event

Adelaide Chemical Co v Carlyle (No Ratio)• This was a civil action – there was an employee who had sustained an injury in circumstances

that he said the employer had breached his duty of care to him. • He was carrying earthenware or glass containers which contained sulfuric acid – wife was with

him when he was delivering the containers. • Took one off the vehicle he was using to deliver them and then rushed into the nearby toilet. • His wife went in and he said words to the effect that the thing must have been defective and it

came apart in his hands. • He had sustained severe burns from the sulphuric acid in the container and he ultimately died. • It was sought to bring into evidence the statements he had made in the toilets to his wife

HELD:• There are only two HC judgments that discuss this and no ratio from the case


• In Dixon J’s judgement at p532-533 he concluded that there was no sufficient contemporaneity between the incident (breaking of the jar) and the statements to the wife that were made shortly afterward

• “Where there is no natural connection by continuance which may have a liberal connotation and there is an appreciable break of time and place it would in our opinion be going beyond the limit of authority to admit evidence that in substance is a mere narration respecting a concluded event – a narration not naturally or spontaneously emanating from or growing out of the main transaction but arising as an independent or additional transaction.” Quoting from Brown

• Concluded that those observations applied equally to this situation – similar to approach in Bedingfields case

• Starke J whilst he was prepared to accept that a mere narration of past events was not admissible under the res gestae he discussed the rule at p524-527 and concluded that there was sufficient substantial contemporaneity here to allow the admissibility of the statements

Vocisano v Vocisano (Main Australian Case)• Relevant discussion p159• Circumstance here was that there was an action against the nominal defendant alleging the

liability to pay damages arising out of a road accident. • The two people in the car were brothers (A and B). • A sued B through the nominal defendant for damages, alleging that B was driving the car and

breached his duty of care to A in that the car was involved in a single vehicle accident and he was injured.

• As part of his case A called B to give evidence and B said that he was driving the car and he negligently breached his duty of care to his brother A and the car rolled over and he was injured.

• It was sought to lead evidence that just after the accident occurred a motorist pulled up and B was staggering down the street shocked saying we just had an accident, my brother A was driving and he has been injured. It was argued that it was admissible as part of the res gestae – i.e. the accident.

• What more inherently reliable statement than in the pressure of the circumstances a brother approaching the nearest motorist and saying that his brother was driving the car?

• Therefore it was unlikely that this would have been concoctedHELD:

• HC members agreed with Barwick J who said:o “A reason for the doctrine that statements as part of the res are admissible as

evidence is that because of their contemporaneity and because of the circumstances of their making they were unlikely to be concocted and therefore might well be reliable but that does not mean that statements made on an occasion when they are unlikely to be concocted are for that reason admissible.

o It is the contemporaneous involvement of the speaker at the time the statement is made with the occurrence which is identified as the res which founds admissibility…(talks about Ratten)…

o but in the present case there was in my opinion no sufficient contemporaneity of the statement made to either of the witnesses Smith to warrant the conclusion the statements were as part of the res.

• The occurrence was the accident and although the statements by the respondents were made proximate to the occurrence of the accident they were in the nature of a historical account rather than in the nature of a statement made as part and parcel of the occurrence and thus they weren’t admissible as part of the res

• Met the spontaneous requirement but not the contemporaneous requirement


Ramsay v Watson• Action by the pl against the former employer – argued that after 35 years of working in the

printing office he had contracted lead poisoning that was from an unsafe system of work – was seeking damages

• To meet the allegation of a breach of duty of care the printing office of NSW called a govt medical officer that gave evidence that he had examined 21 other people who had worked in the same office as the former employee and that none of them showed signs of lead poisoning – giving observations about other people’s contemporaneous physical health – under the res gestae these are admissible through the doctor.

• There is a slight enlargement of the res because under this exception the described physical or mental conditions are at either the time of the examination or shortly before hand – slightly broader contemporaneity for this category – AND admissible as to the truth of those statements

• The doctor also wanted to give evidence that the 21 people had never in the past experienced any symptoms of lead poisoning – technically those statements can be brought into the opinion of the doctor but because they relate to past events they are not therefore statements about the contemporaneous statements of health and the doctor was prevented from giving evidence of what the persons said about their past physical sensations


Hearsay Exceptions—Statutory Exceptions for Documentary Hearsay

Threshold test of relevance Whether it rationally affects the assessment of the probability of the existence of the main facts in

issue: Wakely and Bartley (possession of heroin—evidence that police officer present at raid died of overdose of heroin relevant to whether accused in possession)

Hearsay—Exclusionary Rule Out of court statements used to prove the truth of their contents are inadmissible hearsay (Walton

per Mason CJ; Subramaniuam per Wilberforce LJ) because it is not the best evidence given on oath, and the opportunity to cross-examine is lost: Teper v R

Exception to Hearsay

Applicable to all Sections(1) In any proceeding where direct oral evidence of a fact would be admissible, any statement tending to establish that fact, contained in a document, shall, subject to this part, be admissible as evidence of that fact if—

1. ‘Statement’: Definitions Sch3• “statement” includes any representation of fact, whether made in words or otherwise and

whether made by a person, computer or otherwise.• “fact” includes admissible opinion (e.g. expert opinion): Thiess Bros v Ipswich Hospital

2. contained in a ‘document’: Definitions Sch3“document” includes, in addition to a document in writing— Schedule 3 QEA

(a) any part of a document in writing or of any other document as defined herein; and(b) any book, map, plan, graph or drawing; and(c) any photograph; and(d) any label, marking or other writing which identifies or describes anything of which it forms

part, or to which it is attached by any means whatever; and(e) any disc, tape, sound track or other device in which sounds or other data (not being visual

images) are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom; and

(f) any film, negative, tape or other device in which 1 or more visual images are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom; and

(g) any other record of information whatever.

3. ‘tending to establish’ a fact = circumstantial and direct evidence4. of which direct oral evidence would be admissible ← only an exception to hearsay

Discretion• Has discretion to reject if expedient in the interests of justice, despite exception: s98• Document can be withheld from the jury room if the judge thinks the jury might place undue

weight on it if it is to be allowed into the jury room: s99• The court may draw reasonable inferences from the form or contents of the document in

determining whether admissible: s96(1)• Statement made by the same person giving oral evidence is not corroboration: s100

Weight• Considerations— (s102)

o Whether statement contemporaneous with factso Whether maker of statement had any incentive to misrepresent or conceal the facts

• If a copy → take into account have lost the opportunity for XE on— (s125)o Why a copy needed to be made (or original destroyed, parted with)o Accuracy of reproduction


o Incentive to tamper or misrepresent


Civil Proceedings: s92 QEA• Statement in a document is admissible if—

o Made by someone with personal knowledge & called as witness; oro Made by someone in the course of an undertaking & source has personal knowledge

and is called as a witness

First Limb: Maker with Personal Knowledge: s92(1)(a) QEA(a) the maker of the statement had personal knowledge of the matters dealt with by the statement, and

is called as a witness in the proceeding; or …• Statement must be made by someone with personal knowledge of the matters

1. Maker of the Statement: s92(4)Person makes a statement if—

• They themselves—o write, make, dictate or otherwise produce: s92(4)(a) (it was written, made, dictated or

otherwise produced by the person)o recognise it by signing or initialling it or otherwise in writing: s92(4)(d) (it was

recognised by the person as the person’s statement by signing, initialling or otherwise in writing)

• Statement is recorded—o with their knowledge: s92(4)(b) (it was recorded with the person’s knowledge)o in the course of and ancillary to a proceeding: s92(4)(c) (it was recorded in the course

of and ancillary to a proceeding)

2. Personal KnowledgeMust personally know the contents of the statement are true

3. Called as a WitnessMust be called as a witness, unless— (s92(2))

o Dead or unfit (physically or mentally): s92(2)(a)

Can accept medical certificate: s96(2) o Out of the state & not reasonably practicable: s92(2)(b)o Cannot be found or identified with reasonable diligence: s92(2)(c) o Would not remember (due to time or otherwise): s92(2)(d) (cannot reasonably be

supposed (having regard to the time which has elapsed … that the maker or supplier would have any recollection)

o Cross-examining party doesn’t mind not calling them: s92(2)(e) (no party to the proceeding who would have the right to cross-examine the maker or supplier requires the maker or supplier being called as a witness)

o Would cause undue delay or expense: s92(2)(f) • To determine these matters, court can act on hearsay evidence: s92(3) (obviously not for

whether cross-examining party consents—Court can act on hearsay to decide on (2)(a), (b), (c), (d) or (f))

• If not called as a witness → can attack credibility to same extent as if calledo Can attack credibility as if they were called: s94(1)(a)o Can bring evidence of PIS in writing or orally of the person: s94(1)(b)← subject to same limitations as in XE: s94(1)o Evidence of criminal history of the person—as if they denied it on the stand: s94(2)

(persons other than the accused—if deny or refuse to answer question re criminal record, can proceed to prove: s16)

Discretion & Weight: ss96-102 [→above]• Statements made by computer: s95


Second Limb: Supplier with Personal Knowledge: s92(1)(b) QEA(b) the document is or forms part of a record relating to any undertaking and made in the course of

that undertaking from information supplied (whether directly or indirectly) by persons who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with in the information they supplied, and the person who supplied the information recorded in the statement in question is called as a witness in the proceeding.

1. Made in the course of an undertaking: Sch 3“undertaking” includes public administration and any business, profession, occupation, calling, trade or undertaking whether engaged in or carried on—

(a) by the Crown (in right of the State of Queensland or any other right), or by a statutory body, or by any other person; or

(b) for profit or not; or(c) in Queensland or elsewhere.

• Undertaking = trade or businesso Includes Crown activityo Profit or non-profito In Qld or elsewhere

• “in the course of the undertaking” = something ordinarily created, not purely for legal purposes: Mendola v Warren

o Can still be ordinary even if created with legal proceedings in mind eg. An insurance company’s letters to client rejecting a claim: Geoffrey Hill & Assoc v Squash Centre

2. Supplier had personal knowledge• Information supplied by a person directly or indirectly• That person either had | reasonably supposed to have had personal knowledge of the events

3. Supplier called as a witness• Must be called as a witness, unless— (s92(2))

o Dead or unfit (physically or mentally): s92(2)(a)

o Out of the state & not reasonably practicable: s92(2)(b)o Cannot be found or identified with reasonable diligence: s92(2)(c) o Would not remember (due to time or otherwise): s92(2)(d) (it cannot reasonably be

supposed (having regard to the time which has elapsed since the maker or supplier made the statement, or supplied the information, and to all the circumstances) that the maker or supplier would have any recollection of the matters dealt with by the statement the maker made or in the information the supplier supplied)

o Cross-examining party doesn’t mind not calling them: s92(2)(e) (no party to the proceeding who would have the right to cross-examine the maker or supplier requires the maker or supplier being called as a witness)

o Would cause undue delay or expense: s92(2)(f) • Court can act on hearsay evidence to determine these matters: s92(3) (obviously not for

whether cross-examining party consents—Court can act on hearsay to decide on (2)(a), (b), (c), (d) or (f))

• If not called as a witness → can attack credibility to same extent as if calledo Can attack credibility as if they were called: s94(1)(a)o Can bring evidence of PIS in writing or orally of the person: s94(1)(b)← subject to same limitations as in XE: s94(1)o Evidence of criminal history of the person—as if they denied it on the stand: s94(2)

(persons other than the accused—if deny or refuse to answer question re criminal record, can proceed to prove: s16)

Discretion & Weight: ss96-102 [→above]


• Statements made by computer: s95


Criminal Proceedings: s93 QEA

Record made from info in business: s93(1)(a)(a) the document is or forms part of a record relating to any trade or business and made in the course

of that trade or business from information supplied (whether directly or indirectly) by persons who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with in the information they supplied

1. In the course of trade or business: s93(2)• ‘trade or business’ has ordinary meaning = something which is an occupation as opposed to a

pleasure: Rolls v Miller• Includes—

o private and public schoolso private and public hospitalso Crown activity : s93(2) (includes any public transport, public utility or similar

undertaking carried on in Queensland or elsewhere by the Crown (in right of the State of Queensland or any other right) or a statutory body)

• Does not include police statement

2. Forms part of a record← Suggests degree of permanence

• Employee’s diary: Standard Chartered Bank of Australia v Antico• Correspondence can be record: R v Jones• Depends on business

3. Supplier had personal knowledge• Information supplied by a person directly or indirectly• That person either had | reasonably supposed to have had personal knowledge of the events

4. Person not available to call as witness: s93(1)(b)• Dead or physically or mentally unfit: s93(1)(b)(i)• Out of state & not practicable to attend: s93(1)(b)(ii)• Cannot be found with reasonable diligence: s93(1)(b)(iii)• Would not remember: s93(1)(b)(iv) (cannot reasonably be supposed (having regard to the time

which has lapsed since the person supplied the information and to all the circumstances) to have any recollection of the matters dealt with in the information the person supplied)

May attack credibility of the witness—• Can attack credibility as if they were called: s94(1)(a)• Can bring evidence of PIS in writing or orally of the person: s94(1)(b)← subject to same limitations as in XE: s94(1)• Evidence of criminal history of the person—as if they denied it on the stand: s94(2) (persons

other than the accused—if deny or refuse to answer question re criminal record, can proceed to prove: s16)

If no good reason not to call (=s93(1)(b) not satisfied) → witness must be called to give evidence | document not admissible even when called (↔ civil trials under s92)


• Statements made by computer: s95


Hearsay Exceptions—Statement of a Child or Intellectually Impaired Person: s93A

• Object—to remedy with getting cogent evidence out of children by allowing them to give statements

• Can include—o Generally videotape or audiotape evidence, but can be written statement: R v Griffino Question and answer written document admitted: R v Broadwater

1. Maker is a child or mentally impaired: s93A(1)(a)the maker of the statement was a child or a person with an impairment of the mind at the time of making the statement …

• Child—o < 16 yrs when statement made, even if older than that nowo 16 or 17 yrs when statement made & special witness at time of proceeding

Special witness = (s21A(1))• mental, physical, intellectual impairment; or• likely to—

o suffer severe emotional trauma; or o be intimidated so much it is a disadvantage

2. Maker has personal knowledge: s93(1)(a)… and had personal knowledge of the matters dealt with by the statement

3. Maker available to give evidence: s93(1)(b)Child / intellectually impaired person must be available to testify

Related Statements: Q&A← in Q&A situation the Q’s are admissible as well as the A’s, but both child & interviewer must testify

o Question and answer written document admitted: R v Broadwater• Statement made to the maker to which they responded, which is also included in the document

= related statement: s93A(2A)• Related statement = admissible if the person who made that statement is available to give

evidence: s93A(2)

If not available to testify → document cannot be admitted at all



Hearsay Exceptions—Computer Records: s95

(Statement in a document tending to establish a fact of which direct oral evidence would be admissible [→above]) is admissible if— (all must be satisfied)

• Computer regularly used to store / process information for regular activities when document created: s95(2)(a) (that the document containing the statement was produced by the computer during a period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period, whether for profit or not, by any person)

• Information of that kind regularly supplied to computer: s95(2)(b) (that over that period there was regularly supplied to the computer in the ordinary course of those activities information of the kind contained in the statement or of the kind from which the information so contained is derived)

• Computer generally operating properly: s95(2)(c) (that throughout the material part of that period the computer was operating properly or, if not, that any respect in which it was not operating properly or was out of operation during that part of that period was not such as to affect the production of the document or the accuracy of its contents)

• Information in statements derived from information supplied to computer: s95(2)(d) (that the information contained in the statement reproduces or is derived from information supplied to the computer in the ordinary course of those activities)

Other provisions (Generally)• Statements produced by a computer are admissible: s95• The court may draw reasonable inferences from the form or contents of the document in

determining whether admissible: s96(1)• May accept medical certificate to determine whether a witness can attend: s96(2)• Court can decide how a document, or copy, is to be authenticated: s97• Discretion to reject or withhold

o Has discretion to reject if expedient in the interests of justice, even though complies: s98

o Document can be withheld from the jury room if the judge thinks the jury might place undue weight on it if it is to be allowed into the jury room: s99

• Where corroboration is needed, a statement made by the same person giving oral evidence and admissible under part 6 is not corroboration: s100

Determining the Weight of the Statements (Q of Fact)• Considerations— (s102)

o Whether statement contemporaneous with factso Whether maker of statement had any incentive to misrepresent or conceal the facts

• Weight of copies—take into account have lost the opportunity for XE on— (s125)o Why a copy needed to be made (or original destroyed, parted with)o Accuracy of reproduction

Incentive to tamper or misrepresent


Hearsay Exceptions—Books of account: s83-91

A book of account is admissible as evidence as to the transactions therein if it is an original book of account in the course of an undertaking

1. Book of account: s83book of account includes any document used in the ordinary course of any undertaking to record the financial transactions of the undertaking or to record anything acquired or otherwise dealt with by, produced in, held for or on behalf of, or taken or lost from the undertaking and any particulars relating to any such thing.

a. ‘document’: Definitions Sch3“document” includes, in addition to a document in writing— Schedule 3 QEA

(a) any part of a document in writing or of any other document as defined herein; and(b) any book, map, plan, graph or drawing; and(c) any photograph; and(d) any label, marking or other writing which identifies or describes anything of which it forms

part, or to which it is attached by any means whatever; and(e) any disc, tape, sound track or other device in which sounds or other data (not being visual

images) are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom; and

(f) any film, negative, tape or other device in which 1 or more visual images are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom; and

(g) any other record of information whatever.

b. Used in the ordinary course of an undertaking: Sch 3• Undertaking = trade or business

o Includes Crown activityo Profit or non-profito In Qld or elsewhere

• “in the ordinary course of the undertaking” = something ordinarily created, not purely for legal purposes: Mendola v Warren

o Can still be ordinary even if created with legal proceedings in mind eg. An insurance company’s letters to client rejecting a claim: Geoffrey Hill & Assoc v Squash Centre

c. to record the financial transactions (etc)• Record—Suggests degree of permanence

o Employee’s diary: Standard Chartered Bank of Australia v Anticoo Correspondence can be record: R v Joneso Depends on business

• “to record the financial transactions…or…anything”o Not limited to receipt books, profit and loss charts or ledgerso Must have some financial charactero Includes diaries with names of suppliers and prices paid: Duncan Davis v

Hurstbridge Abattoirs (Aust) Pty Ltdo Not include bank officer’s diary notes of non-financial matter [→ss92 & s93]: R v

Smart


2. Admissible if ordinary book of account: s85(1) An entry or a copy of an entry in a book of account shall not be admissible in evidence under this division unless it is first proved

• that the book was at the time of the making of the entry 1 of the ordinary books of account of the undertaking to which it purports to relate and

• that the entry was made in the usual and ordinary course of that undertaking.

• Admissible only if—o One of ordinary books of account of the undertaking; ando entry made in the usual and ordinary course of the undertaking

• Can be proven by a ‘responsible person familiar with the books of account’: s85(2)o Orally or by affidavit

Effect: s84Original→ evidence of the matters transactions and accounts therein recorded: s84(a)

Copies→ evidence of— (s84(b))

• the entry • of the matters transactions and accounts therein recorded

Must be verified— (s86)• must be proven that has been examined against original entry & that is correct: s86(1) (A copy

of an entry in a book of account shall not be admissible in evidence under this division unless it is further proved that the copy has been examined with the original entry and is correct)

• Can be proven by someone who has examined both together: s86(2)o Orally or by affidavit

NB—court may order book of account be made available on the application of any party to the proceedings: s88

May attack credibility of the witness not called• Can attack credibility as if they were called: s94(1)(a)• Can bring evidence of PIS in writing or orally of the person: s94(1)(b)← subject to same limitations as in XE: s94(1)• Evidence of criminal history of the person—as if they denied it on the stand: s94(2) (persons

other than the accused—if deny or refuse to answer question re criminal record, can proceed to prove: s16)



hearsay exceptions—res gestae threshold test of...

Documents