Friday, February 04, 2005

Hearsay and mental gymnastics

Sometimes it seems right to admit evidence that is technically inadmissible. The problem of rationalising the admission of hearsay evidence can give rise to the making of elusive distinctions. These are between the fact that a thing was said, and the truth of what is asserted in that statement. Other elusive distinctions are between reliable and unreliable hearsay, and between the reliability of evidence and what may properly be called its strength.

In Kamleh v R [2005] HCA 2 (3 February 2005) the difficulty was one of distinguishing between whether hearsay evidence was relevant because of the fact it was said, and whether it was relevant to prove the truth of what it said. In the circumstances of the case, this issue was obiter, as it was not relied on by the appellant and in any event there was no miscarriage of justice because of the overall strength of the case against the appellant.

Nevertheless, the High Court was divided over whether the evidence in question was excluded by the rule against hearsay. Gleeson CJ and McHugh J held, applying Walton v R (1989) 166 CLR 283 (HCA), that the evidence was not hearsay and was admissible, whereas the other three Judges, Kirby, Hayne and Heydon JJ, in separate judgments, expressed difficulties in accepting that Walton was correctly decided.

The evidence at issue in Kamleh was adduced by the prosecution: it was a comment made by Mr Zappia (who had been tried separately for the same two homicides and who had been convicted of manslaughter in respect of each), who was not called as a witness at the appellant’s trial. In this comment he had told a prosecution witness, a few days before the killings, that he and the appellant were going to catch up with one of the victims because he owed them something or they had something to settle with him.

The fact in issue to which this comment was relevant was the fact that the appellant and Mr Zappia had been together at the time of the killings: it showed they knew each other and had a common interest concerning the victim. The appellant did not give evidence at trial but adduced alibi evidence which the prosecution alleged was false.

Applying Walton v R, Gleeson CJ and McHugh J held that the comment was not hearsay: what a person says about his intention is original evidence. The witness to whom Mr Zappia spoke was stating his intention and the report of this was a report of original evidence.

The obvious fragility of this reasoning troubled the other judges. Kirby J was concerned (para 27) at the "feat of mental gymnastics" that was involved; Hayne J pointed out (para 33) that the difficulty lay "in identifying why the fact that an out of court assertion was made is relevant to an issue in the case except for the purpose of demonstrating the truth of the content of the assertion." Heydon J noted (para 38) that the use of such evidence to prove the carrying out of the asserted intention was "highly controversial".

Kirby J thought (para 28) this problem was becoming esoteric because Walton was overtaken by the Uniform Evidence Acts (Cth), s 72. That section provides "The hearsay rule does not apply to evidence of a representation made by a person that was a contemporaneous representation about the person’s health, feelings, sensations, intention, knowledge or state of mind." With respect, this seems to preserve the Walton position, which is that they are not hearsay, they are original evidence.

What, then, if the comment in Kamleh is correctly categorised as hearsay? In New Zealand, the position is governed by the common law acceptance of hearsay evidence that is relevant, when the primary witness is unavailable, and when it has sufficient apparent reliability, either inherent or circumstantial, to justify its admission: R v Manase [2001] 2 NZLR 197, (2001) 18 CRNZ 378 (CA). Similarly, the Evidence Bill, s 18(1)(a), proposes that hearsay evidence should be admissible if, inter alia, there is reasonable assurance that it is reliable.

The judge would, in determining the admissibility of the hearsay statement, have to assess its reliability without knowing what evidence the defence would call on the point, unless at pre-trial application or at voir dire the defence wished to reveal that. This is not a great difficulty where the defence relies on alibi, as in Kamleh, because notice of the alibi evidence has to be given to the prosecution. But, in cases where it would not be tactically prudent for the defence to reveal its case prematurely, the judge’s assessment of the reliability of the prosecution’s hearsay evidence would not be fully informed.

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