[1] See Ashworth and Pattenden, "Reliability, Hearsay Evidence and the English Criminal Trial" (1986) 102 LQR 292 at 293.
[2] Myer v DPP [1965] AC 1001 per Lord Reid. This decision was reaffirmed in R v Kearley [1992] 2 WLR 656. There has been extensive criticism of this approach. See Zuckerman, "Law Commission Consultation Paper No. 138 on Hearsay: (1) The Futility of Hearsay" [1996] Crim LR 4. Ashworth & Pattenden have also noted that following the Myer decision, the English courts have in part abandoned the hearsay/non-hearsay analysis of evidence and instead adopted reliability as a criterion for admissibility (326).
[3] (1990) 59 CCC(3d) 92.
[4] R v Khan is best viewed as the central piece in a triptych of the Canadian adoption of the flexible approach. The previous decision Ares v Venner (1970) 14 DLR (3d) 4 had established that Canadian courts were empowered to fashion new exceptions to the rule against hearsay. The later decision, R v Smith (1992)94 DLR (4th) 590, reaffirmed and extended the decision in Khan. See Carter, "Hearsay: Whether and Whither?" (1993) 109 LQR 573. Although there has been some controversy over whether the approach adopted in these decisions has replaced or merely supplemented the categorical approach to hearsay exceptions, it is clear that the scope of admissible evidence has been considerably broadened.
[5] Firstly, the courts do not have the power to create new exceptions. Secondly, although there is a residual exception for evidence with a 'circumstantial guarantee of trustworthiness' it is closer to a discretion than a rule of law. Thirdly, this exception derives from legislation, namely Federal Rules of Evidence R 807. The US exception also precedes its adoption in Canada by some 15 years. See Carter 590. The US approach has been criticised on the grounds that the wording of the rule is problematic. in particular the requirement of equivalent circumstantial guarantee is incoherent as the very fact that it has not fitted into any of the other exceptions means that there is no such guarantee. See Aronson and Hunter, Litigation (Australia: Butterworths, 1998) para 17.10.
[6] [2000] NZCA 322.
[7] However the court were of the view that such an exception would be more limited than its Canadian equivalent. They were critical of the scope of the Canadian exception which they claimed diluted the admission of hearsay "to little more than relevance coupled with a sufficient degree of reliability". See Robertson 423. It may be inferred from the court's criticism that they would reject a reliability-based exception as formulated by Mason.
[8] (1989) 166 CLR 283.
[9] "The hearsay rule should not be applied inflexibly. When the dangers which the rule seeks to prevent are not present or are negligible in the circumstances of a given case there is no basis for a strict application of the rule. Equally, where in the view of the trial judge those dangers are outweighed by other aspects of the case lending reliability and probative value to the impugned evidence, the judge should not then exclude the evidence by a rigid and technical application of the rule against hearsay.....[E]specially in the field of implied assertions there will be occasions upon which circumstances will combine to render evidence sufficiently reliable for it to be placed before the jury for consideration and evaluation of the weight which should be placed upon it, notwithstanding that in strict terms it would be regarded as inadmissible hearsay" Walton v R at 293.
[10] Palmer, "The Reliability-Based Approach to Hearsay," Sydney Law Review 17 (1995), 527.
[11] Not only is Mason CJ's formulation in Walton v R directly on point but, as Palmer notes, Kirby P in Astill v R [1992] ACrimR 208 interpreted the exception as discretionary. See Palmer at 527.
[12] Ratten v R [1972] AC 378
[13] See Ligertwood, Australian Evidence, 3rd Edition (Australia: Butterworths, 1998) 564.
[14] Even Carter who supports the Canadian approach to hearsay evidence has argued in relation to Mason CJ's inherent reliability exception that "[t]here would seem to be no good reason why evidence which contravenes, and does not fall within any known exception to, the hearsay rule should be unnecessarily admitted even if it has the appearance of reliability". See Carter at 590.
[15] Palmer 532.
[16] On this point see the contrastive analysis of unreliability in the joint judgment of Wilson, Dawson and Toohey at 306. Also see Palmer 533.
[17] (1989) 168 CLR 110
[18] It might be argued that it was the implied assertion of the mother-daughter relationship in the statement 'My mother is feeling sick' which is inherently reliable. However in light of the various factors of motive for fabrication and engagement in a criminal venture, the statement is hardly one which can be regarded as inherently reliable.
[19] (1992) 66 ALJR 613.
[20] (1974) 130 CLR 267. Barwick CJ stated that "the unlikelihood of concoction or distortion is not sufficient of itself to render a hearsay statement admissible".
[21] They considered there was a strong case for adopting a flexible approach to the rule against hearsay when the evidence "appears to have a high degree of reliability" at 144. However as McNicol & Mortimer, Evidence. 2nd Edition (Australia: Butterworths, 2001) have noted the justices' different views as to the reliability of the evidence in Pollitt v R indicates the indeterminate nature of the reliability exception (171) and its potential for unpredictability.
[22] See 616. In this case, Mason CJ's reliability exception seems to transform from an exception based on the criterion of spontaneity into a principle guiding the creation of new exceptions.
[23] However his support seems limited to those changes in circumstance which "throw up an identified category of case", as opposed to a general inherent reliability exception in Mason CJ's sense.
[24] Pollitt at 635
[25] "Redesign [of] the law of evidence...cannot be done piecemeal or by extensions which are not linked to an underlying principle" Pollitt at 619.
[26] He remarks that it is a rule "which has not hitherto been accepted as part of the law of evidence". Pollitt at 619.
[27] Mason CJ, Deane, McHugh and Toohey JJ.
[28] (1995) 70 ALJR 25
[29] However his criticism of Mason CJ's proposal is based upon an inaccurate characterisation of the exception. In particular he criticises the reliability exception on the grounds that it is not based on any specific criteria. However it seems that Mason CJ's reliability exception (at least in its original formulation in Walton v R), contra McHugh and Gaudron JJ in Benz v R, is based on the criteria of spontaneity and non-concoction. See Marshall, "Admissibility of Implied Assertions: Towards a Reliability-based Exception to the Hearsay Rule" Monash Law Review 23(1997), 215.
[30] He claimed that no case in the High Court "had decided that the law of hearsay is a principle rather than a rule with exceptions or that the rule is always subject to an exception in the case of evidence that is reliable" (Bannon v R at 40).
[31] (1999) 164 ALR 548
[32] Ibid at 313.
[33] See Palmer 525; Roberts 445. Cf. McNicol & Mortimer 170.
[34] Robinson v R (1996) 15 WAR 191 and R v Golightly (1997) 17 WAR 401.
[35] [2002] WASCA
[35] (25 February 2002)
[36] Ibid at para 334. Owen J, although indicating a preference for a flexible approach to the hearsay rule, concluded that following the decision of Bannon v R the current state of the law in Australia does not recognised such an exception (para 342).
[37] At the very least in cases where the statement is exculpatory of the accused. In both Button and Astill the relevant statements were exculpatory of the accused.
[38] "[T]he hearsay rule should be qualified so as not to preclude the receipt of evidence of contemporaneous statements made by one party to a telephone conversation (either in the course of the actual conversation or immediately before or after it) which disclose that the other party against whom it is sought to lead otherwise relevant and admissible evidence of that part of the conversation which was overheard" (Walton v R at 308).
[39] McNicol & Mortimer 171.
[40] At least on Mason CJ's reliability-based approach, implied assertions concerning the other party's identity made during the course of a telephone conversation are clearly reliable and form a natural category of exceptions.
[41] Such a position would be logically flawed. Cf. R v Miladinovic (1992) 109 ACTR 11. In this case Miles CJ held as admissible a statement made by the other party to the telephone conversation about the identity of somebody present with that party. This decision has been regarded as committing the 'telephone fallacy' which Palmer explains as the idea that "a statement is reliable merely because it is made over the phone". See Palmer 535.
[42] Pollitt v R at 629.
[43] Ibid at 640.
[44] Ibid at 635. As Chin has highlighted, these exclusions are justified on the basis that there is a greater likelihood of "false names and deliberate frame-ups" in criminal ventures, making such identifications inherently unreliable". See Chin, "Telephone Calls and Hearsay in Australia" LQR 109(1993), 47.
[45] This extension has been supported by Deane (Pollitt at 629), Mason (Pollitt at 616) and McHugh JJ (Polllitt at 640). Deane J also proposed extending the exception to statements made before the call but this has only been explicitly supported by any McHugh J (Pollitt at 616), though it is rejected by Toohey J in Pollitt v R at 635.
[46] Ashworth & Pattenden 314.
[47] Roberts, 443.
[48] Ibid.
[49] For example, if there had been no accomplice in Walton's case to provide independent evidence that Walton had called the deceased, it would have been more difficult to infer that she actually met him at the Town Centre. But if the telephone exception were invoked, the deceased's identificatory remark would assist in drawing the inference that an arrangement had been made and further that she had met him there.
[50] (1989) 52 SASR 391.
[51] Abrahamson v R (1994) 63 SASR 139. Cf. R v Kearley. The consequences of this view are that the statements cannot be used for the truth of their contents but only as factual evidence of inquiries being made. The practical effect of this distinction is negligible.
[52] However Brennan J's rejection of further judicial reform of the hearsay rule and Gaudron and Dawson JJ's reflections on the difficulty of extracting a principle to support such a view indicate a clear lack of support for the exception.
[53] He stated that "to the extent that statements made during or indeed immediately after a telephone conversation may constitute an exception to the hearsay rule, the scope of any such exception remains to be determined" (Pollitt at 636).
[54] It is significant that Toohey J regards such remarks to be admitted for the purpose of identification only "if the remarks themselves are admissible, whether as original evidence or otherwise" (636). This caveat may significantly impede the application of the telephone exception.
[55] This is the lowest common denominator view, that is one which all four justices would accept. Although both Mason CJ and Deane J would support more than this. Cf. the comments of Gaudron and Kirby JJ in Papakosmas which suggest that the telephone exception has not been recognised. I would submit that the weight of authority leans toward the recognition of a limited version of the exception. Bannon v R did little to resolve the issue as the facts did not promote a discussion of the telephone exception. However it reinforced Brennan CJ's rejection of the exception as implied by his rejection of judicial reform. More significantly, it also suggested that McHugh J may no longer support the exception given his comments about being reluctant to support new exceptions due to legislative reform in the area.
[56] Smith & Holdenson, "Comparative Evidence: The Uniform Evidence Acts and the Common Law," (1998) 72 ALJ 363.
[57] It is interesting to note that the ALRC did not suggest this provision. According to Odgen it was rejected by a majority of the ALRC. See Ogders, Uniform Evidence Law, 4th Edition (Australia: LBC Information Services, 2000) para 65.6.
[58] Ogders para 65.6. Ogders's view would appear to counter various attacks made against the provision on the ground that its "test of admissibility focuses upon the circumstances in which the statement is narrated and not upon the original observation. See Molomby and Clark, "Let's Not Hear it for Hearsay" (2001) 75 ALJ 134. Also see Palmer at 525 for a discussion of how reliability should be determined.
[59] Furthermore Ogders has argued that in the case of an intended implied assertion the onus will be upon the party arguing for the exclusion of the evidence due to the formulation of the provision (para 59.2).
[60] Given that a conversation consists of various responses to previous questions or comments, certain information may be implied through the particular responses.
[61] McHugh J's concerns will have significance in considering the probative value of the evidence.