Author:	Rebecca Collins BA (Hons), PhD University of Western Australia School of Law
Subjects:	Evidence (Law) (Other articles) Evidence Hearsay Australia
Issue:	Volume 10, Number 4 (December 2003)
Category:	Refereed Articles

Contents:

• Introduction
• The Inherent Reliability Exception
• Telephone Exception
• Impact of the Evidence Act 1995 (Cth)
• Conclusion
• References
• Notes

Introduction

1. In Australia, the general dissatisfaction with the operation of the traditional hearsay rule is arguably matched only by the dissatisfaction created by current judicial responses to reform of the rule. In contrast, most other common law jurisdictions have now adopted a definite position on the judicial role in reforming the rule against hearsay. The UK and Canadian approaches mark out the two most extreme responses to the issue. In what has been criticised as "perhaps the most obstructive decision in the field of hearsay"[1] the House of Lords took the firm stance that any reform of the hearsay rule would need to come from the legislature.[2]

2. However in the Canadian landmark case of R v Khan[3] the Supreme Court of Canada adopted a flexible approach to the hearsay rule.[4] The US approach is closely aligned with the Canadian approach, though with some variations.[5]

3. Similarly recent New Zealand decisions accord with the Canadian approach. In the case of Manase v R [6] the New Zealand Court of Appeal formulated a new general residual exception to the hearsay rule based on the criteria of relevance, inability and reliability.[7]

4. Amidst this repositioning by the various common law jurisdictions on the issue of judicial reform of the hearsay rule, the Australian position is both ambiguous and substantially undetermined. In this paper both the reliability exception and telephone exception will be examined and their judicial support determined. I will argue that there is clear support in the High Court for 'a' telephone exception but that currently its scope remains underdetermined. Finally I claim that the Australian schizophrenic approach to judicial reform of the hearsay rule may be partially excused by reason of the enactment of the Evidence Act 1995 (Cth). When this Act is uniformly adopted by all the States, it is clear that the Australian approach will closely correspond to the approach in most other common law jurisdictions.

   The Inherent Reliability Exception

5. Walton v R[8] marks the emergence of the High Court debate on the prospects for judicial reform of the hearsay rule. The inherent reliability exception was first articulated by Mason CJ (as he was then) in this case.[9] There are several points to note about this exception. Firstly, it is formulated as a discretion rather than a criterion-based categorical exception. It is expressed in terms of weighing up the competing factors of reliability (such as spontaneity, non-concoction) against various dangers (such as the lack of cross examination, motive for fabrication). The legal significance of the exception's characterisation as a discretion is that it would be much more difficult for appellate courts to overturn a decision regarding an issue of admissibility.[10]

6. Although Palmer has argued for its characterisation as an exception, there is clear textual evidence which suggests the contrary.[11] Secondly, the exception is based upon an extension of the Ratten[12] determinant of the res gestae exception, namely spontaneity, to all evidence whether part of the main transaction or not.[13] For Mason CJ, spontaneity forms the basis of the reliability exception. This singular focus has been extensively criticised.[14] Indeed the Canadian approach to hearsay evidence, which is generally regarded as being the most flexible approach, is guided by the twin criteria of necessity and reliability. Furthermore, Palmer highlights the fact that spontaneity as a general determinant is inadequate, as it does not guard against the possibility of mistake.[15]

7. However it may be objected that such criticisms fail to pay due regard to the balancing act Mason CJ proposes. On this view, spontaneity is to be considered as merely one of the factors, albeit a very important factor, indicative of reliability. Unfortunately such an argument loses force when consideration is given to some of the actual decisions made on this point by Mason CJ. In Walton v R, the child's statement 'Hello Daddy' on the phone was considered inherently reliable despite the mother having passed the phone to the child with the information that "Daddy is on the phone".[16]

8. In Benz v R,[17] Mason CJ considered that the circumstances of a woman caught by surprise after participating in a murder were such as to warrant her statement to a stranger as reliable. Yet surely, the situation of being quite literally 'caught' by surprise would tend to increase the probability of concoction given the declarant's obvious motive for avoiding detection or suspicion.[18] Finally in Pollitt v R[19] Mason CJ found Allen's statements to be inherently reliable despite his criminal character and participation in a criminal venture at the time the statements were made. Each of these factual determinations suggests that Mason CJ's balancing requirement does not add much to the criterion of spontaneity.

9. The inherent reliability exception was rejected in the joint judgment of Wilson, Dawson and Toohey in Walton who reaffirmed Barwick CJ's approach in Vocisano v Vocisano.[20] However the exception was supported by Gaudron and McHugh JJ in the later case of Benz v R.[21]

10. It was not until Pollitt that most of the justices expressed their views on the exception. Mason CJ reiterated his support for the adoption of an inherent reliability exception, however this time he used reliability as the criterion of a particular exception, namely the telephone exception.[22] McHugh J supported Mason's inherent reliability exception to the extent that he reaffirmed what he had said in Benz about the need to admit hearsay evidence "when it appears to have a high degree of reliability". Deane J also supported a flexible approach to the hearsay rule.[23] Toohey J's judgment is ambiguous. On the one hand he clearly rejects the notion that spontaneity is sufficient of itself to render a hearsay statement admissible.[24] Yet simultaneously he registers his support for a flexible approach to the hearsay rule and proceeds to consider those factors which contribute to the reliability of statements. However Toohey J's view does not seem to support an inherent reliability exception as such but rather a general reliability principle guiding the development of new categories. In contrast, Brennan J explicitly rejected the flexible approach to the hearsay rule in a passage reminiscent of Lord Reid in Myers.[25] He further rejects Mason CJ's proposed reliability exception in no uncertain terms.[26] Therefore the decision in Pollitt suggests that there is no majority support for Mason's inherent reliability exception as a particular exception based on spontaneity and non-concoction. However there does appear to be majority support[27] for the reliability exception as a broad guiding principle in the development of new categories of exceptions.

11. In the same way that Walton v R marked the emergence of the debate on a new approach to hearsay evidence, Bannon v R[28] may be considered as the dusk of the debate. Once again Brennan CJ forcefully asserted his rejection of both a flexible approach to the hearsay rule and the inherent reliability exception.[29] McHugh J crossed the floor in this case.[30] Evidently influenced by the then recent legislative reform in the area, he expressed reluctance to support any new changes to the rule against hearsay. Although Dawson, Toohey and Gummow JJ found it unnecessary to decide whether a new exception should be created for third party confessions against penal interest, to the extent that they considered the issue in terms of a specific exception as opposed to a principle-based approach to hearsay evidence, it can be inferred that the reliability exception even as a broad guiding principle has now lost favour in the High Court. Recent confirmation of this conclusion has been given in Papakosmas v R[31] by Kirby and Gaudron JJ who stated that no exceptions to the hearsay rule have been admitted to the common law since the Myers decision.[32] Therefore at present the weight and indeed trend of authority appears to be against the recognition of an inherent reliability exception whether as a principle or a categorical exception.

12. There appears to be support for Mason CJ's inherent reliability exception at the trial and intermediate courts.[33] Although the exception was referred to in several WA decisions,[34] it was not until the case of Button v R[35] that support for the inherent reliability exception was expressed. Malcolm CJ admitted certain confessional statements on the ground of reliability. Wallworth J explicitly endorsed the Mason CJ's formulation of the inherent reliability exception as stated in Walton v R..[36] Consequently there is strong support for the recognition of the inherent reliability exception in WA,[37] and it is submitted that until a contrary decision by the High Court, the courts in WA are likely to recognise such an exception.

    Telephone Exception

13. Unlike the inherent reliability exception, the telephone exception is clearly formulated as a non-discretionary category of exception. Deane J's judgment in Walton is the source of the exception.[38] The rationale for the exception is that statements identifying the other party to the telephone conversation possess a minimal risk of fabrication and are generally of high probative value.[39] It is the combination of the qualities of spontaneity and non-assertiveness which create a strong presumption of reliability.[40] This exception is directed at those statements made during the course of a telephone conversation which are overheard by a person in proximity of the party speaking on the telephone, as opposed to statements made by one party to the telephone conversation to the other party.

14. The most significant limitation on the scope of the exception is that it only extends to statements which identify the other party to the telephone conversation. It is not a general 'catch-all' exception for any statement overheard in a telephone conversation merely because they were made through the medium of a telephone.[41] However this limitation has been further qualified in various ways. Deane J has stated that the exception should only be available when there is no significant possibility of fabrication.[42] More specifically McHugh limited the exception to ordinary social and business calls, and excluded conversations made in pursuance of a criminal venture.[43] Similarly Toohey J appears to conclude that identifications made in the course of conversations furthering criminal purposes should be excluded.[44] Toohey J also sought to limit the exception to those statements made during the course of a telephone conversation. However there is strong support for its extension to statements made immediately after the call.[45]

15. The telephone exception has been the subject of various criticisms. First, it is argued that although assertions which identify the other party to the call are usually implied, this does not negate the possibilities of insincerity and mistake.[46] Secondly, Roberts has highlighted the apparent arbitrariness of the telephone exception by comparing the admissibility of an identificatory remark made over the phone with the inadmissibility of an identificatory remark made at the doorstep in circumstances where the witness overhears the identificatory remark.[47]

16. However this is better viewed not as a problem with the telephone exception as such but rather a consequence of the court's lack of judicial reform in this area. If anything, Robert's hypothetical points out the need for developing new exceptions as categories arise. Thirdly, it is argued that the exception is likely to be of little significance as it will not assist in the admission of the actual contents of the telephone conversation.[48] Although this is strictly true, it will often have the significant effect of enabling an inference to be drawn.[49] Finally, Roberts argues that the telephone exception will be of no assistance to the drug cases such as R v Firman.[50] However this is unlikely to be a problem in Australia as it has been recognised at least in SA courts that such calls are admissible as original evidence of the existence of a business or activity of selling drugs.[51]

17. The telephone exception was last discussed by the High Court in Pollitt. Mason CJ, Deane and McHugh JJ were in clear support of such an exception while Brennan, Gaudron and Dawson JJ declined to consider the issue.[52] The deciding judgment therefore was that delivered by Toohey J. Although at the end of his judgment he indicated that the scope of the telephone exception remains to be determined,[53] his recognition that reactive remarks made over the telephone should be admissible for the purpose of identification would seem to provide majority support for the telephone exception.[54]

18. There is majority support at least for the view that the telephone exception is available for statements identificatory of the other party to the call made during the course of an ordinary social or business call which are overheard by a third party.[55]

    Impact of the Evidence Act 1995 (Cth)

19. The Evidence Act 1995 (Cth) has significantly reformed the law on hearsay evidence and has arguably brought those Australian jurisdictions, in which it has been enacted, in alignment with the approach now favoured by most common law jurisdictions. The Act takes a flexible approach to the rule against hearsay but has established various procedural safeguards to protect the party against whom the evidence is to be led.[56]

20. Mason CJ's proposal for a inherent reliability exception is made law through s 65(2)(c), although in a modified form.[57] It is limited to first-hand hearsay sought to be led in criminal proceedings where the declarant is unavailable and "made in circumstances that make it highly probable that the representation is reliable". There is some dispute over what circumstances are to be taken into account in assessing the reliability of the representation. However Ogders has argued that the better view is that the court should consider the circumstances of other events and not just the factual setting of when the statement was made.[58]

21. The telephone exception is given partial effect in the Act through the definition of hearsay in s 59(1). This section excludes all unintended assertions from the ambit of the hearsay rule. Although unintended assertions are not strictly coextensive with implied assertions,[59] identificatory remarks made over the phone would generally be considered as unintended assertions. Furthermore it is likely that, under the Act, non-identificatory statements made during the course of a telephone conversation may also be admitted due to the frequency of implied assertions made in such circumstances.[60]

22. However there may be an issue with the extension of the telephone exception to identificatory remarks made after the telephone conversation as these would constitute express assertions and therefore fall within the scope of the rule in s 59(1). But such remarks are likely to be admissible under ss. 65(2)(b) or 65(8)(a) in criminal cases where the maker is unavailable, or alternatively, where the maker is available, under s 66(2) in criminal cases and s 64(3) in civil cases. As for McHugh J's qualifications to the telephone exception, these may be given effect by the available discretions in ss 135, 136 and 137.[61]

    Conclusion

23. The inherent reliability exception does not have clear support at common law. However there is obiter support for its recognition in a recent WA decision which may be persuasive in the decisions of lower courts. A limited version of the telephone exception does have majority support at common law. However there are indeterminacies in the scope of the exception, its limitation to identificatory statements seems incontestable. The reform generated by the Evidence Act 1995 (Cth) bestows legitimacy on what are two controversial exceptions at common law. If and when the Act is made uniform, its reforms will dispel much confusion in the area of hearsay evidence and significantly bring the Australian law in this area into alignment with the approach favoured by most other common law jurisdictions.

References

Ashworth & Pattenden, "Reliability, Hearsay Evidence and the English Criminal Trial" (1986) 102 LQR 292.

Aronson, M. & J. Hunter. Litigation. Australia: Butterworths, 1998: pp. 746-805.

Byrne, D. & J. D. Heydon. Cross on Evidence. 6th edition. Australia: Butterworths, 2000: pp. 859-861; 912-914; 1040.

Carter P. B. "Hearsay: Whether and Whither?" (1993) 109 LQR 573.

Chin, T. Y. "Telephone Calls and Hearsay in Australia" (1993) 109 LQR 45.

Ligertwood, A. Australian Evidence. 3rd Edition. Australia: Butterworths, 1998: pp. 564-567.

Lim Y. F. "A Logical View of the Hearsay Rule" (1994) 68 ALJ 724.

Marshall, Brenda. "Admissibility of Implied Assertions: Towards a Reliability-based Exception to the Hearsay Rule" (1997) MonLR 200.

McGinley & Waye, "Implied Assertions and the Hearsay Prohibition" (1993) 67 ALJ 644.

McNicol S. & D. Mortimer. Butterworths Tutorial Series: Evidence. 2nd Edition. Australia: Butterworths, 2001: pp.158-207.

Molomby & Clark, "Let's Not Hear it for Hearsay" (2001) 75 ALJ 133.

McGinley, G. "Bull; King; Marotta: Case and Comment" (2000) 24(5) CrimLJ 315.

Ogders, S. Uniform Evidence Law. 4th Edition. Australia: LBC Information Services, 2000: paras 59.5 - 67.

Palmer A. "The Reliability-Based Approach to Hearsay" (1995) 17 Syd LR 522.

Robertson, B. "What's Left of Hearsay?" (2001) NZLR 421.

Smith & Holdenson, "Comparative Evidence: The Uniform Evidence Acts and the Common Law" (1998) 72 ALJ 363.

Waight P. K. & C. R. Williams. Evidence: Commentary and Materials. 6th Edition. Australia: LBC Information Services, 2002: pp. 598-670.

Zuckerman A. A. S. "Law Commission Consultation Paper No. 138 on Hearsay: (1) The Futility of Hearsay" [1996] CrimLR 4.