Evidence relevant for a non-hearsay purpose

7.63 At common law, where hearsay evidence is admitted for a non-hearsay purpose, the court is not usually permitted to use it for its hearsay purpose even where it is relevant for that purpose.^[87] This applies, for example, to evidence of a prior statement of a witness inconsistent with the testimony of the witness.

7.64 By contrast, s 60 of the uniform Evidence Acts provides that:

The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of the fact intended to be asserted by the representation.

7.65 The section applies where evidence is admitted for a non-hearsay purpose and is relevant for a hearsay purpose. The intention of s 60 was to enable evidence admitted for a non-hearsay purpose to be used as evidence of the truth of the facts asserted in the representation, and to do so whether or not the evidence is first-hand or more remote hearsay, subject to the controls provided by ss 135–137.^[88] Other purposes of s 60 will be considered below.

7.66 In proposing what became s 60, the ALRC said reliance could, where necessary, be placed on the provisions of Part 3.11 to control the admissibility and use of evidence admitted under s 60. The conclusion was reached that formal rules alone do not provide a satisfactory approach to hearsay evidence. The ALRC said that the package of proposals later enacted by the uniform Evidence Acts provides balanced rules of admissibility with the discretions now found in ss 135 and 136.^[89] The change made to the law was significant and remains so.

7.67 Several issues arise:

(1) The s 60 approach was and remains controversial. Attention will be given to the reasons for enacting s 60.

(2) The High Court, in Lee v The Queen,^[90] has arguably construed s 60 in such a way as to limit its operation in ways not envisaged by the ALRC in its previous inquiry. The implications of Lee v The Queen require examination.

(3) Aside from Lee and its effects, criticisms made of s 60 require evaluation.

Reasons for enacting s 60

7.68 In the previous Evidence inquiry, the ALRC identified two major areas where difficulties arose from the common law principle that evidence admitted for a non-hearsay purpose could not be used for a hearsay purpose, even though the evidence was also relevant for the hearsay purpose. They are:

• prior consistent and inconsistent statements; and

• the factual basis of an expert’s opinion.^[91]

Prior statements

7.69 At common law, a prior statement of a witness can be used in prescribed circumstances for the purpose of deciding whether to believe the witness, but cannot be used for the purpose of deciding the truth of the facts asserted in the statement. Extensive criticism of this situation was identified in ALRC 26.^[92] Criticism focused on the following:

• the exclusion of probative evidence;^[93]

• the extreme difficulty, if not impossibility, of making the required distinction between use of the evidence for the hearsay purpose and for the non-hearsay purpose;

• the undesirability of proceeding on the assumption that such a distinction can be made easily or at all; and

• the questionable reasoning involved in the distinction.

7.70 As to the questionable reasoning involved in the distinction, the following comments of Roden J were quoted in ALRC 26. In relation to prior inconsistent statements, he gave the following illustration:

Illustration:

Evidence in Court: ‘I was there; I saw it happen’

Cross-examination: ‘Did you not say on a prior occasion, “I was not there; I didn’t see it happen”?’

Force of Rule: If the prior statement is admitted, or is denied but independently proved, then, subject to considering any explanation given by the witness:

(a) that statement may be taken as making it less likely that the witness was there and saw it happen (ie may be used to lessen the weight to be given to his testimony), but

(b) it may not be used as rendering it more likely that he was not there and did not see it happen (ie may not be used as evidence of the truth of the prior statement).^[94]

7.71 In relation to prior consistent statements, Roden J commented:

The prior consistent statement is only admissible in special circumstances, and then again not as evidence of the truth of its contents. When it is introduced, eg in answer to a suggestion of recent invention, it can so back-date any ‘invention’ to make invention at any time unlikely. The effect must be, it seems to me, to make it more likely that the evidence was truthful, and if the evidence and prior statement was to the same effect (as the term ‘consistent’ seems to require), then the statement is being used as evidence of the truth of its content.^[95]

7.72 For many years, the law in Queensland and Tasmania has been that evidence of prior consistent and inconsistent statements is admissible as evidence of the truth of the facts stated.^[96] Section 60 now performs an equivalent role in uniform Evidence Act jurisdictions.

7.73 Another major area of evidence which commonly falls within s 60 concerns the factual basis of expert opinion evidence.

Factual basis of expert opinion evidence

7.74 An expert’s opinion involves the application of the expert’s special knowledge to relevant facts to produce an opinion. At common law, if those facts are observed by the expert, he or she can give evidence to prove those facts. Typically, however, the expert relies partly upon statements made to him or her by others about their observations of events which are facts in issue, together with a wide range of factual information from more remote sources. These statements and other sources of information can range widely and include:

• statements to a medical expert by a person injured about the circumstances in which the injury was suffered and the subsequent progress of those injuries and past and present symptoms;

• information gathered by an expert valuer from a variety of people about the nature and quality of properties and the prices at which they were sold;

• information gathered by accountants and auditors (including financial records and other sources, including people) for the purpose of expressing opinions about the financial position or the management of companies;

• knowledge acquired by experts from reading the work of other experts and from discussion with them;

• the reported data of fellow experts relied upon by such persons as scientists and technical experts in giving expert opinion evidence;

• factual material commonly relied upon in a particular industry or trade or calling;

• information about the expert’s qualifications; and

• information received in the course of gaining experience upon which an expertise is said to be based.^[97]

7.75 The common law and the uniform Evidence Acts require that the facts and factual assumptions made and relied upon by a witness giving expert opinion evidence be sufficiently identified; evidence of matters such as those listed above is relevant for that purpose.^[98] Unqualified, the common law hearsay rule could, however, be used to prevent the expert’s evidence on these matters being used to prove the truth of the facts relied upon in forming the expert opinion.

7.76 Through necessity, the common law hearsay rule has been qualified both by judicial decision and legislation. Judge-made exceptions now except the following kinds of information from the common law hearsay rule:

• the accumulated knowledge acquired by the expert;

• the reported data of other experts; and

• information commonly relied on in a particular industry, trade or calling.^[99]

The common law exceptions for experts and s 60 compared

7.77 The ALRC explored the scope of these common law exceptions in relation to expert opinion in the previous Evidence inquiry.^[100] The proposal that became s 60 was formulated with these exceptions in mind, with the intention that s 60 would perform the role the miscellaneous common law exceptions had performed^[101] and the complication of specific exceptions for these kinds of evidence avoided.

7.78 Section 60 also applies to representations of fact unique to the particular case upon which the expert bases his or her opinion. Such evidence is hearsay at common law, but s 60 lifts the statutory hearsay rule in that situation. An example is evidence from a doctor of a medical history given to the doctor. At common law, the High Court made clear in Ramsay v Watson that the doctor’s evidence could be admitted to show the basis of the expert opinion, but not as evidence of the truth of the statements made to the doctor.^[102]

7.79 Whether such opinion evidence is admissible under the uniform Evidence Acts will depend on the significance of the hearsay evidence and whether other evidence of the truth of the medical history is led. For example, the opinion itself could be excluded as irrelevant because there is insufficient evidence of the factual basis of the opinion.^[103] Assuming the relevance requirements are satisfied, and provided the doctor has the relevant expertise and otherwise satisfies the requirements of s 79, s 60 will allow such evidence to be used as evidence of the asserted fact subject to the provisions of Part 3.11. This is the outcome the ALRC intended.^[104]

7.80 The operation of s 60 must be seen in the context of the conduct of trials. First, it only operates where evidence is already before the court—typically, either from the person alleged to have made a prior consistent or inconsistent statement or from the expert who has given evidence of the factual basis of his or her expert testimony. Other points should be noted.

• Prior statements. On occasion there will be disputes as to whether the statements were made and whether they were accurate. However, often the statements will be more reliable than the evidence given by the witness. In any event, the person who made the statement will often be a witness and can be cross-examined. Under s 60, it is then for the tribunal of fact to determine what weight it will give that evidence in the context of all the evidence. This is a more realistic approach than expecting the tribunal of fact to draw the artificial and difficult distinction, required by the common law, of using the evidence for one purpose but not for another.

• Evidence of the factual basis of expert opinion. In the majority of cases, the person supplying the factual material will be called to testify—for example, the injured plaintiff in a tort action. Through the use of s 60, the tribunal of fact can adopt a more realistic approach. It can assess the weight that the evidence should be given. Under the common law, the tribunal of fact is required to use the evidence for the non-hearsay purpose but not for the hearsay purpose. Further, while the statements made to the expert by a party might be self-serving, often the factual basis is reliable and not disputed. In those cases where it is disputed, the dispute will usually be confined to few facts.

7.81 For those reasons, it may be said that s 60 enhances the appearance and reality of the fact-finding exercise. It also enhances the fairness of the trial process by allowing evidence admitted for one purpose to be used for other relevant purposes. The focus will be on the weight to be accorded to the evidence, not on admissibility.

7.82 At the same time, it is recognised that there will be situations where s 60 could allow evidence of doubtful probative value to be received, and also evidence that cannot be adequately tested because the person who made the statement to the expert is not called to testify. In these situations, the fact-finding process and the fairness of the proceeding are challenged. To address these possibilities, the uniform Evidence Acts contain Part 3.11, which can be invoked either to exclude the evidence or to limit its permitted use. Part 3.11 also recognises the special policy concerns related to the criminal trial. Other safeguards, such as the request provisions in Part 4.6, also apply.

7.83 It is important to keep in mind that s 60 only operates in respect of evidence already admitted. If time and cost are concerns in a particular case, Part 3.11 is available to control the situation. In the case of the expert’s evidence of the factual basis of his or her opinion, there is greater potential for the wastage of time and cost under the common law approach. The party against whom the evidence is led can take technical objections to any of the evidence so led, whether the evidence is in dispute or not. Under the uniform Evidence Acts, that party must justify rejection of the admission or the use of the evidence under Part 3.11.^[105]

7.84 Clear, simple and easily applied rules of evidence are a desirable policy goal. The alternatives to s 60 require separate provisions dealing with the admissibility and use of prior consistent and inconsistent statements and the ill-defined common law exceptions, referred to above, which relate to the factual basis of expert testimony.

7.85 It is understandable that a person considering s 60 for the first time would see it as an extremely bold departure from the common law. However, the change must be considered in the context described above: that of the realities of the trial, and the statutory context in which s 60 operates. Viewed in that light, it is clear that s 60 is the result of a cautious approach to a number of major issues, and that it results in a simple and sound solution to those issues.

7.86 The considerations just discussed will be referred to when discussing criticisms of s 60 later in this chapter. The discussion also provides a background for evaluating the operation of s 60 in the courts, and in particular the High Court.

Lee v The Queen: defining the operation of s 60

7.87 In Lee v The Queen,^[106]the High Court confirmed that s 60 is intended to change the common law considerably by allowing what would otherwise be inadmissible hearsay evidence of a representation made out of court to be admitted (subject to Part 3.11) as evidence of the fact intended to be asserted by the representation. However, the High Court identified an important limitation on the operation of s 60.

Facts

7.88 The defendant (Lee) was tried for assault with intent to rob. At trial, evidence was led of a statement made about the defendant to the police by a witness, Calin. The statement to police reported that Calin had seen Lee walking up the street near the scene of the robbery and was told by Lee: ‘… leave me alone, cause I’m running because I fired two shots … I did a job and the other guy was with me bailed out’.^[107] In oral evidence, Calin admitted signing the statement to police but denied that the statements in the signed document were his.^[108] The prosecution then called the police officer who prepared the statement, and evidence of the representation was admitted through that officer. Another police officer testified that Calin made a similar oral statement to that officer. Both the signed statement and evidence of the oral statement made by Calin to the police were admitted into evidence.

7.89 The High Court said in a joint judgment^[109] that evidence of what Calin reported Lee had said ‘went only’ to Calin’s credibility as evidence of a prior inconsistent statement.^[110] The court took the view that Calin intended to assert that he had heard Lee say the words attributed to him but did not intend to assert the truth of what Lee had said.

The limitation on s 60

7.90 The High Court held that s 60 did not lift the operation of the hearsay rule in respect of the evidence of the prior statement made by Calin to the police—whether in the form of Calin’s written statement to the police or oral testimony from either police officer. The reasoning supporting that conclusion is subtle, and doubts have been raised as to the precise principle applied.^[111]

7.91 To explore the effect of the decision it is necessary to accept a formulation of the principle applied. Therefore, the following analysis proceeds on the basis that the essence of the reasoning is that ‘s 60 does not convert evidence of what was said, out of court, into evidence of some fact that the person speaking out of court did not intend to assert’.^[112]

7.92 This proposition encapsulates the following steps:

(a) s 60 operates only on representations that are excluded by s 59;

(b) s 59 operates only on evidence of a previous representation made by a person to prove the existence of a fact that the person intended to assert by the representation;

(c) therefore, s 60 does not apply to make admissible evidence of a representation the truth of which the witness did not intend to assert.

7.93 Applying these steps to the facts of Lee, evidence of Calin’s statement to the police could not be used as truth of the admission made to Calin because Calin could not be taken to have intended to assert the truth of the admission.

7.94 Uncertainty arises from the above formulation. For example, if Calin’s statement was not intended to assert the truth of the admission, on what basis did s 59 apply? By definition, s 59 only applies ‘to prove the existence of a fact that the person intended to assert’.^[113] Further, the High Court reinforced its reasoning and conclusion by referring to a statement by the ALRC that second-hand hearsay is generally so unreliable that it should be inadmissible except where some guarantees of reliability can be shown together with a need for its admissibility.^[114] This has encouraged the view that s 60 does not apply to hearsay evidence more remote than first-hand hearsay. It raises serious doubt as to the application of s 60 to experts’ evidence of the factual basis of their expert opinion, including those facts covered by the common law hearsay exceptions.

The policy underlying s 60 as articulated by the ALRC

7.95 In referring to the ALRC policy,^[115] the High Court said the exceptions to s 59 of the Act

are to be understood in light of the view expressed by the Law Reform Commission that ‘second hand hearsay is generally so unreliable that it should be inadmissible except where some guarantees of reliability can be shown together with a need for its admissibility’. As the Commission went on to point out, where A gives evidence of what B said that C had said, the honesty and accuracy of recollection of B is a necessary link in the chain upon which the probative value of C’s statement depends. Estimating the weight to be attached to what C said depends on assessing B’s evidence about it.^[116]

7.96 The passage quoted from ALRC 26 was not related specifically to the proposal that became s 60. The passage which does relate specifically to that proposal reveals a different intention. The ALRC said:

Under existing law hearsay evidence that is admissible for a non-hearsay purpose is not excluded, but may not be used by the court as evidence of the facts stated. This involves the drawing of unrealistic distinctions. The issue is resolved by defining the hearsay rule as preventing the admissibility of hearsay evidence where it is relevant by reason only that it would affect the court’s assessment of the facts intended to be asserted. This would have the effect that evidence relevant for a non-hearsay purpose—eg to prove a prior consistent or inconsistent statement, or to prove the basis of the expert’s opinion—will be admissible also [as] evidence of the facts stated[.]^[117]

7.97 The ALRC did not intend to limit s 60 to first-hand hearsay, either in relation to prior statements or in relation to the factual basis of expert opinion evidence.^[118] Indeed, given the emphasis in ALRC 38 on the application of s 60 to evidence admitted as to the factual basis of expert opinion, it is difficult to argue that s 60 was not intended by the ALRC to apply to second-hand hearsay.^[119] Uncertainty arises because a belief now exists that Lee v The Queen decides that second-hand and more remote hearsay does not fall within s 60.

Lee v The Queen: defining s 60

Prior statements

7.98 The significance of the uncertainties created by Lee v The Queen for the admission of evidence of prior statements is difficult to determine. However, the effect of Lee is that evidence of unintended implied assertions or second-hand hearsay may be treated as subject to the hearsay rule, contrary to the ALRC’s intentions.

Expert opinion evidence

7.99 The uncertainty about the true policy basis of s 60 has much clearer effects on expert opinion evidence. If Lee is read as deciding that s 60 has no application to second-hand and more remote hearsay, it follows that evidence of accumulated knowledge, recorded data, and other factual material commonly relied upon by experts will be inadmissible as evidence of the truth of the facts asserted in the material.^[120] Yet a central reason for enacting s 60 was to continue to allow such evidence to be admissible as evidence of the truth of the facts asserted, even though the evidence is hearsay.

Conclusion on the effects of Lee v The Queen

7.100 The confusion following Lee v The Queen potentially has wide effects and serious implications for the conduct of litigation. The High Court’s interpretation of the effect of s 60 is contrary to the ALRC’s intention, and runs counter to the policy underlying the admissibility of evidence in the uniform Evidence Acts.