Admissions which are not first-hand

10.144 One relatively narrow issue has arisen with respect to the operation of s 60 of the uniform Evidence Acts in the context of admissions which are more remote than first-hand hearsay. The situation may arise as follows. X says to Y, “I assaulted V”. Y then repeats that statement to Z who is called to give evidence against X.[232] Notwithstanding that this is second-hand hearsay, if the contested statement is admissible by the operation of one of the statutory exceptions to the hearsay rule (for example, on credibility grounds under Part 3.7), then, subject to the operation of any other exclusions or limitations, it may be allowed into evidence by operation of s 60.[233] This principle also applies in relation to more remote forms of hearsay.[234]

10.145 While the contested statement may, prima facie, be allowed into evidence, there are several ways in which such a statement, or its use, could be partially or wholly excluded—that is, before or after the contested statement is actually allowed into evidence. Such a statement may be excluded under s 83 as an admission against a third party; it may be excluded under s 84 if it was improperly obtained; it may be excluded under s 85 if the relevant conditions are met; it may be excluded for unfairness within the ambit of s 90; or, the court may exclude or limit the use of the statement as evidence on one of the grounds in ss 135–139 of the Acts.

10.146 Even if none of the exclusions in the previous paragraph apply, a court would first have to consider Lee v The Queen[235]when determining whether to allow the contested statement into evidence and, if so, subject to what conditions. Critical to the High Court’s construction of s 60 was its observation that

[Section] 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 attend to assert.[236]

10.147 This statement has been interpreted to mean that s 60 does not allow second-hand or more remote hearsay to be used as evidence of an admission or, in other words, such a statement (if allowed into evidence) must not be used to prove the truth of the fact which appears to be asserted by the representation.[237] That is, in the hypothetical example above, Z’s evidence of the statement by X (‘I assaulted V’) could not be used to prove that X did indeed assault V because Z never intended to assert that X assaulted V. This reasoning is consistent with Lee because, in that case, the High Court held that the witness (Calin) never intended to assert that the defendant had actually ‘done a job’, but merely that the defendant had said that he had ‘done a job’.[238]

10.148 It should also be noted that the Commissions recommend that s 60 of the uniform Evidence Acts be amended so as to confirm that s 60 operates to permit evidence admitted for a non-hearsay purpose to be used to prove the truth of the facts asserted in the representation, whether or not the evidence is first-hand or more remote hearsay.[239] Subject to the qualification explained in Chapter 7 that it is difficult to discern a single, unifying ratio in Lee, this recommendation is intended to overcome the High Court’s decision in Lee.[240]

10.149 Although there are numerous ways in which an admission which is not first-hand may be excluded, or its unfair effects mitigated, there is no clear rule that such statements must be excluded. To some extent, therefore, whether or not such a statement is allowed into evidence will depend on the discretion of the particular presiding judge. Thus, while the uniform Evidence Acts contain various safeguards to prevent a miscarriage of justice arising from such a statement being erroneously or unfairly allowed into evidence, the Commissions believe that the remaining scope for this to occur (narrow though that scope is) should nevertheless be foreclosed.

Risks of unfairness to the accused

10.150 There are three particular risks associated with evidence derived from statements constituting admissions which are not first-hand. First, as discussed earlier in this chapter, admissions, in the criminal law context, are subject to tight restrictions on admissibility. The reason for this strict approach to admissions is that evidence of an admission can be highly persuasive as to whether the evidence is reliable or not and can, therefore, be highly prejudicial to the accused. In some cases, the evidence of an admission can be critical to the Crown case. For these reasons, it is important to ensure that the evidence of the admission is sufficiently reliable before it is allowed into evidence. This is not to say that juries are unable to differentiate between reliable and unreliable evidence.[241] However, because evidence of an admission can be powerful, the court should, where possible, take a prophylactic approach by excluding an unreliable admission prior to allowing it into evidence because, once an admission is in court, it is difficult to cauterise or limit its impact.[242]

10.151 Secondly, if admissions constituting remote forms of hearsay are more frequently allowed into evidence, it could have serious deleterious effects on the rights of an accused. For instance, the right to silence is undermined where a defendant can be inculpated by a statement which was said to have been made by the defendant but over which the defendant has lost all control. There is a qualitative difference between allowing into evidence an admission that is first-hand hearsay and allowing an admission constituted by a more remote form of hearsay. For first-hand hearsay, a person, X, makes an admission to another person, Y, and Y then gives evidence about it. As it was X who made the statement to Y in the first place, X had control over its content. However, with more remote hearsay, the situation changes to one in which Y purports to repeat X’s statement to Z and Z then gives evidence.[243] In this second situation, X will have lost control over what is, in substance, ‘X’s admission’. There is a greater risk of error or distortion in the re-telling and it is conceivable that even an apparently minor error can inculpate the defendant.[244]

10.152 Another possible incursion into the rights of an accused relates to the problem of police ‘verbals’. The general nature of this problem is widely recognised.[245] Its application in the specific context of evidence of admissions constituted by more remote forms of hearsay is manifest: if the Crown is permitted to adduce such material, the defendant will face grave difficulties in trying to refute it. As was stated in the joint majority judgment (Mason CJ, Deane, Gaudron and McHugh JJ) in McKinney v The Queen:

[I]t is comparatively more difficult for an accused person held in police custody without access to legal advice or other means of corroboration to have evidence available to support a challenge to police evidence of confessional statements than it is for such police evidence to be fabricated …[246]

10.153 The third risk relates to the concern that hearsay evidence is inherently problematic.[247] This is why the uniform Evidence Acts establish the general rule that hearsay evidence should be exluded.[248] The fact that this general rule is subject to a limited number of exceptions does not detract from the principle just stated—namely, that caution should be exercised before admitting hearsay evidence because it is potentially unreliable. The risks are, however, compounded when one is dealing with hearsay which is more remote than first-hand hearsay.[249]

10.154 None of this is to say that hearsay evidence is always unreliable, nor that first-hand or more remote hearsay should be excluded in all circumstances. However, evidence derived from hearsay that is more remote than first-hand should be treated with caution, a fact that was at the heart of submissions urging that the uniform Evidence Acts be amended so that s 60 would no longer apply to second-hand and more remote hearsay.[250]

The Commissions’ view

10.155 The Commissions believe that the combination of the three main risk factors identified above militates in favour of an amendment to the uniform Evidence Acts. This amendment would make clear that evidence of an admission, constituted by a statement which is more remote than first-hand hearsay, should be excluded from the ambit of s 60.

10.156 In summary, this amendment is necessary because admissions can be highly persuasive, whether reliable or not, and highly prejudicial to the case of an accused. It is therefore important that the reliability of evidence of admissions is maximised. Having regard to the three risk factors, evidence which is more remote than first-hand hearsay should be excluded unless its reliability can be assured.

10.157 Finally, the Commissions believe the proposed amendment to the operation of s 60 is a modest one, but one which is important to preclude potential injustice. The Commissions’ view is that the change is consistent with the purpose behind s 60.[251]

10.158 One further question needs to be addressed: What is the status of unintended assertions? As explained in the earlier chapter on hearsay,[252] it may be misleading to reduce the reasoning in Lee to the proposition that s 60 precludes second-hand or more remote hearsay to be used as evidence of an admission. This is because the reasoning turns on the proposition that s 59 only applies to ‘intended’ assertions; if the assertion was not intended then it should not be classed as ‘hearsay’ within the meaning of the uniform Evidence Acts and so both ss 59 and 60 would be inapplicable. As explained earlier in the chapter dealing with hearsay, a deliberate policy decision was made in ALRC 26 to exclude unintended assertions from the meaning of ‘hearsay’ under the Acts, in part, because of the likely greater reliability of such assertions and for practical reasons.[253] The amendment now proposed would not alter the position in relation to unintended assertions which constitute second-hand or more remote hearsay evidence of an admission. The Commissions note that the provisions in Parts 3.4 and 3.11 of the Acts continue to apply to exclude or limit the use of evidence, where it would be unfair to the accused to allow such evidence to be adduced.

10.159 The Commissions therefore recommend amending s 82 of the uniform Evidence Acts in accordance with Recommendation 10–2 below.

Recommendation 10–2 To ensure that evidence of admissions in criminal proceedings that are not first-hand are excluded from the ambit of s 60, s 82 of the uniform Evidence Acts should be amended to provide that s 60 does not apply in a criminal proceeding to evidence of an admission.

10.160 While the Commissions believe that Recommendation 10–2 will assist in ensuring the reliability of evidence of admissions, there remains some limited scope for permitting more remote evidence to be admitted to prove an admission. Given the critical importance of ensuring the reliability of the evidence, a further amendment to s 82 which would allow s 60 to operate in respect of second-hand or more remote hearsay of admissions which are nevertheless deemed to be ‘reliable’. Such an amendment would need to be restricted to evidence that is prima facie reliable and its relative reliability must be capable of being readily assessed. For instance, if such an admission is video-recorded, in accordance with a regime like that in use for the recording of interviews of accused persons, it is likely to be reliable and its reliability can be more accurately assessed. This issue has not been the subject of any consultation and no recommendation is made. It is a matter for future consideration and the Commissions suggest that the Standing Committee of Attorneys General (SCAG) consider this further question and do so whether or not Recommendation 10–2 is implemented.






























































[232] For ease of reference for the purposes of this part of the chapter, such a statement will be referred to as ‘the contested statement’.

[233] This is essentially the position in Adam v The Queen (2001) 207 CLR 96. In S Odgers, Uniform Evidence Law (6th ed, 2004), [1.3.4880], it is noted that a statement of this nature ‘would not be protected by s 81 from the application of the hearsay rule’ but that ‘the exceptions to the hearsay rule in Div 3 of Pt 3.2 may apply to render such second-hand or more remote hearsay evidence admissible’.

[234] In the hypothetical example, there is a chain involving only three people: X tells something to Y who repeats it to Z. This makes Z’s evidence second-hand hearsay. However, it would make no difference to the application of s 60 if the hearsay were more remote than this; eg, if Z went on to tell A who gave evidence (third-hand hearsay), or if A went on to tell B who gave evidence (fourth-hand hearsay) etc.

[235]Lee v The Queen (1998) 195 CLR 594.

[236] Ibid, [29].

[237] S Odgers, Uniform Evidence Law (6th ed, 2004), [1.3.940].

[238]Lee v The Queen (1998) 195 CLR 594, [29].

[239] See Rec 7–2.

[240] See Ch 7.

[241] For which see, for example, Office of the Director of Public Prosecutions (ACT), Consultation, Canberra, 24 August 2005.

[242] J Spigelman, The Internet and the Right to a Fair Trial: Address by the Honourable JJ Spigelman AC, Chief Justice of New South Wales, to the 6th World Wide Common Law Judiciary Conference, Washington DC, 1 June 2005 (2005) <> at 24 November 2005.

[243] As with the earlier hypothetical example, this is second-hand hearsay. The situation is the same if the hearsay becomes more remote – ie, if Z repeats the statement to A, and so on.

[244] This problem was adverted to in Criminal Law Revision Committee England and Wales, Evidence (General), Report 11 (1972), [225] and in Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [678]. See also Lee v The Queen (1998) 195 CLR 594, [35].

[245] See, eg, McKinney v The Queen (1991) 171 CLR 468, 472; Carr v The Queen (1988) 165 CLR 314, 337–338. See also the discussion earlier in this chapter in relation to Kelly v The Queen (2004) 218 CLR 216.

[246]McKinney v The Queen (1991) 171 CLR 468, 476.

[247] Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [661]–[675]. See also Ch 7.

[248] Section 59 articulates the hearsay rule. See Ch 7 for a more detailed analysis of hearsay.

[249] This was recognised in the previous Evidence inquiry: Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [678]. It was also recognised by the High Court in Lee v The Queen (1998) 195 CLR 594, [35]. See also uniform Evidence Acts Part 3.2 Division 2. See the discussion in Ch 8.

[250] The Criminal Law Committee and the Litigation Law and Practice Committee of the Law Society of New South Wales, Submission E 103, 22 September 2005; Criminal Bar Association of Victoria, Submission E 114, 22 September 2005; J Gans, Submission E 59, 18 August 2005.

[251] See Ch 7.

[252] Ibid.

[253] Ibid; Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [684].