The meaning of ‘intention’

The United States approach

Rule 801

7.23 The distinction between intended and unintended assertions also arises in the United States. The framing of s 59 was influenced by the approach taken in the United States Federal Rules of Evidence.[26] Rule 801 of the Federal Rules of Evidence defines hearsay as:

a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

7.24 A ‘statement’ is defined as ‘(1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion’.[27] The definition of ‘statement’ is said to exclude from the operation of the hearsay rule all evidence of conduct, verbal or nonverbal, not intended as an assertion. The key to the definition is that nothing is an assertion unless intended to be one.[28]

Reasoning behind Rule 801

7.25 The commentary by the Advisory Committee on Rules[29] states, with respect to nonverbal conduct ‘offered as evidence that the person acted as he did because of his belief in the existence of the condition sought to be proved, from which belief the existence of the condition may be inferred’, that

while evidence of this character is untested with respect to the perception, memory, and narration (or their equivalents) of the actor, these dangers are minimal in the absence of an intent to assert and do not justify the loss of the evidence on hearsay grounds.[30]

7.26 Similar considerations are said to govern non-assertive verbal conduct,[31] and verbal conduct which is assertive, but offered as a basis for inferring something other than the matter asserted.[32] Such evidence is also excluded from the definition of hearsay.[33] It may be noted in passing that parallel reasoning was found by the ALRC to support a hearsay rule that only applied to intended assertions:

Evidence of conduct, including statements from which an implied assertion of a fact can be drawn, suffers from weaknesses similar to those which affect evidence of express assertions of fact—the dependence on the perception, memory and clarity and behaviour of the ‘asserter’ and the inability to test them by cross-examination of the ‘asserter’. It will not, however, suffer from dependence on the veracity of the asserter unless the asserter intended that the assertion be implied from his [or her] conduct. If the implied assertion is unintended, then it is unlikely that there was any deliberate attempt to mislead.[34]

Attitudes to Rule 801

7.27 The distinction made by the Federal Rules of Evidence between intended and unintended assertions has been criticised on the ground that the distinction results in the admission of unreliable communications. Requiring intent to be shown has been said to complicate the hearsay rule unnecessarily. It is said the distinction between intended and unintended communications has led to inconsistencies in its application to unintended implications of speech.[35]

7.28 On the other hand, those who favour an intent-based approach to implied assertions consider that hearsay risks are reduced greatly where statements intentionally asserting one thing are used to prove something else that the person was not trying to say. That is, the person is unlikely to have intended to mislead on matters that the person had no intention to communicate. An intent-based test also allows the hearsay rule to exclude exaggerated, metaphorical or sarcastic statements where these are offered to prove the truth of the implied and intended meaning.[36]

7.29 Most United States commentators are said to favour an ‘intent-based’ approach toward implied assertions.[37] The authors of the Federal Rules of Evidence Manual observe that an intent-based approach to implied assertions is not free from difficulty:

There is some indeterminacy in the application of any intent-based test … But any problem, we think, can be adequately handled by an objective, rather than subjective, test of intent. The question should be whether a reasonable person making a statement such as the declarant made would have intended to communicate the implied assertion that the proponent is offering for its truth. As with conduct, the burden should be placed on the nonoffering party to show that the declarant had the intent to communicate the implied assertion.[38]

Case law on Rule 801

7.30 There is much United States case law involving the distinction between intended and unintended assertions, including in situations comparable to that considered in R v Hannes,[39] discussed below. For example, one may contrast the outcomes in United States v Weeks[40] and United States v Berrios.[41]

7.31 In United States v Weeks, Weeks was charged with kidnapping and carrying a firearm during a crime of violence. The victims testified that their abductors used the names ‘Jimmy’ and ‘Gato’ in addressing each other. To establish that Weeks was ‘Gato’, the prosecution called a prison officer who testified that he had heard other prison officers and inmates refer to Weeks in the third person as ‘Gato’. The United States Court of Appeals for the Fifth Circuit held that evidence of these out of court statements was properly admitted. It was not shown that these persons were intending to communicate an implied assertion that Weeks was nicknamed ‘Gato’.[42]

7.32 In contrast, in United States v Berrios, the prosecution had proof that a man named ‘Pablo’ was a drug dealer, and sought to prove that the defendant went by that nickname. The defendant called a witness who would have testified that she was present at a drug deal with her husband, and that her husband introduced her to the seller, saying ‘This is Pablo’. The witness would have testified that the person introduced as ‘Pablo’ was not the defendant. The United States Court of Appeals for the First Circuit held that the out of court statement of the witness’ husband, ‘This is Pablo’, was properly excluded as hearsay.[43] This result can be justified on the basis that the intention of the husband was to assert to his wife that the person went by the name ‘Pablo’, and the evidence was adduced for the purpose of proving that fact.[44]

Conclusion on Rule 801

7.33 In the United States, the distinction between intended and unintended assertions has been codified in the Federal Evidence Code since 1975, and built on similar provisions in the California Evidence Code enacted in 1965. While the matter has not been free of controversy, a survey of the American case law and commentary leads the Commissions to the view that the United States provisions have operated satisfactorily and are conceptually sound.

The uniform Evidence Act approach

7.34 The quality of ‘intention’ necessary for an assertion to be ‘intended’ under s 59 was considered by the New South Wales Court of Criminal Appeal in R v Hannes.[45]

7.35 The court considered the application of s 59 to a written impression on the appellant’s notebook, which read: ‘Am confident I have full story after my conversations with Mark in London; But must take Mark with me to Australian Securities Commission otherwise will not be believed’. The appellant (accused) submitted, among other things, that the note should be admitted as an implied assertion that a person called Mark Booth existed and that the appellant had met him in connection with the relevant events. The prosecution’s case was that Hannes had done acts for which he was criminally liable while using the name Mark Booth, and that Mark Booth was a fiction.

Judgment of Spigelman CJ

7.36 Spigelman CJ observed that, if the word ‘intended’ in s 59 requires ‘some form of specific conscious advertence’ on the part of the person making the representation, ‘then very few of the implied assertions considered in the case law and legal literature’ prior to ALRC 26 would be included.[46] That is because matters left to implication are generally inconsistent with ‘intent’ in the sense of ‘specific conscious advertence’.[47] He added that nothing in ALRC 26 or the text of the Evidence Act 1995 (NSW) suggests that parliament or the ALRC only intended s 59 to exclude evidence of previous representations to which the representor had specifically and consciously adverted.[48]

7.37 Hence, Spigelman CJ thought evidence of previous representations to which the representor specifically and consciously adverted would be excluded by s 59, but that s 59 also excluded evidence of other assertions. He said it is arguable that the scope of the word ‘intended’ in s 59(1) ‘goes beyond the specific fact subjectively adverted to by the author as being asserted by the words used’ and that ‘[i]t may encompass any fact which is a necessary assumption underlying the fact that the assertor does subjectively advert to’.[49]

7.38 Support for this view was drawn from Pollitt v The Queen,[50] where McHugh J said:

The objection to hearsay evidence is that it is unreliable—the declarant is not subject to cross-examination and his or her truthfulness and powers of memory, recall, perception and narration cannot be tested. Because the reliability of an implied assertion is dependent upon the material expressly stated, the grounds for excluding express assertions are equally applicable to implied assertions. Consequently, for the purpose of the hearsay rule, implied as well as express assertions are regarded as ‘contained’ in an out-of-court statement.[51]

7.39 On this basis, Spigelman CJ reasoned that

an implied assertion of a fact necessarily assumed in an intended express assertion, may be said to be ‘contained’ within that intention. For much the same reasons, it is often said that a person intends the natural consequences of his or her acts.[52]

Judgment of Studdert J

7.40 Studdert J seemed to maintain that ‘specific conscious advertence’ would be presumed:

Prima facie, the [defendant] intended to write what appears in [the document] at the time he wrote it. Absent evidence to the contrary, it could not be inferred that the [defendant] did not intend to assert by what he wrote the very matters which the [defendant] contends emerged from a reading of the document.[53]

7.41 Studdert J’s approach would often produce similar outcomes to Spigelman CJ’s approach, but has a different focus. Like Spigelman CJ’s approach it envisages that a person will be taken to intend to assert a fact even though he or she never specifically or consciously adverted to the fact provided an intention to assert a fact ‘emerges from a reading of the document’. Dowd J preferred Spigelman CJ’s approach.[54]

Effect of Hannes

7.42 Applying either approach, it appears that the imprint in Hannes would be read as intending to assert the existence of a person called Mark, and would therefore be excluded as hearsay under s 59(1). Spigelman CJ said this ‘may well’ be the case;[55] Studdert J said it was the case.[56] It was not necessary to decide the question because it was held that the evidence failed the relevance test in s 55.[57]

7.43 On one view, Spigelman CJ’s approach has no limitations. For if ‘intention’ for the purposes of s 59 means ‘any fact which is a necessary assumption underlying the fact that the assertor … subjectively advert[s] to’,[58] a person making a simple representation in the form of an oral communication would be taken to intend to assert a very large number of facts. This is because the necessary assumptions of a simple oral representation include:

  • that the assumption is capable of being understood;
  • that other persons exist who have knowledge of the linguistic, social and other ‘public conventions’[59] relied on by the representor in making the oral assertion; and
  • that consequences will follow from breach of those norms, whatever those consequences may be.[60]

7.44 Although these assumptions fall within Spigelman CJ’s test, it is undesirable to apply s 59 to them. As the Commissions noted in DP 69, adoption of the view could cause considerable practical difficulties.[61]

7.45 Practical outcomes aside, Spigelman CJ’s reasoning is problematic. As noted above, his Honour said ‘an implied assertion of a fact necessarily assumed in an intended express assertion, may be said to be “contained” within that intention’.[62] By this, his Honour appears to have meant that, where an implied assertion is necessarily assumed in an express assertion, intention to make the implied assertion is ‘contained’ within the intention to make the express assertion. Accordingly, s 59 would necessarily apply to express and to intended and unintended implied assertions.

7.46 This interpretation gives rise to difficulties.

  • The passage of McHugh J’s judgment in Pollitt v The Queen cited by the Chief Justice represents a wide but not uniformly accepted view of the admissibility of evidence of implied assertions under the common law hearsay rule. There were also narrower approaches.[63]
  • The ALRC chose not to follow any of the approaches to implied assertions available at common law—some of which excluded implied assertions as hearsay, and some of which did not.[64] It is questionable whether reliance on any of the common law approaches is possible under s 59, which distinguishes between intended and unintended assertions, not express and implied assertions.[65] The distinction adopted between intended and unintended assertions has been described above.[66]

7.47 Spigelman CJ said his approach to the meaning of ‘intention’ in s 59 was based on ‘much the same reasons’ as the proposition ‘that a person intends the natural consequences of his or her acts’. A maxim or presumption to this effect is sometimes used to impose criminal liability in the United Kingdom.[67] However, in Parker v The Queen, the High Court of Australia said the introduction of a maxim or statement of this kind is ‘seldom helpful and always dangerous’.[68]

7.48 The Commissions observe that, on the United States’ position stated above, the notes in Hannes could be viewed as not containing an intended implied assertion that ‘Mark’ existed and was involved in the events of interest in the case. If so, the representations in the notes would not be hearsay if offered as proof of these facts. However, the prosecution could then raise the possibility of fabrication to support a contrary inference. Whether the assertion was intended would depend on the particular facts, including the surrounding circumstances.

Critical response to Hannes

7.49 Stephen Odgers SC considers that the approach suggested by Spigelman CJ should not be adopted. He states that the concern expressed by Spigelman CJ (about an overly restrictive interpretation of an ‘intended’ assertion) is ‘somewhat misplaced’ given that, in these circumstances, the party arguing for admission of the evidence as evidence not excluded by s 59 would have to satisfy the court that the representation was not intended to assert the existence of a fact. This view finds support in Studdert J’s reasoning. Odgers also contends that there is no reason to believe the ALRC envisaged ‘intention’ meaning anything other than ‘specific conscious advertence’ for the purposes of s 59. [69]

7.50 On the other hand, Gans and Palmer state that the wider meaning of the word ‘intended’ adopted by Spigelman CJ is ‘a desirable way of achieving s 59(1)’s continuing rationale of ensuring that the fact-finder is not exposed to the risk of deliberate deception without the assistance of the trial’s processes for assessing witnesses’.[70] This relies on a view that s 59 is designed not only to ensure that fact-finders are assisted in detecting intentional deception, but also to ensuring the availability of trial processes such as cross-examination to resolve the possibility of ambiguity or mistake.

Amendment of s 59?

7.51 The question was asked in IP 28 whether concerns are raised by the application of s 59 of the uniform Evidence Acts to previous representations containing implied assertions and whether any such concerns should be addressed through amendment of the uniform Evidence Acts—for example, to clarify the meaning of ‘intended’ in relation to implied assertions.[71]

7.52 In DP 69, the Commissions proposed that s 59 should be amended to provide that

in determining whether a person intended to assert the existence of facts contained in a previous representation, the test to be applied should be based on what a person in the position of the maker of the representation can reasonably be supposed to have intended; and the court may take into account the circumstances in which the representation was made.[72]

The Commissions also discussed whether ‘intention’ in s 59 should mean the subjective intention of the person who made the representation out of court.

Submissions and consultations on DP 69

7.53 Two submissions propose that no amendment of s 59 be made. The New South Wales Public Defenders Office opposes the amendment of s 59 on the basis that the proposed amendment replaces a simple test with a similar but much more complicated test.[73] Similarly, the Law Society of New South Wales considers that a case has not been made for amendment of s 59 to provide expressly for a test of intention as proposed.[74]

7.54 Other submissions favour amending s 59 to broaden the hearsay rule to apply to both express and implied assertions, thereby abandoning the distinction drawn in s 59 between intended and unintended assertions.[75] Support also exists for an amendment expressly to provide that s 59 covers the extended meaning given to the word ‘intention’ by Spigelman CJ in Hannes.[76]

7.55 However, Proposal 7–1 did receive substantial support.[77] One senior practitioner suggests that there is no way intention can be determined other than by the test proposed in DP 69.[78] Although submissions and consultations did not always articulate their support for Proposal 7–1 in such clear terms, the sentiment in this senior practitioner’s response was widely reflected.

The Commissions’ view

7.56 A detailed study of the various approaches to hearsay taken at common law was undertaken by the ALRC in its previous Evidence inquiry. An approach raised as a possibility for adoption in the uniform Evidence Acts was that the hearsay rule should be defined to exclude evidence of all express and implied assertions made out of court. The proposal was ultimately rejected. The ALRC said:

To make unintended implied assertions subject to a hearsay rule and its exceptions could give rise to considerable practical difficulties. Every piece of human conduct is an assertion of something, even if it is only an assertion by the actor that he [or she] intends to perform the action that he [or she] engaged in. In many cases, evidence of intention or state of mind is not direct. The intent or state of mind is inferred or implied from the conduct engaged in by a person. From that conduct the inference is drawn that the person intended to do the act complained of. The result of including unintended implied assertions in the definition may, therefore, be that the hearsay proposal would embrace evidence of relevant acts, however detailed and complicated they may be, because it is sought to tender such evidence to prove, inter alia, the intent or state of mind of a relevant person. Depending on the proposed exceptions and procedures, trials could be seriously disrupted and much evidence excluded.[79]

7.57 While the Commissions are of the view that the ALRC’s reasoning remains valid, the concerns that have been raised, particularly in R v Hannes, indicate a need for the uniform Evidence Acts to give more guidance on the definition of hearsay evidence.

7.58 Amendment of s 59 to exclude all express and implied assertions, thereby discarding the distinction drawn in s 59 between intended and unintended assertions, is not the answer. The defined rule in s 59 is a significant improvement on the uncertainty surrounding the common law rule, the scope of which is disputed.

7.59 Until recent and significant statutory changes were made to the hearsay rule in the United Kingdom,[80] debate continued about whether implied assertions are excluded as hearsay at common law. The outcome of that debate was the conclusion that ‘the presence of an intention to assert provides the most defensible watershed between hearsay and non-hearsay both as a matter of logical coherence and of practical commonsense’[81]—the basis upon which s 59 rests. A return to the distinction between express and implied assertions would result in adoption of what was recognised in the United Kingdom as an indefensible distinction.

The meaning of ‘intention’ should be clarified

7.60 It is important that there be a definition of hearsay evidence and that it be the most appropriate that can be devised. An issue of concern is that the practical outcomes of defining ‘intention’ along the lines discussed in Hannes could cause disruption if adopted. Those outcomes should be avoided by giving further definition to ‘intention’ in s 59.

7.61 The test proposed by the Commissions in DP 69[82] is external to the maker of the representation. It proceeds on the basis that ‘intention may properly be inferred from the external and objective manifestations normally taken to signify intention’.[83] Intent or state of mind is inferred from the conduct engaged in by a person.[84] Investigation into the subjective mindset of the representor is not required. A subjective approach requires the party opposing a finding that a fact was subjectively intended to be asserted to do battle with the intangible shadows of subjective intentions, to use Deane J’s metaphor.[85] Proof of a subjective state of mind is very difficult,[86] particularly if the maker of the representation is not called to give evidence.

7.62 The prospect of courts adopting a different approach to ‘intention’, such as the approaches explored in Hannes, should be foreclosed. Given the difficulties that would follow from adoption of a different approach and the substantial support for an amendment in the form of Proposal 7–1, the Commissions recommend that the uniform Evidence Acts be amended. The recommended provision is set out in Appendix 1.

Recommendation 7–1 The uniform Evidence Acts should be amended to provide expressly that, for the purposes of s 59, in determining whether a person intended to assert the existence of facts contained in a previous representation, the test to be applied should be based on what a person in the position of the maker of the representation can reasonably be supposed to have intended; and the court may take into account the circumstances in which the representation was made.

[26] Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [684]; S Odgers, Uniform Evidence Law (6th ed, 2004), [1.3.800], fn 77.

[27]Federal Rules of Evidence (US), r 801.

[28] Advisory Committee on Rules, Notes to Rule 801 of the Federal Rules of Evidence (2004) Legal Information Institute <www.law.cornell.edu/rules/fre/ACRule801.htm> at 22 November 2005.

[29] The Advisory Committee on Rules is a committee of the United States Judicial Conference’s Committee on Rules of Practice and Procedure. The Judicial Conference approves rules of practice, procedure, and evidence for the federal courts, which are then prescribed by the Supreme Court and subject to Congressional review: L Mecham, The Rulemaking Process: A Summary for the Bench and Bar (2004) UC Courts <http://www.uscourts.gov/rules/proceduresum.htm> at 22 November 2005.

[30] Advisory Committee on Rules, Notes to Rule 801 of the Federal Rules of Evidence (2004) Legal Information Institute <www.law.cornell.edu/rules/fre/ACRule801.htm> at 22 November 2005.

[31] See, eg, the use of nicknames in United States v Weeks 919 F2d 248 (5th Circuit, 1990), discussed below.

[32] Advisory Committee on Rules, Notes to Rule 801 of the Federal Rules of Evidence (2004) Legal Information Institute <www.law.cornell.edu/rules/fre/ACRule801.htm> at 22 November 2005.

[33] Rule 801 is said to place the burden upon the party claiming that the intention existed, with ambiguous and doubtful cases to be resolved in favour of admissibility: Ibid. Another view is that the Advisory Committee’s assertion is not supported by the wording of Rule 801 and that the party arguing for admission should have to show that the statement is not hearsay as the witness did not intend the statement to substitute for an assertion. This latter position appears to be the case under the California Evidence Code: see M Mendez, Comparison of Evidence Code with Federal Rules: Part I. Hearsay and its Exceptions (2002) California Law Revision Commission <www.clrc.ca.gov/pub/2002/MM02-41.pdf> at 22 November 2005.

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

[35] See, eg, P Rice, The Evidence Project: Proposed Revisions to the Federal Rules of Evidence American University (2005) American University <www.wcl.american.edu/pub/journals/evidence> at 22 November 2005.

[36] S Saltzburg, M Martin and D Capra, Federal Rules of Evidence Manual (2004), [801.02].

[37] Ibid, [801.02], fn 20. See also G Weissenberger, ‘Unintended Implications of Speech and the Definition of Hearsay’ (1992) 65 Temple Law Review 857.

[38] S Saltzburg, M Martin and D Capra, Federal Rules of Evidence Manual (2004), [801.02].

[39]R v Hannes (2000) 158 FLR 359.

[40]United States v Weeks 919 F2d 248 (5th Circuit, 1990).

[41]United States v Berrios 132 F3d 834 (1st Circuit, 1998).

[42]United States v Weeks 919 F2d 248 (5th Circuit, 1990), 252.

[43]United States v Berrios 132 F3d 834 (1st Circuit, 1998), 838.

[44] S Saltzburg, M Martin and D Capra, Federal Rules of Evidence Manual (2004), [801.02].

[45]R v Hannes (2000) 158 FLR 359.

[46] The reason ALRC 26 was taken as a reference point is presumably that the ALRC’s report reviewed the existing case law on implied assertions and provisionally recommended enactment of statutory provisions in the form that fell to be construed in Hannes.

[47]R v Hannes (2000) 158 FLR 359, [359].

[48] Ibid, [360].

[49] Ibid, [361].

[50]Pollitt v The Queen (1992) 174 CLR 558.

[51] Ibid, 620, citing Wright v Doe d Tatham (1837) 7 Ad & E 313; 32 ER 488; R v Blastland [1986] AC 41; Walton v The Queen (1989) 166 CLR 283, 292; R v Benz (1989) 168 CLR 110, 143; R v Kearley [1992] 2 AC 228.

[52]R v Hannes (2000) 158 FLR 359, [357]. Dowd J agreed with the reasoning of Spigelman CJ and the reasoning of Studdert J except in so far as Studdert J disagreed with the Chief Justice about the document in question.

[53] Ibid, [477].

[54] Ibid, [485].

[55] Ibid, [355].

[56] Ibid, [478].

[57] Ibid, [337], [474].

[58] Ibid, [361].

[59] See S Guest, ‘The Scope of the Hearsay Rule’ (1985) 101 Law Quarterly Review 385, 389–390.

[60] See also Ibid, 389–390 as to what is a ‘statement’ for the purposes of the common law hearsay rule.

[61] Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005), [7.47]. Further, if this range of matters is taken to be asserted, s 60 has extremely wide potential application. This would also be the case under Studdert J’s approach to s 59. Contrast the narrow approach to s 60 taken by the High Court in Lee v The Queen (1998) 195 CLR 594.

[62] R v Hannes (2000) 158 FLR 359, [357].

[63] R Cross, ‘The Scope of the Rule Against Hearsay’ (1956) 72 Law Quarterly Review 91; M Weinberg, ‘Implied Assertions and the Scope of the Hearsay Rule’ (1973) 9 Melbourne University Law Review 268; S Guest, ‘The Scope of the Hearsay Rule’ (1985) 101 Law Quarterly Review 385; S Guest, ‘Hearsay Revisited’ (1988) 41 Current Legal Problems 33; A Rein, ‘The Scope of Hearsay’ (1994) 110 Law Quarterly Review 431; J Heydon, Cross on Evidence (7th ed, 2004), [31035]–[31070].

[64] Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [684]; Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 2 (1985), [78].

[65] Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [682] says: ‘The approach taken in the proposals is to develop a new and comprehensive set of exceptions’ (emphasis added). Contrast R v Ung (2000) 173 ALR 287, [46]–[53].

[66] See also Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005), [7.46]; Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [684].

[67]Director of Public Prosecutions v Smith [1961] AC 290, 327–8.

[68]Parker v The Queen (1963) 111 CLR 610, 632, citing Stapleton v The Queen (1952) 86 CLR 358, 365. For that reason, the court refused to follow a House of Lords authority for the first time since the creation of the High Court in 1903: see W Gummow, ‘The High Court of Australia and the House of Lords 1903–2003’ in G Doeker-Mach and K Ziegert (eds), Law, Legal Culture and Politics in the Twenty First Century (2004) 43, 44–5; T Blackshield, ‘Parker v The Queen’ in T Blackshield, M Coper and G Williams (eds), The Oxford Companion to the High Court of Australia (2001) 523.

[69] S Odgers, Uniform Evidence Law (6th ed, 2004), [1.3.800].

[70] J Gans and A Palmer, Australian Principles of Evidence (2nd ed, 2004), 177.

[71] Australian Law Reform Commission, Review of the Evidence Act 1995, IP 28 (2004), Q 5–1.

[72] Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005), Proposal 7–1.

[73] New South Wales Public Defenders Office, Submission E 89, 19 September 2005. See also Judicial Officer of the Federal Court of Australia, Consultation, Melbourne, 18 August 2005.

[74] 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.

[75] Law Council of Australia, Submission E 32, 4 March 2005; P Greenwood, Consultation, Sydney, 11 March 2005; K Arenson, Submission E 67, 13 September 2005; Judicial Officers of the Federal Court of Australia, Consultation, Melbourne, 18 August 2005.

[76] Director of Public Prosecutions (NSW), Submission E 17, 15 February 2005; Judicial Officers of the Federal Court of Australia, Consultation, Melbourne, 18 August 2005; J Gans, Consultation, Melbourne, 17 August 2005.

[77] Australian Federal Police, Submission E 92, 20 September 2005; Commonwealth Director of Public Prosecutions, Submission E 108, 16 September 2005; Director of Public Prosecutions (NSW), Submission E 17, 15 February 2005; Victoria Police, Submission E 111, 30 September 2005; Confidential, Consultation, Sydney, 27 July 2005; Confidential, Consultation, Brisbane, 9 August 2005; Judicial Officers of the Federal Court of Australia, Consultation, Melbourne, 18 August 2005; A Cossins, Consultation, Sydney, 3 August 2005.

[78] Confidential, Consultation, Brisbane, 9 August 2005.

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

[80]Civil Evidence Act 1995 (UK) s 1; Criminal Justice Act 2003 (UK) s 118(2). See C Tapper, Cross and Tapper on Evidence (10th ed, 2004), 615–618, 633–699.

[81] C Tapper, Cross and Tapper on Evidence (8th ed, 1995), 573; S Guest, ‘Hearsay Revisited’ (1988) 41 Current Legal Problems 33, 38–39; C Tapper, ‘Hillmon Rediscovered and Lord St Leonards Resurrected’ (1990) 106 Law Quarterly Review 441, 452–453 (cited approvingly Kamleh v The Queen (2005) 79 ALJR 541, [38]). More qualified acceptance of the view is extended by A Rein, ‘The Scope of Hearsay’ (1994) 110 Law Quarterly Review 431, 438. See M Aronson, ‘Goodbye Hearsay: Hello Relevance—Subjective Statements under Section 48 of the New South Wales Evidence Bill 1991’ (1991) 65 Australian Law Journal 596, 598.

[82] Proposal 7–1.

[83] C Tapper, Cross and Tapper on Evidence (8th ed, 1995), 573.

[84] Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [684]. See also fn 30 and accompanying text.

[85]Walton v The Queen (1989) 166 CLR 283, 307.

[86] E Seligman, ‘An Exception to the Hearsay Rule’ (1912) 26 Harvard Law Review 146, 148–149; A Choo, Hearsay and Confrontation in Criminal Trials (1996), 99.