Unintended assertions

The significance of ‘intention’

7.19 Focusing on the terms of s 59, the uniform Evidence Acts exclude, as hearsay, evidence of a representation that is sought to be adduced to prove a fact that a person intended to assert by the representation. The term ‘representation’ is defined to include ‘an express or implied representation’, as well as unintended and uncommunicated representations, and representations to be inferred from conduct.[19]

7.20 The reliance by s 59 on the distinction between intended and unintended assertions must be understood against the common law background. Before the enactment of the uniform Evidence Acts there were (and, in Australian jurisdictions not operating under the Acts, there still are) irreconcilable authorities and commentary as to whether implied representations of different kinds fell within the hearsay rule.[20] The ALRC stated that its proposed formulation of the hearsay rule was meant to resolve the issue of whether the hearsay rule should apply to implied (as well as express) representations by recommending that a different distinction be drawn: that is, between intended and unintended assertions, with the latter outside any hearsay rule.[21]

7.21 By placing unintended assertions outside the proposed hearsay rule, the ALRC envisaged that evidence of unintended assertions could be admissible as evidence of the truth of those assertions.[22] For example, on the facts of Walton v The Queen,[23] evidence that the child answered the telephone ‘Hello Daddy’ would generally not be hearsay as defined in s 59 when used to prove the identity of the caller, because it is unlikely the child would intend to assert the identity of the caller.[24] By contrast, at common law, the statement was held by the High Court in Walton v The Queen to be hearsay and therefore inadmissible as evidence of the identity of the caller.[25]

7.22 Given the terms of the hearsay rule in s 59 and its exceptions, as well as the policy underpinnings of the ALRC’s approach as adopted by the parliaments of the uniform Evidence Act jurisdictions, much turns on the meaning of ‘intention’, particularly as that term operates in s 59.

[19]Evidence Act 1995 (Cth) Dictionary, Pt 1; Evidence Act 1995 (NSW) Dictionary, Pt 1; Evidence Act 2004 (NI) Dictionary, Pt 1; Evidence Act 2001 (Tas) s 3.

[20] See J Heydon, Cross on Evidence (7th ed, 2004), [31035]–[31070] and the citations in [31035] fn 50.

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

[22] Ibid, [684].

[23]Walton v The Queen (1989) 166 CLR 283.

[24] 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, 601–602, 605.

[25] However, the statement was able to be used as circumstantial evidence from which an inference could be drawn that the caller was the accused. Possible difficulties with this approach are discussed in: C Tapper, ‘Hillmon Rediscovered and Lord St Leonards Resurrected’ (1990) 106 Law Quarterly Review 441.