Contemporaneous statements about a person’s health etc

8.158 Section 72 of the uniform Evidence Acts provides an exception to the hearsay rule applying to certain contemporaneous statements. It states:

The hearsay rule does not apply to evidence of a representation made by a person that was a contemporaneous representation about the person’s health, feelings, sensations, intention, knowledge or state of mind.

8.159 In the previous Evidence inquiry, the ALRC did not recommend the inclusion of this provision in the uniform evidence legislation. The ALRC considered that such representations were covered adequately by confining the definition of ‘hearsay’ to evidence of facts the maker of a previous representation intended to assert by the representation and by the first-hand hearsay proposal.^[190]

8.160 Section 72 of the uniform Evidence Acts assumes that the contemporaneous representations covered by it are hearsay, by allowing their admission as an exception to the hearsay rule. At common law, many such representations are admissible either as original evidence or as hearsay admissible under the res gestae exception.^[191]

8.161 This provision has been criticised in several respects^[192] which will be considered in turn.

‘Belief’ and ‘memory’

8.162 It has been noted that if the words ‘intention, knowledge or state of mind’ include ‘belief’ or ‘memory’, the section may render the Act’s hearsay exclusionary rules generally inapplicable to contemporaneous statements.^[193]

8.163 To date courts have not interpreted s 72 so broadly.^[194] The potential absurdity of construing s 72 this way gives reason for not adopting a construction of that breadth.

8.164 The Acts appear to be operating satisfactorily in this regard. No submissions or consultations indicated support for amending s 72 in relation to this point.

Use of statement about health etc

8.165 It is unclear whether s 72 avoids the operation of the hearsay rule solely in respect of proving the ‘health, feelings, sensations, intention, knowledge or state of mind’ of the maker, or whether the evidence can be used for any other purpose.^[195] For instance, where evidence is admitted to prove that a victim was afraid of the accused (being a representation about a state of mind) does s 72 also allow the representation to be used to prove the occurrence of an event that created that state of mind, such as the making of a threat?

8.166 Section 72 contemplates that the health, feelings, sensations, intention, knowledge or state of mind of a person who made a previous representation will be facts in issue. The section allows representations identified in the section to be used as evidence of the person’s health, feelings and so on. Where the evidence is sought to be used for another purpose, it must be relevant for that purpose. That is, to be admissible for that other purpose, it must be that the evidence admitted under s 72 could rationally affect the assessment of the probability of the existence of a fact in issue.^[196] Provided the relevance requirement is made out, the evidence admitted under s 72 will be admissible as evidence of any fact in issue.

8.167 The Acts appear to be operating satisfactorily in this respect. No submissions or consultations indicated support for amending s 72 in relation to this point.

Evidence of a ‘representation’

8.168 The use of the term ‘representation’ in s 72 has been criticised. One commentator described the use of the expression ‘representation’ as a ‘serious drafting flaw in s 72’, pointing out that the purpose of s 72 is to exempt the inference about a person’s state of mind etc which arises from statements they make, rather than the representation which gives rise to the inference.^[197]

8.169 Since permissible inferences can generally be drawn only from admitted evidence, including real evidence,^[198] narrowing the language of s 72 in this way might not be practical. Further, s 72 is a statutory counterpart to the common law res gestae exception, under which evidence within the exception was admissible as evidence of its truth. The res gestae exception was not an exception applying only to inferences drawn from inadmissible hearsay. Section 72 shows no intention to take a different approach, and submissions and consultations do not indicate that s 72 currently works unsatisfactorily in this regard or has the potential to do so in future.

8.170 Again, the Acts appear to be operating satisfactorily in this respect. Accordingly, the Commissions recommend no change to s 72 in this regard.

Second-hand hearsay

8.171 The final criticism of s 72 is that it is not, by its terms, confined to first-hand hearsay as it refers only to ‘evidence’ rather than to representations made by a person who has personal knowledge of an asserted fact.^[199]

8.172 The Commissions agree with this criticism of s 72. It is difficult to justify applying s 72 to second-hand and more remote forms of hearsay. The exception in s 72 is only justifiable if there is reason to think the evidence is reliable. A reliability constraint would be provided by restricting the scope of the s 72 exception to first-hand hearsay. Cross-examination of the person who had personal knowledge of the fact asserted in the hearsay representation would allow the tribunal of fact to assess whether the evidence is reliable by considering what forensic weight to give the evidence. Without those reliability safeguards, however, evidence which is potentially highly unreliable may be admitted and would not necessarily be tested forensically.

8.173 While evidence admissible under s 72 as currently drafted is subject to the provisions of Part 3.11, the Commissions take the view that second-hand evidence is so inherently unreliable that it should not be admissible subject to exclusion or limitation, but should be inadmissible as a rule.

8.174 Submissions and consultations in response to DP 69 support the proposal to limit s 72 to first-hand hearsay.^[200] The Commissions recommend that s 72 be repealed and re-enacted in identical form in Division 2 of Part 3.2 of the uniform Evidence Acts (see Appendix 1). Section 62 (headed ‘Restriction to first-hand hearsay’) would apply to the re-enacted provision to achieve the desired limitation.