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New Exceptions or Principled Determinations: The Unreliable Response of the Australian High Court to Reform of the Hearsay Rule

Author: Rebecca Collins BA (Hons), PhD
University of Western Australia School of Law
Issue: Volume 10, Number 4 (December 2003)

Contents:

    Introduction

  1. In Australia, the general dissatisfaction with the operation of the traditional hearsay rule is arguably matched only by the dissatisfaction created by current judicial responses to reform of the rule. In contrast, most other common law jurisdictions have now adopted a definite position on the judicial role in reforming the rule against hearsay. The UK and Canadian approaches mark out the two most extreme responses to the issue. In what has been criticised as "perhaps the most obstructive decision in the field of hearsay"[1] the House of Lords took the firm stance that any reform of the hearsay rule would need to come from the legislature.[2]

  2. However in the Canadian landmark case of R v Khan[3] the Supreme Court of Canada adopted a flexible approach to the hearsay rule.[4] The US approach is closely aligned with the Canadian approach, though with some variations.[5]

  3. Similarly recent New Zealand decisions accord with the Canadian approach. In the case of Manase v R [6] the New Zealand Court of Appeal formulated a new general residual exception to the hearsay rule based on the criteria of relevance, inability and reliability.[7]

  4. Amidst this repositioning by the various common law jurisdictions on the issue of judicial reform of the hearsay rule, the Australian position is both ambiguous and substantially undetermined. In this paper both the reliability exception and telephone exception will be examined and their judicial support determined. I will argue that there is clear support in the High Court for 'a' telephone exception but that currently its scope remains underdetermined. Finally I claim that the Australian schizophrenic approach to judicial reform of the hearsay rule may be partially excused by reason of the enactment of the Evidence Act 1995 (Cth). When this Act is uniformly adopted by all the States, it is clear that the Australian approach will closely correspond to the approach in most other common law jurisdictions.

    The Inherent Reliability Exception

  5. Walton v R[8] marks the emergence of the High Court debate on the prospects for judicial reform of the hearsay rule. The inherent reliability exception was first articulated by Mason CJ (as he was then) in this case.[9] There are several points to note about this exception. Firstly, it is formulated as a discretion rather than a criterion-based categorical exception. It is expressed in terms of weighing up the competing factors of reliability (such as spontaneity, non-concoction) against various dangers (such as the lack of cross examination, motive for fabrication). The legal significance of the exception's characterisation as a discretion is that it would be much more difficult for appellate courts to overturn a decision regarding an issue of admissibility.[10]

  6. Although Palmer has argued for its characterisation as an exception, there is clear textual evidence which suggests the contrary.[11] Secondly, the exception is based upon an extension of the Ratten[12] determinant of the res gestae exception, namely spontaneity, to all evidence whether part of the main transaction or not.[13] For Mason CJ, spontaneity forms the basis of the reliability exception. This singular focus has been extensively criticised.[14] Indeed the Canadian approach to hearsay evidence, which is generally regarded as being the most flexible approach, is guided by the twin criteria of necessity and reliability. Furthermore, Palmer highlights the fact that spontaneity as a general determinant is inadequate, as it does not guard against the possibility of mistake.[15]

  7. However it may be objected that such criticisms fail to pay due regard to the balancing act Mason CJ proposes. On this view, spontaneity is to be considered as merely one of the factors, albeit a very important factor, indicative of reliability. Unfortunately such an argument loses force when consideration is given to some of the actual decisions made on this point by Mason CJ. In Walton v R, the child's statement 'Hello Daddy' on the phone was considered inherently reliable despite the mother having passed the phone to the child with the information that "Daddy is on the phone".[16]

  8. In Benz v R,[17] Mason CJ considered that the circumstances of a woman caught by surprise after participating in a murder were such as to warrant her statement to a stranger as reliable. Yet surely, the situation of being quite literally 'caught' by surprise would tend to increase the probability of concoction given the declarant's obvious motive for avoiding detection or suspicion.[18] Finally in Pollitt v R[19] Mason CJ found Allen's statements to be inherently reliable despite his criminal character and participation in a criminal venture at the time the statements were made. Each of these factual determinations suggests that Mason CJ's balancing requirement does not add much to the criterion of spontaneity.

  9. The inherent reliability exception was rejected in the joint judgment of Wilson, Dawson and Toohey in Walton who reaffirmed Barwick CJ's approach in Vocisano v Vocisano.[20] However the exception was supported by Gaudron and McHugh JJ in the later case of Benz v R.[21]

  10. It was not until Pollitt that most of the justices expressed their views on the exception. Mason CJ reiterated his support for the adoption of an inherent reliability exception, however this time he used reliability as the criterion of a particular exception, namely the telephone exception.[22] McHugh J supported Mason's inherent reliability exception to the extent that he reaffirmed what he had said in Benz about the need to admit hearsay evidence "when it appears to have a high degree of reliability". Deane J also supported a flexible approach to the hearsay rule.[23] Toohey J's judgment is ambiguous. On the one hand he clearly rejects the notion that spontaneity is sufficient of itself to render a hearsay statement admissible.[24] Yet simultaneously he registers his support for a flexible approach to the hearsay rule and proceeds to consider those factors which contribute to the reliability of statements. However Toohey J's view does not seem to support an inherent reliability exception as such but rather a general reliability principle guiding the development of new categories. In contrast, Brennan J explicitly rejected the flexible approach to the hearsay rule in a passage reminiscent of Lord Reid in Myers.[25] He further rejects Mason CJ's proposed reliability exception in no uncertain terms.[26] Therefore the decision in Pollitt suggests that there is no majority support for Mason's inherent reliability exception as a particular exception based on spontaneity and non-concoction. However there does appear to be majority support[27] for the reliability exception as a broad guiding principle in the development of new categories of exceptions.

  11. In the same way that Walton v R marked the emergence of the debate on a new approach to hearsay evidence, Bannon v R[28] may be considered as the dusk of the debate. Once again Brennan CJ forcefully asserted his rejection of both a flexible approach to the hearsay rule and the inherent reliability exception.[29] McHugh J crossed the floor in this case.[30] Evidently influenced by the then recent legislative reform in the area, he expressed reluctance to support any new changes to the rule against hearsay. Although Dawson, Toohey and Gummow JJ found it unnecessary to decide whether a new exception should be created for third party confessions against penal interest, to the extent that they considered the issue in terms of a specific exception as opposed to a principle-based approach to hearsay evidence, it can be inferred that the reliability exception even as a broad guiding principle has now lost favour in the High Court. Recent confirmation of this conclusion has been given in Papakosmas v R[31] by Kirby and Gaudron JJ who stated that no exceptions to the hearsay rule have been admitted to the common law since the Myers decision.[32] Therefore at present the weight and indeed trend of authority appears to be against the recognition of an inherent reliability exception whether as a principle or a categorical exception.

  12. There appears to be support for Mason CJ's inherent reliability exception at the trial and intermediate courts.[33] Although the exception was referred to in several WA decisions,[34] it was not until the case of Button v R[35] that support for the inherent reliability exception was expressed. Malcolm CJ admitted certain confessional statements on the ground of reliability. Wallworth J explicitly endorsed the Mason CJ's formulation of the inherent reliability exception as stated in Walton v R..[36] Consequently there is strong support for the recognition of the inherent reliability exception in WA,[37] and it is submitted that until a contrary decision by the High Court, the courts in WA are likely to recognise such an exception.

    Telephone Exception

  13. Unlike the inherent reliability exception, the telephone exception is clearly formulated as a non-discretionary category of exception. Deane J's judgment in Walton is the source of the exception.[38] The rationale for the exception is that statements identifying the other party to the telephone conversation possess a minimal risk of fabrication and are generally of high probative value.[39] It is the combination of the qualities of spontaneity and non-assertiveness which create a strong presumption of reliability.[40] This exception is directed at those statements made during the course of a telephone conversation which are overheard by a person in proximity of the party speaking on the telephone, as opposed to statements made by one party to the telephone conversation to the other party.

  14. The most significant limitation on the scope of the exception is that it only extends to statements which identify the other party to the telephone conversation. It is not a general 'catch-all' exception for any statement overheard in a telephone conversation merely because they were made through the medium of a telephone.[41] However this limitation has been further qualified in various ways. Deane J has stated that the exception should only be available when there is no significant possibility of fabrication.[42] More specifically McHugh limited the exception to ordinary social and business calls, and excluded conversations made in pursuance of a criminal venture.[43] Similarly Toohey J appears to conclude that identifications made in the course of conversations furthering criminal purposes should be excluded.[44] Toohey J also sought to limit the exception to those statements made during the course of a telephone conversation. However there is strong support for its extension to statements made immediately after the call.[45]

  15. The telephone exception has been the subject of various criticisms. First, it is argued that although assertions which identify the other party to the call are usually implied, this does not negate the possibilities of insincerity and mistake.[46] Secondly, Roberts has highlighted the apparent arbitrariness of the telephone exception by comparing the admissibility of an identificatory remark made over the phone with the inadmissibility of an identificatory remark made at the doorstep in circumstances where the witness overhears the identificatory remark.[47]

  16. However this is better viewed not as a problem with the telephone exception as such but rather a consequence of the court's lack of judicial reform in this area. If anything, Robert's hypothetical points out the need for developing new exceptions as categories arise. Thirdly, it is argued that the exception is likely to be of little significance as it will not assist in the admission of the actual contents of the telephone conversation.[48] Although this is strictly true, it will often have the significant effect of enabling an inference to be drawn.[49] Finally, Roberts argues that the telephone exception will be of no assistance to the drug cases such as R v Firman.[50] However this is unlikely to be a problem in Australia as it has been recognised at least in SA courts that such calls are admissible as original evidence of the existence of a business or activity of selling drugs.[51]

  17. The telephone exception was last discussed by the High Court in Pollitt. Mason CJ, Deane and McHugh JJ were in clear support of such an exception while Brennan, Gaudron and Dawson JJ declined to consider the issue.[52] The deciding judgment therefore was that delivered by Toohey J. Although at the end of his judgment he indicated that the scope of the telephone exception remains to be determined,[53] his recognition that reactive remarks made over the telephone should be admissible for the purpose of identification would seem to provide majority support for the telephone exception.[54]

  18. There is majority support at least for the view that the telephone exception is available for statements identificatory of the other party to the call made during the course of an ordinary social or business call which are overheard by a third party.[55]

    Impact of the Evidence Act 1995 (Cth)

  19. The Evidence Act 1995 (Cth) has significantly reformed the law on hearsay evidence and has arguably brought those Australian jurisdictions, in which it has been enacted, in alignment with the approach now favoured by most common law jurisdictions. The Act takes a flexible approach to the rule against hearsay but has established various procedural safeguards to protect the party against whom the evidence is to be led.[56]

  20. Mason CJ's proposal for a inherent reliability exception is made law through s 65(2)(c), although in a modified form.[57] It is limited to first-hand hearsay sought to be led in criminal proceedings where the declarant is unavailable and "made in circumstances that make it highly probable that the representation is reliable". There is some dispute over what circumstances are to be taken into account in assessing the reliability of the representation. However Ogders has argued that the better view is that the court should consider the circumstances of other events and not just the factual setting of when the statement was made.[58]

  21. The telephone exception is given partial effect in the Act through the definition of hearsay in s 59(1). This section excludes all unintended assertions from the ambit of the hearsay rule. Although unintended assertions are not strictly coextensive with implied assertions,[59] identificatory remarks made over the phone would generally be considered as unintended assertions. Furthermore it is likely that, under the Act, non-identificatory statements made during the course of a telephone conversation may also be admitted due to the frequency of implied assertions made in such circumstances.[60]

  22. However there may be an issue with the extension of the telephone exception to identificatory remarks made after the telephone conversation as these would constitute express assertions and therefore fall within the scope of the rule in s 59(1). But such remarks are likely to be admissible under ss. 65(2)(b) or 65(8)(a) in criminal cases where the maker is unavailable, or alternatively, where the maker is available, under s 66(2) in criminal cases and s 64(3) in civil cases. As for McHugh J's qualifications to the telephone exception, these may be given effect by the available discretions in ss 135, 136 and 137.[61]

    Conclusion

  23. The inherent reliability exception does not have clear support at common law. However there is obiter support for its recognition in a recent WA decision which may be persuasive in the decisions of lower courts. A limited version of the telephone exception does have majority support at common law. However there are indeterminacies in the scope of the exception, its limitation to identificatory statements seems incontestable. The reform generated by the Evidence Act 1995 (Cth) bestows legitimacy on what are two controversial exceptions at common law. If and when the Act is made uniform, its reforms will dispel much confusion in the area of hearsay evidence and significantly bring the Australian law in this area into alignment with the approach favoured by most other common law jurisdictions.

References

Ashworth & Pattenden, "Reliability, Hearsay Evidence and the English Criminal Trial" (1986) 102 LQR 292.

Aronson, M. & J. Hunter. Litigation. Australia: Butterworths, 1998: pp. 746-805.

Byrne, D. & J. D. Heydon. Cross on Evidence. 6th edition. Australia: Butterworths, 2000: pp. 859-861; 912-914; 1040.

Carter P. B. "Hearsay: Whether and Whither?" (1993) 109 LQR 573.

Chin, T. Y. "Telephone Calls and Hearsay in Australia" (1993) 109 LQR 45.

Ligertwood, A. Australian Evidence. 3rd Edition. Australia: Butterworths, 1998: pp. 564-567.

Lim Y. F. "A Logical View of the Hearsay Rule" (1994) 68 ALJ 724.

Marshall, Brenda. "Admissibility of Implied Assertions: Towards a Reliability-based Exception to the Hearsay Rule" (1997) MonLR 200.

McGinley & Waye, "Implied Assertions and the Hearsay Prohibition" (1993) 67 ALJ 644.

McNicol S. & D. Mortimer. Butterworths Tutorial Series: Evidence. 2nd Edition. Australia: Butterworths, 2001: pp.158-207.

Molomby & Clark, "Let's Not Hear it for Hearsay" (2001) 75 ALJ 133.

McGinley, G. "Bull; King; Marotta: Case and Comment" (2000) 24(5) CrimLJ 315.

Ogders, S. Uniform Evidence Law. 4th Edition. Australia: LBC Information Services, 2000: paras 59.5 - 67.

Palmer A. "The Reliability-Based Approach to Hearsay" (1995) 17 Syd LR 522.

Robertson, B. "What's Left of Hearsay?" (2001) NZLR 421.

Smith & Holdenson, "Comparative Evidence: The Uniform Evidence Acts and the Common Law" (1998) 72 ALJ 363.

Waight P. K. & C. R. Williams. Evidence: Commentary and Materials. 6th Edition. Australia: LBC Information Services, 2002: pp. 598-670.

Zuckerman A. A. S. "Law Commission Consultation Paper No. 138 on Hearsay: (1) The Futility of Hearsay" [1996] CrimLR 4.


Notes

[1] See Ashworth and Pattenden, "Reliability, Hearsay Evidence and the English Criminal Trial" (1986) 102 LQR 292 at 293.

[2] Myer v DPP [1965] AC 1001 per Lord Reid. This decision was reaffirmed in R v Kearley [1992] 2 WLR 656. There has been extensive criticism of this approach. See Zuckerman, "Law Commission Consultation Paper No. 138 on Hearsay: (1) The Futility of Hearsay" [1996] Crim LR 4. Ashworth & Pattenden have also noted that following the Myer decision, the English courts have in part abandoned the hearsay/non-hearsay analysis of evidence and instead adopted reliability as a criterion for admissibility (326).

[3] (1990) 59 CCC(3d) 92.

[4] R v Khan is best viewed as the central piece in a triptych of the Canadian adoption of the flexible approach. The previous decision Ares v Venner (1970) 14 DLR (3d) 4 had established that Canadian courts were empowered to fashion new exceptions to the rule against hearsay. The later decision, R v Smith (1992)94 DLR (4th) 590, reaffirmed and extended the decision in Khan. See Carter, "Hearsay: Whether and Whither?" (1993) 109 LQR 573. Although there has been some controversy over whether the approach adopted in these decisions has replaced or merely supplemented the categorical approach to hearsay exceptions, it is clear that the scope of admissible evidence has been considerably broadened.

[5] Firstly, the courts do not have the power to create new exceptions. Secondly, although there is a residual exception for evidence with a 'circumstantial guarantee of trustworthiness' it is closer to a discretion than a rule of law. Thirdly, this exception derives from legislation, namely Federal Rules of Evidence R 807. The US exception also precedes its adoption in Canada by some 15 years. See Carter 590. The US approach has been criticised on the grounds that the wording of the rule is problematic. in particular the requirement of equivalent circumstantial guarantee is incoherent as the very fact that it has not fitted into any of the other exceptions means that there is no such guarantee. See Aronson and Hunter, Litigation (Australia: Butterworths, 1998) para 17.10.

[6] [2000] NZCA 322.

[7] However the court were of the view that such an exception would be more limited than its Canadian equivalent. They were critical of the scope of the Canadian exception which they claimed diluted the admission of hearsay "to little more than relevance coupled with a sufficient degree of reliability". See Robertson 423. It may be inferred from the court's criticism that they would reject a reliability-based exception as formulated by Mason.

[8] (1989) 166 CLR 283.

[9] "The hearsay rule should not be applied inflexibly. When the dangers which the rule seeks to prevent are not present or are negligible in the circumstances of a given case there is no basis for a strict application of the rule. Equally, where in the view of the trial judge those dangers are outweighed by other aspects of the case lending reliability and probative value to the impugned evidence, the judge should not then exclude the evidence by a rigid and technical application of the rule against hearsay.....[E]specially in the field of implied assertions there will be occasions upon which circumstances will combine to render evidence sufficiently reliable for it to be placed before the jury for consideration and evaluation of the weight which should be placed upon it, notwithstanding that in strict terms it would be regarded as inadmissible hearsay" Walton v R at 293.

[10] Palmer, "The Reliability-Based Approach to Hearsay," Sydney Law Review 17 (1995), 527.

[11] Not only is Mason CJ's formulation in Walton v R directly on point but, as Palmer notes, Kirby P in Astill v R [1992] ACrimR 208 interpreted the exception as discretionary. See Palmer at 527.

[12] Ratten v R [1972] AC 378

[13] See Ligertwood, Australian Evidence, 3rd Edition (Australia: Butterworths, 1998) 564.

[14] Even Carter who supports the Canadian approach to hearsay evidence has argued in relation to Mason CJ's inherent reliability exception that "[t]here would seem to be no good reason why evidence which contravenes, and does not fall within any known exception to, the hearsay rule should be unnecessarily admitted even if it has the appearance of reliability". See Carter at 590.

[15] Palmer 532.

[16] On this point see the contrastive analysis of unreliability in the joint judgment of Wilson, Dawson and Toohey at 306. Also see Palmer 533.

[17] (1989) 168 CLR 110

[18] It might be argued that it was the implied assertion of the mother-daughter relationship in the statement 'My mother is feeling sick' which is inherently reliable. However in light of the various factors of motive for fabrication and engagement in a criminal venture, the statement is hardly one which can be regarded as inherently reliable.

[19] (1992) 66 ALJR 613.

[20] (1974) 130 CLR 267. Barwick CJ stated that "the unlikelihood of concoction or distortion is not sufficient of itself to render a hearsay statement admissible".

[21] They considered there was a strong case for adopting a flexible approach to the rule against hearsay when the evidence "appears to have a high degree of reliability" at 144. However as McNicol & Mortimer, Evidence. 2nd Edition (Australia: Butterworths, 2001) have noted the justices' different views as to the reliability of the evidence in Pollitt v R indicates the indeterminate nature of the reliability exception (171) and its potential for unpredictability.

[22] See 616. In this case, Mason CJ's reliability exception seems to transform from an exception based on the criterion of spontaneity into a principle guiding the creation of new exceptions.

[23] However his support seems limited to those changes in circumstance which "throw up an identified category of case", as opposed to a general inherent reliability exception in Mason CJ's sense.

[24] Pollitt at 635

[25] "Redesign [of] the law of evidence...cannot be done piecemeal or by extensions which are not linked to an underlying principle" Pollitt at 619.

[26] He remarks that it is a rule "which has not hitherto been accepted as part of the law of evidence". Pollitt at 619.

[27] Mason CJ, Deane, McHugh and Toohey JJ.

[28] (1995) 70 ALJR 25

[29] However his criticism of Mason CJ's proposal is based upon an inaccurate characterisation of the exception. In particular he criticises the reliability exception on the grounds that it is not based on any specific criteria. However it seems that Mason CJ's reliability exception (at least in its original formulation in Walton v R), contra McHugh and Gaudron JJ in Benz v R, is based on the criteria of spontaneity and non-concoction. See Marshall, "Admissibility of Implied Assertions: Towards a Reliability-based Exception to the Hearsay Rule" Monash Law Review 23(1997), 215.

[30] He claimed that no case in the High Court "had decided that the law of hearsay is a principle rather than a rule with exceptions or that the rule is always subject to an exception in the case of evidence that is reliable" (Bannon v R at 40).

[31] (1999) 164 ALR 548

[32] Ibid at 313.

[33] See Palmer 525; Roberts 445. Cf. McNicol & Mortimer 170.

[34] Robinson v R (1996) 15 WAR 191 and R v Golightly (1997) 17 WAR 401.

[35] [2002] WASCA

[35] (25 February 2002)

[36] Ibid at para 334. Owen J, although indicating a preference for a flexible approach to the hearsay rule, concluded that following the decision of Bannon v R the current state of the law in Australia does not recognised such an exception (para 342).

[37] At the very least in cases where the statement is exculpatory of the accused. In both Button and Astill the relevant statements were exculpatory of the accused.

[38] "[T]he hearsay rule should be qualified so as not to preclude the receipt of evidence of contemporaneous statements made by one party to a telephone conversation (either in the course of the actual conversation or immediately before or after it) which disclose that the other party against whom it is sought to lead otherwise relevant and admissible evidence of that part of the conversation which was overheard" (Walton v R at 308).

[39] McNicol & Mortimer 171.

[40] At least on Mason CJ's reliability-based approach, implied assertions concerning the other party's identity made during the course of a telephone conversation are clearly reliable and form a natural category of exceptions.

[41] Such a position would be logically flawed. Cf. R v Miladinovic (1992) 109 ACTR 11. In this case Miles CJ held as admissible a statement made by the other party to the telephone conversation about the identity of somebody present with that party. This decision has been regarded as committing the 'telephone fallacy' which Palmer explains as the idea that "a statement is reliable merely because it is made over the phone". See Palmer 535.

[42] Pollitt v R at 629.

[43] Ibid at 640.

[44] Ibid at 635. As Chin has highlighted, these exclusions are justified on the basis that there is a greater likelihood of "false names and deliberate frame-ups" in criminal ventures, making such identifications inherently unreliable". See Chin, "Telephone Calls and Hearsay in Australia" LQR 109(1993), 47.

[45] This extension has been supported by Deane (Pollitt at 629), Mason (Pollitt at 616) and McHugh JJ (Polllitt at 640). Deane J also proposed extending the exception to statements made before the call but this has only been explicitly supported by any McHugh J (Pollitt at 616), though it is rejected by Toohey J in Pollitt v R at 635.

[46] Ashworth & Pattenden 314.

[47] Roberts, 443.

[48] Ibid.

[49] For example, if there had been no accomplice in Walton's case to provide independent evidence that Walton had called the deceased, it would have been more difficult to infer that she actually met him at the Town Centre. But if the telephone exception were invoked, the deceased's identificatory remark would assist in drawing the inference that an arrangement had been made and further that she had met him there.

[50] (1989) 52 SASR 391.

[51] Abrahamson v R (1994) 63 SASR 139. Cf. R v Kearley. The consequences of this view are that the statements cannot be used for the truth of their contents but only as factual evidence of inquiries being made. The practical effect of this distinction is negligible.

[52] However Brennan J's rejection of further judicial reform of the hearsay rule and Gaudron and Dawson JJ's reflections on the difficulty of extracting a principle to support such a view indicate a clear lack of support for the exception.

[53] He stated that "to the extent that statements made during or indeed immediately after a telephone conversation may constitute an exception to the hearsay rule, the scope of any such exception remains to be determined" (Pollitt at 636).

[54] It is significant that Toohey J regards such remarks to be admitted for the purpose of identification only "if the remarks themselves are admissible, whether as original evidence or otherwise" (636). This caveat may significantly impede the application of the telephone exception.

[55] This is the lowest common denominator view, that is one which all four justices would accept. Although both Mason CJ and Deane J would support more than this. Cf. the comments of Gaudron and Kirby JJ in Papakosmas which suggest that the telephone exception has not been recognised. I would submit that the weight of authority leans toward the recognition of a limited version of the exception. Bannon v R did little to resolve the issue as the facts did not promote a discussion of the telephone exception. However it reinforced Brennan CJ's rejection of the exception as implied by his rejection of judicial reform. More significantly, it also suggested that McHugh J may no longer support the exception given his comments about being reluctant to support new exceptions due to legislative reform in the area.

[56] Smith & Holdenson, "Comparative Evidence: The Uniform Evidence Acts and the Common Law," (1998) 72 ALJ 363.

[57] It is interesting to note that the ALRC did not suggest this provision. According to Odgen it was rejected by a majority of the ALRC. See Ogders, Uniform Evidence Law, 4th Edition (Australia: LBC Information Services, 2000) para 65.6.

[58] Ogders para 65.6. Ogders's view would appear to counter various attacks made against the provision on the ground that its "test of admissibility focuses upon the circumstances in which the statement is narrated and not upon the original observation. See Molomby and Clark, "Let's Not Hear it for Hearsay" (2001) 75 ALJ 134. Also see Palmer at 525 for a discussion of how reliability should be determined.

[59] Furthermore Ogders has argued that in the case of an intended implied assertion the onus will be upon the party arguing for the exclusion of the evidence due to the formulation of the provision (para 59.2).

[60] Given that a conversation consists of various responses to previous questions or comments, certain information may be implied through the particular responses.

[61] McHugh J's concerns will have significance in considering the probative value of the evidence.


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