英语论文网

d out a Chinese person was a communist when ‘he drew out a revolver from behind him; to all appearance he was a civilian; he pointed that pistol at me and said ‘I am a communist’ and it was then I knew that he was one.’ [16]

The trial judge interjected, saying ‘hearsay evidence is not admissible and all conversation with the bandits is not admissible unless they are called.’ [17] At the end of the case, two assessors [18] stated that they suspected the accused was acting under duress. The trial judge remarked, ‘With these answers I am unable to agree. I can find no evidence from which duress can be said to have been proved by the defence.’ [19]

In Australia, the jury decides the facts of a case and the judge clarifies questions of law. The hearsay rule is only operational with witness testimony. [20] In the Subramaniam case, direct evidence was given in a manner which was not in the way prohibited by the hearsay rule. [21]

In the case of Kamleh v The Queen [22] , the trial judge allowed evidence that indicated that the television was loud in the room at the time of the double murder. [23] The case was appealed to the High Court. Gleeson CJ and McHugh J in their joint judgment stated that ‘the evidence did not offend against the hearsay rule.’ [24] His Honours stated that evidence was not ‘tendered to prove that the television set had been turned up, rather, the fact that Zappia said what he did about the television set was relevant because it disclosed a state of knowledge on his part which had a tendency to prove that he was in Unit 22 at the time of the killings.’ [25]

Mr Simoniuk and Zappia had another conversation, one which took place outside a McDonald’s, about 10 days before the murders. Mr Simoniuk gave evidence that: ‘Zappia told me that he and Kamleh were planning to catch up with one of the victims because ‘he owed them something’ or ‘had something to settle with him’.’ [26]

In the appeal to the High Court, it was decided that this too was admissible. The evidence led to prove Zappia’s intention to meet & harm the victims. [27] Intention is a state of mind and its relevance was to show that Zappia intended to meet and harm the victims; it is more likely that he did meet and harm the victims. [28]

The High Court followed Walton v R [29] but expressed some doubts. In particular, Mason CJ stated that ‘statements by a person about his intentions or state of mind are often admitted into evidence, whether described as an exception to the hearsay rule or as original evidence’. [30] This is true even ‘when the testimony proffered is not that of the maker of the statement, but that of a person who heard the author make the statement, it is original evidence.’ [31] He continues to say that ‘the making of the statement has independent evidentiary value in proving the author's intentions’ and that ‘it is original evidence rather than an exception to the hearsay rule’. [32]

III HAS CHANGE IMPROVED THE LAW OF EVIDENCE?

The common law prevented implied and intended assertions/communications from being admitted. Under the UEA only intended assertions were prevented from being admitted as evidence. In Wright v Doe d. Sandford Tatham, [33] Tatham was the sole heir and brought an action to set aside a will. He alleged that the decedent was incapable of making a will and the will was obtained by fraud. The defen