英语论文网

dant argued that he was competent and introduced written letters, as proof of competence which had been written to the defendant before his death. The assertion being made was that the letters were written by a rational competent person. The plaintiff argued that the letters were hearsay. The decision made by the court was that the letters were hearsay and therefore inadmissible. The letters implied a statement or opinion of the author and implied a statement that the deceased had a sound state of mind at the time. [34]

Baron Parke discussed the hypothetical example where a captain of a ship was observed to carefully inspect his ship and then set sail with his family on board. [35] He discussed that the captain’s behaviour could be interpreted in two ways:

by performing the inspection, could it be inferred that the captain believed his boat to be seaworthy. Believing the boat is seaworthy is a state of mind. [36]

by performing the inspection, could it be inferred that the boat was in fact seaworthy? No, it is hearsay to use the captain’s conduct to infer the boat was seaworthy. It does not matter that the captain’s ‘statement’ to this effect is implied by his conduct rather than expressly communicated. [37]

A gesture such as walking around, touching, pointing [38] and inspecting the boat could be interpreted as an act of communication. There are times when a person unintentionally communicates a fact through their behaviour. An unintentional communication of a fact is sometimes referred to as an implied assertion. At common law, implied assertions are not any more admissible than intentional assertions.

A century and a quarter later after Tatham, Lord Reid in Myers v DPP [39] commented that legislation introduces arbitrary conditions and limitations and any decisions to change the law in an effective manner ought to be only if the final decision will produce some ‘finality or certainty.’ [40] He further went on to discuss that the only solution was for legislation to include technicalities which can be used in conjunction with the application of common sense.

The position of the UEA is that the hearsay rule only prohibits facts which a person “intends to assert”. Section 59(1) of the UEA states:

Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.

The question to be asked is how do we determine whether the person subjectively “intended to assert” a fact, particularly if that person was unavailable for questioning. [41] The amendments made in the NSW Evidence Act in 2007 and the Commonwealth in 2008 inserted the words “it can reasonably be supposed” to make the test of intention one to be determined objectively from the surrounding circumstances.

The Australian Law Report Commission (‘ALRC’) [42] explained the difference between the common law and s 59 as follows:

... on the facts of Walton v The Queen [43] , 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 is unlikely the child would intend to assert the identity of the caller. By contrast, at common law, the statement was held by the High