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Court to be hearsay and therefore inadmissible as evidence of the identity of the caller.

It has been reported that in Australia there is ‘general dissatisfaction with the operation of the traditional hearsay rule is arguably matched only by the dissatisfaction created by current judicial response to reform the rule.’ [44] In the Canadian landmark case of R v Kahn [45] , the Supreme Court of Canada adopted a flexible approach to the hearsay rule. Collins comments that despite the ‘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.’ [46]

The Australian High Court in the decision of Walton v R [47] indicates the potential for a debate on the judicial reform of the hearsay rule. Mason CJ in this case believed that spontaneity forms the basis of the reliability exception. This approach has been criticised and deemed inadequate, as it is not guard against the possibility of mistake. [48]

In the case of Pollitt v R [49] , Mason CJ found witness statements to be ‘inherently reliable despite his criminal character and participation in a criminal venture at the time the statements were made.’ [50] The inherent reliability exception was rejected in the joint judgements of Wilson, Dawson and Toohey JJ in Walton. Mason CJ reiterated his support for the adoption of an inherent reliability exception and received support from McHugh and Deane JJ about the need to admit hearsay evidence ‘when it appears to have a high degree of reliability’. [51] In contrast, Brennan J explicitly rejected the flexible approach to the hearsay rule in both Pollitt and Bannon v R. [52]

Although the High Court has lost favour that the inherent reliability exception should be implemented, there appears to be some further commentary and support to the recognition of inherent reliability exceptions in Western Australia and in our State Court decisions. [53]

IV CONCLUSION

The Evidence Act 1995 (Cth) has significantly reformed the law on hearsay evidence and will bring all jurisdictions into alignment with implementation. Section 65(2)(c) allows for an exception to inherent liability. [54] In a criminal proceeding where the maker is unavailable, evidence can be ‘made in circumstances that make it highly probable that the representation is reliable’. [55]

As discussed earlier, the telephone exception has been given recognition in the Evidence Act 1995 (Cth) through the definition of hearsay in s 59(1). This section excludes all unintended assertions and remarks made over the phone leading to the identification of a person would generally be considered as unintended assertions.

An area for consideration would be for comments made after the telephone conversation. The scope of section 59(1) would allow these express assertions and would be admissible in both criminal [56] and civil cases. [57]

At the High Court level, ‘the inherent reliability exception does not have clear support at common law’ [58] although there appears to be support in Western Australia. The implementation of the Evidence Act 1995 (Cth) and its reforms will assist with clarifying the current confusion that exists around hearsay evidence and provide a positive step forward for all jurisdictions.