Welcome to the Evidence Act 2008

This blog was started back when the Evidence Act 2008 was nothing more than a gleam in Parliament's eye. It was an attempt to further understanding of some challenging new legislation when information about it was difficult to find.

Since then, many authors and luminaries have turned their minds to the complex issues the Act obliges Victorian lawyers to engage with. A blog devoted exclusively to this one piece of legislation isn't necessary, and is impossible for us to give the attention it deserves.

If you're looking for a more conventional blog posting on topical legal issues, have a look at Quis Custodiet Ipsos Custodes? by the same authors.

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Documents must say something to be hearsay

A document that says nothing — that shows something did not happen — can't be a hearsay document.

That's the gist of a decision by the UK's Queen's Bench Division of the High Court in DPP v Leigh [2010] EWHC 345 (Admin). The case isn't on Bailii, but is (for the moment at least) available here on wikicrimeline.co.uk.

Mr Leigh was charged with failing to give the police information to identify the driver of a motor car involved in certain offences. That offence is similar to s 60 of the Road Safety Act 1986.

The prosecution wanted to tender business records from a police unit, purportedly showing no information was provided by the accused.

The accused objected that the evidence was hearsay.

The Court considered it wasn't, because it didn't assert anything.

[13] The record is of significance, but the significance lies not in what it says, but in what it does not say i.e. the fact that it says nothing. The entry in the record is demonstrating that someone has asserted that a reply has been given, but it is artificial to suggest that anyone by failing to put anything in the record concerning a particular individual is thereby seeking to assert that no reply has been given by that person. That is not the purpose behind their inaction in not recording a response that has not been made.

Here, s 59 of the Evidence Act 2008 defines hearsay similarly to the provisions considered in DPP v Leigh.


Jeremy Gans,  March 9, 2010 at 1:17 PM  

I'm dubious, at least about the application of this decision under the EA2008.

Section 59 applies to 'representations', and those are pretty broad. They include conduct, such as the conduct of not entering information into a form/computer. It seems to me that the documents relied on this case is evidence of such (out-of-court) conduct, which makes them 'evidence of a previous representation'.

The next question is whether the conduct was 'intended to assert' anything. And all the evidence suggests that this was an organised system where it was intended that all incoming info would be recorded. So, the act of not recording is an intentional assertion that nothing came in. To the extent that non-recording wasn't intentional (e.g. it was accidental), it obviously proves nothing. So, not only were the documents evidence of conduct that intentionally asserted anything, but it was actually an assertion of the very fact to be proved. Section 59 applies, unless an exception applies.

For a NSW decision holding that s59 does apply to both negative acts and negative facts, see R v Rose [2002] NSWCCA 455 (holding that a university class's silence in response to a police query about whether a murder victim had a friend of a particular description was inadmissible under s,59.) I don't think documents should be treated any differently. Indeed, the business records exception (see s69(4)) assumes that empty documents can be hearsay.

More generally, I think that it's inappropriate to give the words of s59 narrow technical meanings that confine their operation. There are plenty of hearsay exceptions that can and should be used and there's also Charter ss. 24 & 25(2)(g) to consider. In the UK, where the hearsay exceptions are even more generous, that's doubly true.

Kyle March 10, 2010 at 11:23 PM  

Jeremy, I posted this also on my other blog, about the meaning of representation in the dictionary:

(a) an express or implied representation (whether oral or in writing); or

(b) a representation to be inferred from conduct; or

(c) a representation not intended by its maker to be communicated to or seen by another person; or

(d) a representation that for any reason is not communicated.

I think you're right about this catching such a scenario here.

But, I was looking at s 69 today. I reckon s 69(4) would result in reception of this sort of evidence. That provides:

(4) If—

(a) the occurrence of an event of a particular kind is in question; and

(b) in the course of a business, a system has been followed of making and keeping a record of the occurrence of all events of that kind—

the hearsay rule does not apply to evidence that tends to prove that there is no record kept, in accordance with that system, of the occurrence of the event.

Clause 1, Part 2 of the dictionary relevantly defines business:

(1) A reference in this Act to a business includes a reference to the following—


(b) an activity engaged in or carried on by the Crown in any of its capacities;


(d) an activity engaged in or carried on by a person or body holding office or exercising power under or because of the Commonwealth Constitution, an Australian law or a law of a foreign country, being an activity engaged in or carried on in the performance of the functions of the office or in the exercise of the power (otherwise than in a private capacity)

If the police had a similar setup here, I reckon the record showing that no report was (purportedly) made would be admissible under s 69(4). The more I think about it, the stranger it seems to try to prove a negative — and to do so beyond a reasonable doubt using hearsay evidence which, by its very nature can't be tested, and further can't be tested because it doesn't exist. I guess the trite response to the accused's predicament would be that it in no way precludes a positive defence that they did provide the information as required (and presumably it just wasn't captured or recorded as it ought).

But then, that might be contrary to Charter s 25(1)?

Jeremy Gans,  March 12, 2010 at 10:50 AM  

I agree that s69(4) can be used to admit the evidence. My point was only that s59 applies, so an exception was needed. Actually, s69(4)'s probably the only available exception, as s65(2) requires a human witness to the 'representation' and s69(2) is subject to s69(3), which bars representations made in connection with a proceeding or investigation (which I think would apply here.) Interesting that s69(3) doesn't limit s69(4), as 69(3) is the usual reason why the broad definition of business doesn't lead to the admission of law enforcement records.

I dunno if there's a s25(1) problem here. The burden of proof is still on the prosecution and the court doesn't have to accept that the absence of evidence is evidence of absence; s69(4) just removes the hearsay rule as a barrier to that reasoning.

But there is, arguably, a s25(2)(g) (or s24) problem, because of the reliance on hearsay (especially hearsay that is generated as part of an investigation). The US Supreme Court (these days) would not allow this sort of thing at all because of the right of US criminal defendants to 'confront' the testimony against them. In Victoria, the issue would be whether s69(4) (despite the non-applicability of s69(3)) is a reasonable limit on s24/25(2)(k).

BTW, a slight quibble on your post at QCIC. I think the relevant 'person' under s59 is someone working at the records centre, rather than the accused. The accused's representation isn't subject to s59 because, as I understand things, the fact of that representation is an element of the offence (so the P aren't trying to prove anything the accused intended to assert.) This also means that s89 won't bar the evidence (as s89(3)) applies.)

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