Hearsay and ‘second-hand’ admissions


The hearsay rule prevents an out of court assertion from being led in court to prove the truth of that assertion. Admissions against interest are a well-established exception to the rule against hearsay. So for example, consider a situation in which an accused person (A) tells their friend (B), out of court, that they (A) stole a car. At A’s trial for stealing the car, witness B may give evidence that A made that admission to B. Pursuant to the admissions exception, B’s evidence can be used for its truth: to prove that A not only made the admission, but also to prove the truth of what A said… that is, that A stole the car.

Admissions might be express (as in the example above) or implied (eg, through A failing to deny an allegation B makes against them in circumstances where A’s denial would be expected if the allegation were untrue).

In TWR v The State of Western Australia [2022] WASCA 24, the Court of Appeal considered the admissibility of evidence from the complainant’s mother about messages sent to her by the appellant’s wife, which were said at trial to constitute implied admissions by the appellant.

TWR v The State of Western Australia [2022] WASCA 24:

In the District Court, the appellant was tried by jury and subsequently convicted of four counts of sexually penetrating a child under the age of 13 years and three counts of indecently dealing with a child under the age of 13 years. At trial, the prosecution adduced evidence of WhatsApp messages exchanged between the complainant’s mother and the appellant’s wife. This evidence was adduced through the complainant’s mother (at [6]). In that message exchange, the complainant’s mother accused the appellant of ‘sexual advances’ which included ‘inappropriate touching and more horrific gestures’ against the complainant. The appellant’s wife indicated in her responses that she had spoken with her husband, and that he promised he would stay away from the complainant and her mother at all times.

As put by the Court of Appeal:

The prosecutor relied on these text messages as constituting implied admissions by the appellant, made through his wife, that he had engaged in sexual conduct with the complainant. The implied admission was said to arise from the absence of a denial of the offending and failure of the appellant to ask for details of the allegations. The trial judge gave the jury detailed directions about the circumstances in which they could use the text messages as an implied admission of guilt.‘ (at [11])

One ground of appeal contended that the trial judge erred by allowing the messages to be used as an implied admission by the appellant. This ground was conceded by the State at the appeal.

In essence, the Court of Appeal noted that the admissions exception to the hearsay rule did not apply to the evidence adduced through the complainant’s mother. Whilst ‘[t]he appellant’s wife could have given evidence of admissions against interest made by the appellant directly to her, under an exception to the rule against hearsay… the complainant’s mother could only give direct evidence about what the appellant’s wife said that the appellant had said.’ (at [12])

The Court of Appeal, citing East Metropolitan Health Service v Popovic [2019] WASCA 18, said that leading the complainant’s mother’s evidence in that way would infringe the hearsay rule because it involved using ‘out of court statements, made by the appellant’s wife about what the appellant had been told, and said in response, as evidence of the truth of what the appellant had been told by, and said to, his wife. The hearsay rule precluded that use of the mother’s evidence of the wife’s out-of-court statements to prove the truth of the wife’s statements. None of the exceptions to the hearsay rule were applicable.’ (at [12])

In short, the prosecution used the complainant’s mother’s evidence of the wife’s statements for a hearsay purpose, and the admissions exception did not apply as the statements were not made by the accused.

The State did not contend that a substantial miscarriage of justice had not occurred. The Court of Appeal ultimately allowed the appeal on this ground, setting aside the appellant’s convictions and ordering a retrial (at [13]).

An additional ground of appeal contended that the trial judge erred by directing the jury that they could consider certain statements the complainant said to her mother in 2017 and 2018 as recent complaints which could bolster the complainant’s credibility (at [16]). The Court of Appeal noted that neither of those statements should be characterised as recent complaints (at [22]), and that if they were to be admitted in the retrial for some other reason, that ‘the jury in the new trial should not be directed that the evidence can be used to bolster the complainant’s credibility or demonstrate consistency of her conduct.’ (at [27])

The judgment:

The judgment was delivered in February 2022 and can be accessed here. My thanks go to Matthew Thompson for bringing this decision to my attention.

MNA v The State of Western Australia [2020] WASCA 84

In brief:
The appellant was convicted of two counts of indecent dealing against children. The appellant appealed on several bases, including matters relating to recent complaint and propensity evidence. The appellant argued that the trial judge erred by permitting use of the complaint evidence as ‘recent complaints’, by admitting prior convictions as propensity evidence, and by improperly directing the jury about the prior convictions. The Court of Appeal found that the trial judge erred in directing the jury about how they could use the propensity evidence and consequently allowed the appeal. In a joint judgment, Buss P and Mitchell JA decided that no other ground of appeal was established. In a separate judgment, Derrick J regarded the propensity evidence as inadmissible at trial.

In relation to the complaint evidence, Buss P and Mitchell JA found that it was not improperly received in the circumstances given that at trial the appellant’s counsel made a tactical decision not to object to it ([29]-[34]). Their honours also found that the trial judge’s direction was appropriate as it ‘did no more than indicate the jury could consider the complaint evidence in determining the consistency, the believability and the credibility of the complainants… the jury would not have understood the trial judge to be inviting them to regard the complainants’ response to, and complaints in relation to, the alleged assaults as supporting the prosecution case’ ([38]).

The propensity evidence matter concerned the appellant’s previous convictions for ‘using electronic communication with intent to procure a person he believed to be under the age of 16 years to engage in sexual activity’ ([53]). Applying Evidence Act 1906 (WA) s 31A, Buss P and Mitchell JA found that the prior convictions were admissible because they ‘did have significant probative value as to the issue of whether any touching that did occur was deliberate and sexually motivated (so as to be indecent)’ ([70]). Their honours clarified that the touching itself would have to be independently established by other evidence ([76]). Through a process of analysing the similarities and distinguishing features between the prior convictions and the counts at trial, their honours found that the prior convictions could not be significantly probative in respect of establishing that the appellant did in fact touch the complainants as alleged ([89]). Their honours set out that ‘Because the propensity evidence was admissible for a limited purpose, it was incumbent on the trial judge to direct the jury on the permissible limits of the use of the evidence’ ([89]). At trial there was no such direction, and this gave rise to a miscarriage of justice ([92]). The State did not assert that the ‘proviso’ applied, and as such Buss P and Mitchell JA allowed the appeal, set aside the convictions and ordered a new trial.  

In a separate judgment, Derrick J found that the prior convictions should not have been admitted at all. His honour regarded the elements of deliberateness and indecency as separate from one another, and whilst the prior convictions could have been admissible to prove indecency, he did not regard indecency as a fact in issue at trial ([170]-[196], [206]-[208]). Derrick J therefore also found that the appeal should be allowed, that the proviso should not be invoked, and that the convictions should be set aside and a new trial ordered.

The difference in conclusion between the majority and Derrick J on the admissibility of the propensity evidence highlights the importance of first identifying the fact in issue that the evidence is said to be significantly probative of. Though not strictly a matter of evidence law, this in turn demonstrates the importance of precisely understanding the nature of each element to be proved.

The judgment:
The judgment was delivered on 29 May 2020. You can access it here. See especially the paragraphs cited above.