Implied Assertions in Criminal Case

The application of the hearsay rule to implied assertions has long been problematical. Prior to the decision in Walton v The Queen (1989) 166 CLR 283, the balance of authority supported the view that the hearsay rule, while strict in its application, did not extend to implied assertions. In Walton v The Queen, the High Court moved to the position that the hearsay rule did extend to implied assertions, with a body of judicial opinion favouring a flexible, reliability based approach to the admissibility of implied hearsay. In Bannon v The Queen (1995) 185 CLR I, the High Court affirmed the applicability of the hearsay rule to implied assertions but returned to a strict approach to admissibility. In contrast, the Evidence Act 1995 (Cth), Evidence Act 1995 (NSW) and Evidence Act 2001 (Tas) restrict the application of the hearsay rule to express assertions, with admissibility being further extended by significant statutory exceptions to the rule. This approach is affirmed in the recent review of this uniform legislation carried out by the Australian, New South Wales and Victorian Law Reform Commissions. It is submitted that when regard is had to the purposes which the hearsay rule is designed to serve, the rule should be treated as extending to implied oral and written assertions, but not to assertions to be implied from conduct. It is suggested that the hearsay rule is properly regarded as formalistic in nature, and that the rejection in Bannon v The Queen of a flexible approach to admissibility is correct in principle. Leeway should however exist, allowing for admissibility in appropriate cases. This is best achieved not by judicial flexibility, but rather by statutory provisions, such as those contained the Evidence Act 1995 (Cth), Evidence Act 1995 (NSW) and Evidence Act 2001 (Tas), which should be carefully construed having regard to the primary principle of exclusion.