Select the correct route under section 114

Section 114(1) provides four alternative routes for hearsay evidence. They are not a compulsory ladder which must be exhausted in order. The sensible working method is to identify the provision which actually fits the evidence, rather than rely on a vague assertion that admission would be fair.

The main statutory routes. Section 116 concerns an identified unavailable maker. Section 117 concerns business and other qualifying documents. Sections 119–120 concern specified previous statements of witnesses. Section 127 concerns particular preparatory work used by an expert. Another statute may provide a route too. Naming section 114(1)(a) without identifying the operative provision leaves the analysis unfinished.

A previous inconsistent statement is an earlier account which conflicts with the witness's present evidence. Under s 119(1), where the witness gives oral evidence and admits making an inconsistent statement, or it is proved by the specified Criminal Procedure Act 1865 procedure, it can be evidence of matters stated which that witness could admissibly address orally. It is not confined to showing inconsistency. Thus a witness's properly admitted earlier identification can be evidence of identity even if the witness now changes their account. Whether it should be believed remains separate. Section 119(2) provides a separate route for an inconsistent statement admitted under s 124(2)(c) when the maker does not give oral evidence; section 8 explains its effect.

Section 120 covers defined situations involving other previous statements. These include an account admitted to rebut an allegation of recent fabrication, the specified use of a document to refresh memory followed by cross-examination and reception in evidence, and statements meeting the statutory identification, lost-memory or complaint conditions. It is not a general permission to repeat an account merely because repetition appears to support the witness. The identification, lost-memory and complaint routes also require the witness, while giving evidence, to indicate the requisite belief in having made a truthful statement. For the complaint route the witness must give oral evidence about its subject before the statement is adduced. Do not resurrect a universal “first opportunity” requirement for complaints: the former prompt-complaint condition in s 120(7)(d) has been removed. The other conditions still matter.

For example, “I identified this man in my earlier statement and believe that account was true” raises a different route from a deceased witness's statement under s 116. A witness who simply reads an old account silently to refresh memory is not, for that reason alone, putting the document in evidence for every fact in it. The witnesses chapter supplies the detailed examination procedure; here the decision is which legal route, if any, makes the earlier words evidence of their contents.

Expert preparatory work, s 127. Suppose an expert's opinion uses measurements recorded by a laboratory colleague. The provision requires the relevant preparer's actual or reasonably supposable personal knowledge, preparation for criminal proceedings or an investigation, and the prescribed advance notification naming the preparer and identifying the matters. When the expert gives evidence based on the statement through this route, the statement is treated as evidence of what it states. A party can seek an order preventing use of the route where the interests of justice require it; the court considers the cost of calling the preparer, evidence only that person could give and whether they could reasonably remember it. This is not an exemption from expert disclosure and procedure, or a licence to rely on unidentified laboratory rumour.

The interests-of-justice route. Section 114(1)(d) requires the court to consider all relevant circumstances, including each of the following s 114(2) factors:

• The statement's probative value assuming it is true, or its value in understanding other evidence.
• What other evidence has been, or can be, given on the matter.
• The importance of the matter or evidence to the case as a whole.
• The circumstances in which the statement was made.
• The apparent reliability of the maker.
• The apparent reliability of the evidence that the statement was made.
• Whether oral evidence can be given and, if not, why not.
• The difficulty of challenging the statement.
• The prejudice likely to result from that difficulty.

Probative value means its capacity to help prove a relevant matter. The instruction to assume truth when considering that value does not require the court to assume that the maker or the recording is reliable under the separate reliability factors. A highly incriminating accusation can be highly probative if true and still be unsuitable for admission because there is no meaningful way to test whether it is true.

Explain any unsuccessful or inappropriate specific route. Failure under s 116 or s 117 is not a mechanical answer to every s 114(1)(d) application, but the court must confront the reason for failure. Avoidable non-attendance, an unidentified source, a defective chain or serious inability to challenge are not erased by using the words “interests of justice”. Nor does another route require an additional s 114(1)(d) order simply because it is hearsay. Section 114(3) preserves exclusion on grounds other than the statement's hearsay character.