Regina v Lee: 1998

(High Court of Australia) The court considered the operation of the hearsay rule, saying: ‘The rule’s operation requires consideration first of why it is sought to lead evidence of something said or done out of Court (a previous representation). What is it that that ‘previous representation’ is led to prove? In particular, is it sought to lead it to prove the existence of a fact that the person who made the representation intended to assert by it? The fact that the statement or the conduct concerned might unintendedly convey some assertion is not to the point. The inquiry is about what the person who made the representation intended to assert by it.’
Evidence that a witness had seen what was recorded in his prior statement was relevant to the issues in the case, but his representation out of court that he had seen those things was hearsay; however, because that representation was also relevant to show that he had made a prior statement inconsistent with his evidence in court, the hearsay rule did not apply; and so the representation would be admissible to prove the fact that the witness intended to assert by the representation.
‘Confrontation and the opportunity for cross-examination is of central significance to the common law adversarial system of trial.’


Gleeson CJ, Gummow, Kirby, Hayne and Callinan JJ


(1998) 195 CLR 594, (1998) 157 ALR 394, (1998) 16 Leg Rep C1

Cited by:

CitedAl Rawi and Others v The Security Service and Others SC 13-Jul-2011
The claimant pursued a civil claim for damages, alleging complicity of the respondent in his torture whilst in the custody of foreign powers. The respondent sought that certain materials be available to the court alone and not to the claimant or the . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Criminal Practice, Evidence

Updated: 04 May 2022; Ref: scu.441865