Hearsay Flashcards
Rule against hearsay
Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed the maker intended to assert by the representation (unless an exception applies).
Is it hearsay?
(1) previous representation
(2) made by a person
(3) that contains an asserted fact
(4) can it reasonably be supposed the maker intended to assert that fact? (unintended/implied assertions not captured).
(5) is the evidence being adduced to prove the truth of the asserted fact?
Conclude: Prima facie inadmissible?
Hearsay exceptions (list)
Relevant for a non-hearsay purpose (60).
First hand hearsay exceptions.
Contemporaneous statements about health (66A).
Business records (69).
Contents of tags, labels and writing (70).
Electronic communications (71).
ATSI laws and customs (72).
Reputation as to relationships and age (73).
Reputation of public or general rights (74).
Hearsay rule does not apply to interlocutory proceedings if the adducing party also adduces its source (75).
Is the maker unavailable?
- Dead.
- For any reason other than s 16 (judge/juror) not competent.
- Mentally/physically unable to give evidence and not reasonably practicable to overcome inability.
- It would be unlawful for them to give evidence.
- A provision of the EA prohibits them from giving evidence.
- All reasonable steps have been taken by party seeking to prove W not available to find the person or secure attendance.
- all reasonable steps have been taken by the party seeking to prove not available to compel the person to give evidence.
First hand
Hearsay is firsthand where the previous representation was made by a person who had personal knowledge of the asserted fact (that is, the knowledge of the fact was, or might reasonably be supposed to have been, based on something they saw, heard or otherwise perceived, other than a previous representation being made by another person) (62).
