Hearsay Flashcards
What is the Hearsay Rule as per S.59 of the Evidence Act?
S59 Hearsay Rule
1. 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 that the person intended to assert by the representation.
2. Such a fact is in this Part referred to as an asserted fact.
What is the 3 part test for the Hearsay rule?
3 Part Test
1. Previous representation
2. Made by a person
3. Not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert
What is S55 of the evidence act?
55 Relevant evidence
(1) The evidence that is relevant in a proceeding is evidence that,
If it were accepted,
could rationally affect (directly or indirectly)
The assessment of the probability of the existence of a fact in issue in the proceeding.
What is Section 56 of the Evidence Act?
56 Relevant evidence to be admissible
(1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.
(2) Evidence that is not relevant in the proceeding is not admissible.
What is Section 59(3) of the Evidence Act.
(3) Subsection (1) does not apply to evidence of a representation contained in a certificate or other document given or made under regulations made under an Act other than this Act.
In relation to Section 59(3),
1. What purpose would you rely on a certificate for?
2.Why does this sub only relate to certificates issued under other Acts?
3.What happens to certificates issued under this Act?
1.To prove the truth of what the certificate said
2. To prove the truth of what the certificate said
3. They have their own provisions
What is Section 60 of the Evidence Act?
60 Exception: evidence relevant for a non-hearsay purpose
(1) The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact.
(2) This section applies whether or not the person who made the representation had personal knowledge of the asserted fact
What is Section 62 of the Evidence Act?
Restriction to 1st hand evidence
a previous representation that was made by a person who had personal knowledge of an asserted fact.
What is Section 65 of the Evidence Act?
65 Exception: criminal proceedings if maker not available
(1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.
(2) The hearsay rule does not apply to evidence of a previous representation if;
(a) was made under a duty or
(b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely to be a fabrication, or
(c) was made in circumstances that make it highly probable that the representation is reliable, or
(d) was—
(i) against the interests of the person who made it at the time it was made, and
(ii) made in circumstances that make it likely that the representation is reliable.
What is unavailable person?
(a) the person is dead, or
(b) not competent to give the evidence, or (c) the person is mentally or physically unable to give the evidence or
(d) it would be unlawful for the person to give the evidence, or
(e) a provision of this Act prohibits the evidence being given, or
(f) all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or secure his or her attendance, but without success, or
(g) all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success.
What is Section 66 of the Evidence Act?
66 Exception: criminal proceedings if maker available
(1) This section applies in a criminal proceeding if a person who made a previous representation is available to give evidence about an asserted fact.
I.e, the Hearsay rule does not apply!
What is the Case Law of Walton V R
Walton v R [1989] HCA 9
Hello daddy case , was held that the representation of saying hello daddy on the phone was not intended to asserting anything therefore not hearsay
What is the Case Law of Subramaniam v Public Prosecutor?
Subramaniam v Public Prosecutor [1956] W.L.R. 965
On appeal it was held that the evidence was admissible, not to prove the truth of any statement by the terrorists, but as bearing on the state of mind of the appellant.
What is the Case Law of Pakaosmas v The Queen?
Papakosmas v The Queen [1999] HCA 37
In relation to limitation of evidence through s136
Para 38 Counsel went so far as to argue that, as a general rule, a court which receives evidence of complaint in any criminal case should limit its use under s 136 so that it is not used for a hearsay purpose.
Para 39 The submissions must be rejected. They amount to an unacceptable attempt to constrain the legislative policy underlying the statute by reference to common law rules,
I.e, once evidence is in, it’s in!
What can Section 60 of the Evidence Act be used for? What is it not used for?
Evidence that is hearsay can be used towards police powers and credibility
It is not to be used as an exception
