Hearsay Flashcards
Hearsay rule
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 (s59)
Two features of hearsay
Out of court declaration and in court reporter
Presumption about hearsay evidence
Presumption that the maker of rep is competent unless otherwise proven.
Exceptions to the hearsay rule
- relevant for a non-hearsay purpose
- FHH maker not available - crime and civil
- FHH maker available - crime and civil
- contemporaneous statements about a person’s health, feelings, intention etc
- Documents/ business records
- content of tags, labels and writing
- electronic communications
- Aboriginal and Torres Strait Islander Laws and customs
- reputation of public or general rights
- interlocutory proceedings
What is a non-hearsay purpose?
Non-hearsay purpose: does not prove an element of the offence
Explain the exception to the hearsay rule - evidence admissible for a non-hearsay purpose?
- Non-hearsay purpose: does not prove an element of the offence
- S60 EA is an exception to the hearsay rule. Where you can get evidence admitted for a non-hearsay purpose, you can also use it for a hearsay purpose (ie to prove the existence of an asserted fact) (s60).
- Note that the use of the evidence for a hearsay purpose can be limited under s136 EA. – if there is a risk of misuse
- Consider unreliable evidence direction (s32 JDA)
Evidence of previous representation could be admissible under credibility rules – prior consistent or inconsistent statement could be admitted (s60 exceptions)
Lay opinion rule: giving an account of what they observed (narrative of what they observed)
Original evidence (common law): statement made not to prove the words that were used but the fact that it was made. – eg. A charged with possessing of weapon. Claimed duress and that terrorists had insisted that he carried the weapon. The court said it did not matter what words the terrorists used but the effect was that A was under duress. – Directly relevant to state of mind, intention, knowledge
Does not apply to admissions in criminal proceedings.
What is First hand hearsay?
evidence of a previous representation made by a person who has personal knowledge of an asserted fact (s62(1)). A person has personal knowledge of an asserted fact if his or her knowledge of the fact was, or might reasonably be supposed to have been, based on something the person saw, heard or otherwise perceived (s62(2)).
Explain the exception to the hearsay rule - first hand hearsay – maker NOT available - CIVIL
- Maker of the representation is competent to give evidence (s61)
- Maker of the representation is not available
Civil – if maker is not available – s63
Evidence of the representation given by a person who saw/heard/otherwise perceived the representation being made (ie FHH) (s63(2)(a)); OR
A document so far as it contains the representation, or another representation which it is reasonably necessary to refer in order to understand the representation (s63(2)(b)).
Notice requirement: S.67 requires ‘reasonable’ notice to be given of an intention to adduce evidence of a first-hand hearsay representation where the maker of the representation will not be called as a witness.
o Notice must state the particular division on which party intends to rely.
o Must be in form Reg 5, Evidence Regulations 2009 (ie date/time place of representations, and names of the persons each of those representations was made).
When is a witness deemed not to be available?
a) Person is dead
b) Person is, for any reason other than the application of s16 (judges and jurors not competent to give evidence in the same proceeding), not competent to give the evidence about the fact
c) It would be unlawful for the person to give evidence about the fact
d) A provision of this act prohibits the evidence being given
e) All reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or to secure his or her attendance, but without success
f) 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
The person is mentally or physically unable to give evidence and it is not reasonably practicable to overcome that inability
Explain the exception to the hearsay rule - first hand hearsay – maker NOT available - CRIMINAL
- Maker of the representation is competent to give evidence (s61)
- Maker of the representation is not available
Crime – if maker is not available – s65
2(a) Representation was made under a duty to make that representation or to make representations of that kind
2(b) Representation was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication
2(c) Representation was made in circumstances that make it highly probable that the representation is reliable
2(d) Representation was against the interests of the person who made it at the time it was made; and made in circumstances that make it likely that the representation is reliable
65(8) a previous representation adduced by a defendant
65(9) ‘if evidence of a previous representation about a matter has been adduced by a defendant
Notice requirement: S.67 requires ‘reasonable’ notice to be given of an intention to adduce evidence of a first-hand hearsay representation where the maker of the representation will not be called as a witness
Explain the exception to the hearsay rule - first hand hearsay – maker available - CIVIL
- Maker of the representation is competent to give evidence (s61)
- Maker of the representation is available
Civil – maker available
S68 –
If maker is called, then hearsay does not apply. If it would cause undue expense or undue delay, or would not be reasonably practicable, to call the person who made the representation to give evidence, then hearsay rule does not apply.
If witness is not being called, the party seeking to lead evidence must give notice – s67
* S.67 requires ‘reasonable’ notice to be given of an intention to adduce evidence of a first-hand hearsay representation where the maker of the representation will not be called as a witness.
* S68 – if notice is re undue delay/not reasonably practicable, within 21 days after notice given, party can object to the tender of the evidence in writing setting out the grounds of the objection.
‘undue expense or undue delay’ relevant matters include ‘the actual cost of securing the attendance of the witness; a comparison of that cost with the value of what is at stake in the litigation; and an assessment of the importance of the evidence the witness might give’ (Caterpillar)
‘not reasonably practicable’ considerations include the location of the person, their age and medical condition, the cost of calling them to give evidence, any delay in the proceeding which would be caused; the importance of the evidence and the extent to which it is disputed.
Explain the exception to the hearsay rule - first hand hearsay – maker available - CRIMINAL
- Person who made the representation has been or is to be called to give evidence; AND
- Either
a. When the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation; or
b. The person who made the representation is a victim of an offence to which the proceeding relates and was under the age of 18 years when the representation was made.
Explain the exception to the hearsay rule : contemporaneous statements about a person’s health, feelings, intention etc
The hearsay rule does not apply to evidence of a previous representation made by a person if the representation was a contemporaneous representation about the person’s health, feelings, sensations, intention, knowledge or state of mind (s66A).
Explain the exception to the hearsay rule: Business records (documents)
S69 applies to a document that contains a previous representation made or recorded in the document in the course of, or for the purposes of, the business; and
o is or forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a business, OR
o at any time was or formed part of such a record.
Can apply to first hand hearsay (personal knowledge based on what the person saw, heard or otherwise perceived s69(5) – s69(2)(a) and second hand hearsay (s69(2)(b))
Police records can be categorised as business records.
Explain the exception to the hearsay rule: content of tags, labels and writing
S70 - Hearsay rule does not apply to a tag or label, which is attached to/writing on an object, if the label was supposed to have been attached:
o In the course of a business; AND
o For the purpose of describing or stating the identity, nature, ownership, destination, origin or weight of the object, or of the contents (if any) of the object.
