Hearsay

Question 1

HEARSAY RULE
s 59 - evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably ______________________

Answer 1

be supposed that the person intended to assert by the representation

Question 2

s 60 exception - evidence relevant for a (1) _______ is admissible

Answer 2

non-hearsay purpose

Question 3

If evidence is admissible for a non-hearsay purpose under s 60, it has the effect of enabling the evidence to be used for a:
(1) ___________ ,
subject to
(2) __________

Answer 3

(1) hearsay purpose
(2) exclusionary and discretionary provisions
Schanker v The Queen [2018] VSCA 94, [100]

Question 4

Evidence admitted under s 60 is NOT limited to:

Answer 4

first-hand hearsay (s 60(2))

Question 5

s 61 - exceptions to hearsay depend on W’s __________

Answer 5

Competency. Previous representation is inadmissible if W was not competent to give evidence b/c of s 13(1).

Note s 61(2) - will be admissible if a contemporaneous representation made by W about W’s health/feelings etc

Question 6

The s 60 exception (admitting hearsay evidence for a non-hearsay purpose) does not apply to __________

Answer 6

an admission in a criminal proceeding (s 60(3))

Question 7

The s 60 exception, admitting hearsay evidence for a non-hearsay purpose, applies whether or not W had __________

Answer 7

personal knowledge of the asserted fact (s 60(2))

Question 8

The exception under s 60 to admit evidence relevant for a non-hearsay purpose does NOT apply to:

Answer 8

evidence of an admission (s 60(3)).

Question 9

Evidence of an admission is not admissible under s 60 (non-hearsay purpose exception), HOWEVER, it may still be admissible as an exception under which section?

Answer 9

Section 81
*only if FHH evidence of the admission

Question 10

If hearsay evidence is admitted under s 60 for a non-hearsay purpose, is the judge required to give the jury a direction?

Answer 10

No

Question 11

If requested, there is a requirement to CONSIDER warning any jury with respect to the:
(1) __________

of hearsay evidence admitted under s 60 for a non-hearsay purpose, in accordance with section: (2) __________ of the Jury Directions Act

Answer 11

(1) reliability
(2) s 32

Question 12

Restriction to FHH is in section __________

Answer 12

s 62(1) - W has “personal knowledge” of an asserted fact

Question 13

s 62(2) - W has “personal knowledge” of an asserted fact if knowledge WAS or might reasonably have been supposed to have been based on something W __________

Answer 13

saw, heard or otherwise perceived

Question 14

s 63 - civil exception - maker

Answer 14

not available

Question 15

s 64 - civil exception - maker

Answer 15

available

Question 16

s 65 - crim exception - maker

Answer 16

not available

Question 17

s 66 - crim exception - maker

Answer 17

available

Question 18

If maker not available, FHH is admissible in these 4 circs

Answer 18

s 65(2)(a) - under a duty to make the representation

s 65(2)(b) - made shortly after asserted fact occurred AND unlikely representation is a fabrication

s 65(2)(c) - made in circs it’s highly probably the representation is reliable (e.g., not when W is high on drugs)

s 65(2)(d) - when representation is against the interest’s of W AND where it is likely the the rep is reliable

Question 19

Where the maker is not available, the type of FHH admissible under s 65(2)(a) is where -

Answer 19

W under a duty to make the representation or to make representations of that kind

Question 20

Where the maker is not available, FHH is admissible under s 65(2)(b) if the representation is made:
1 s_______ a________ the a______ f______
and
2 __________________ a f_________

Answer 20

1 SHORTLY AFTER the asserted fact
And
2 in circs that it’s UNLIKELY to be a fabrication

Question 21

Maker not available, the type of FHH admissible under s 65(2)(c) is where the representation was:
1/ made in circs that make it highly ___________
2/ the representation is ______________

Answer 21

PROBABLE
RELIABLE

Question 22

Maker not available, the type of FHH admissible under s 65(2)(d) is a representation that is made:
1/ against ________________ and
2/ made in circs that the representation is likely ________________

Answer 22

1/ W’s interests
2/ reliable

Question 23

Maker not available, the type of FHH admissible under s 65(3) is -

Answer 23

evidence given in previous proceeding, and if D XXN or had a reasonable op to XXN.

D had reasonable op to XXN W even if D not at the proceeding but could have reasonably been present AND if present, could have XXN (s 65(5)) - does not apply to comp exams for example

Question 24

[maker not available]
Evidence from a previous proceeding admitted under s 65(3) can be adduced through tendering __________

Answer 24

transcript or recording of the hearing, with the relevant authentication (s 65(6)

Question 25

[maker not available] If more than one accused, evidence from a previous proceeding admitted under s 65(3) cannot be used against a co-accused unless _________

Answer 25

co-accused XXN'd or had reasonable opportunity to XXN the person (s 65(4))

Question 26

[maker not available] In relation to FHH admitted under s 65(2)(d) (against W's interests), a representation is "against the interests of the person" if the rep tends to (1) __________ (2) __________ (3) __________

Answer 26

s 65(7)(a) - damages their reputation s 65(7)(b) - shows the person has committed an offence (not convicted of) s 65(7)(c) - shows the person is liable in an action for damages (civil)

Question 27

[maker not available] Accused can adduce FHH from a person or document under which section?

Answer 27

s 65(8)

Question 28

[maker not available] If an accused has adduced FHH under s 65(8) and it has been admitted, can another PARTY adduce ANOTHER representation about that matter?

Answer 28

Yes, if the hearsay is also FHH (s 65(9))

Question 29

Unavailability of persons defined in

Answer 29

the Dictionary (clause 4)

Question 30

Person is unavailable if (7 reasons)

Answer 30

(a) dead (b) not competent (c) mentally/physically unable to give evidence, not reasonably practicable to overcome the inability (d) unlawful for person to give evidence (e) provision of EA prevents the evidence being given (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 (g) all reasonable steps have been taken, by the party seeking prove the person is not available, to compel the person to give the evidence, but without success

Question 31

[maker available] The hearsay rule does not apply if the person who made the representation is available to give evidence AND either: (1) When the representation was made, the occurrence of the asserted fact was: __________ or (2) The person who made the representation is a complainant and was: __________

Answer 31

(1) FRESH in their memory (s 66(2)(b)(i)) or (2) under 18 at the time the representation was made (s 66(2)(b)(ii))

Question 32

Whether an "asserted fact" was "fresh in the memory" of a person (re s 66(2)(b)(i)) - the Ct can take into account ALL matters, including: (a) (b) (c)

Answer 32

(a) NATURE of the event concerned (b) AGE AND HEALTH of the person (c) PERIOD of time elapsed b/w asserted fact and the making of the representation

Question 33

[maker available] One of the 3 factors to be taken into account as to whether an "asserted fact" was "fresh in the memory" includes the __________ of the event concerned

Answer 33

NATURE

Question 34

[maker available] s 66(2A)(b) One of the 3 factors to be taken into account as to whether an "asserted fact" was "fresh in the memory" includes the __________ and __________ of the person

Answer 34

AGE and HEALTH

Question 35

[maker available] One of the 3 factors to be taken into account as to whether an "asserted fact" was "fresh in the memory" includes the p__________ of time between the occurrence of the ____________________ and _________________

Answer 35

period the asserted fact and the making of the representation

Question 36

Hearsay notice to be filed in accordance with s 67 if __________

Answer 36

pros intending to rely on FHH where maker not available

Question 37

s 66A - the hearsay rule does not apply to evidence of a previous representation if it was a CONTEMPORANEOUS statement about the person's H_____, F_____, S_____, I_____, K_____, S_____

Answer 37

Health Feelings Sensations Intention Knowledge State of mind

Question 38

Contemporaneous statements about a person's health, feelings etc are an exception to the hearsay under which section

Answer 38

s 66A

Question 39

s 69 - the hearsay rule does not apply to __________

Answer 39

business records (if made by a person who had or might reasonably be supposed to have personal knowledge of the asserted fact OR on the basis of information supplied by a person with personal knowledge

Question 40

s 69(3)(a) - a business record is not admissible under s 69 if the document was prepared in connection with __________

Answer 40

a legal proceeding (Australian or overseas)

Question 41

s 69(3)(b) - a business record is not admissible under s 69 if the document was prepared in connection with __________

Answer 41

an investigation relating to or leading to a criminal proceeding

Question 42

In relation to the business records exception, a person has knowledge of a fact if that person's knowledge was based on what the person _____, _____, ______ (s 69(5))

Answer 42

saw, heard or otherwise perceived

Question 43

s 70 - the hearsay rule does not apply to the contents of: (1) __________ IF (2) __________ AND (3) for the purpose of __________

Answer 43

(1) tags, labels and writing IF (2) attached/placed in the course of a business AND (3) describing the ID/nature of the doc

Question 44

A tag/label is admissible under the exception in s 70 if it was attached/placed on the object in: (1) the course of a __________ AND for the purpose of (2) describing or stating the __________

Answer 44

(1) business (2) ID/nature, contents of the doc

Question 45

s 71 - the hearsay rule does not apply to __________

Answer 45

electronic communications

Question 46

An ELECTRONIC COMMUNICATION is admissible under the s 71 exception if the representation relates to: (a) (b) (c)

Answer 46

(a) ID of the SENDER (b) DATE/TIME of e/c (c) ID of RECIPIENT (including destination)