Hearsay Flashcards
59 – The hearsay rule: exclusion of hearsay evidence
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 (an ‘asserted fact’).
A ‘representation’ includes both statements and conduct.
The hearsay rule only applies to intentional assertions of fact. Thus, unintended and accidental assertions are not excluded by the hearsay rule and (unless irrelevant / excluded on another basis) will be admissible (s59(1)).
The maker’s intention is to be determined objectively, having regard to the circumstances in which the representation was made (s59(2A)).
60 exception to hearsay rule: evidence relevant for a non-hearsay purpose
The exclusionary 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.
61 – Exceptions to the hearsay rule dependent on competency of maker
The exceptions to the hearsay rule do not allow the use of a previous representation to prove the existence of an asserted fact if, when it was made, the maker was not competent to give evidence about that fact (i.e. under s13(1) Competence – lack of capacity.)
62 FHHS exceptions - restriction to ‘first-hand’ hearsay
First-hand hearsay is evidence of a previous representation made by a person with personal knowledge of an asserted fact.
A person has ‘personal knowledge’ of an asserted fact if their knowledge of the fact was (or might reasonably be supposed to have been) based on something the person saw, heard or otherwise perceived.
CAREFUL: FHHS is limited to “first hand” repetition. The exception does not extend to ‘personal knowledge’ based on a previous representation made by ANOTHER person about a fact (s62(2)).
How to identify FHHS:
- identify the out of court declarant (A), and the in-court reporter (B)
- is the in-court reporter giving evidence about a previous representation made by the out-of-court declarant?
- Did the out-of-court declarant have (or might be reasonably supposed to have had) personal knowledge of the asserted fact (i.e. saw, heard or otherwise perceived something that was NOT a representation of a third party?)
a. If yes, the in-court reporter’s evidence is first hand hearsay
b. If not, the in-court reporter’s evidence is more remote hearsay
63 Exception for FHHS: civil proceedings if maker not available (must give notice!)
Applies in civil proceedings where a maker of a previous representation is not available to give evidence about an asserted fact.
The previous representation must concern a fact within the maker’s personal knowledge.
In such a case, the hearsay rule does not apply to:
- FHHS testimony: evidence of that previous representation given by a person who saw, heard or otherwise perceived it being made; OR
- FHHS in documentary evidence: a document, in so far as it contains the representation or is needed to understand the representation.
Unavailability of persons is defined in the Dictionary:
- the person is dead; or
- the person is, for any reason other than the application of s 16 (Competence and compellability—judges and jurors), not competent to give the evidence; or
- it would be unlawful for the person to give evidence about the fact; or
- a provision of this Act prohibits the evidence being given; or
- the party seeking to prove the person is not available cannot find them, despite all reasonable steps have been taken; or
- the party seeking to prove the person is not available has failed to compel them to give the evidence, despite all reasonable steps have been taken.
NB: A complainant who is too intoxicated to remember making the relevant representations will not be considered ‘unavailable’ as they do not fall within one of the categories of ‘unavailability’ contained in the Dictionary.
NOTE: ALL ADMISSIBLE HEARSAY MUST STILL SATISFY OPINION RULE
64 Exception for FHHS: civil proceedings if maker available (two limbs! give notice!)
S 64 applies in civil proceedings where the maker of a previous representation is available to give evidence about an asserted fact. The previous representation must concern FHHS i.e. a fact within maker’s personal knowledge.
S 64 creates two separate exceptions to the HS rule in such circumstances:
- under s64(2), if it would cause undue expense, undue delay or would not be reasonably practicable to call the maker of the representation, the hearsay rule does not apply to evidence of FHHS, or a document that contains FHHS or is needed to understand the representation (NB: must give notice in advance, and other party can object under s 68)
- under s64(3), if the person who made the representation has been or is to be called to give evidence, the HS rule does not apply to evidence of their own representation given by them, OR a person who saw, heard or otherwise perceived them make that representation.
NB: A party may object to the failure to call a witness on the grounds of undue expense or delay or impracticability (s68). Court will determine whether objection is unreasonable; and may order objecting party to bear costs of calling representation-maker.
NOTE: ALL ADMISSIBLE HEARSAY MUST STILL SATISFY OPINION RULE
66A Exception: contemporaneous statements about a person’s health, intention, knowledge, state of mind 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.
NOTE: ALL ADMISSIBLE HEARSAY MUST STILL SATISFY OPINION RULE
s 67 Notice to be given (all FHHS exceptions)
A party must provide reasonable notice in writing to each other party of its intention to adduce FHHS evidence under one of these sections (ss 63 - 66).
The notice must:
- set out the provisions relied upon and,
- in the case of s64(2) (civ pro - maker available), the specific ground that is relied upon.
68 Objecting to decision not to tender HS evidence in civil proceedings if maker available
If a notice given under s 67 discloses that a party does not intend to call the maker of the previous representation because it would either cause undue expense or delay or not be reasonably practicable, party may object to the tender of all or part of the evidence.
An objection under s 68(1) must be made not later than 21 days after the notice was given.
An objection is made by giving each other party a written notice setting out the grounds on which the objection is made (s68(2)).
Court may, on application of a party, determine the objection at or before the hearing.
If a court determines an objection under s 68 is unreasonable, it may order that the party who made the objection is to bear the costs incurred by another party in relation to the objection and in calling the person who made the representation to give evidence (s68(4)).
69 Hearsay exception for business records
S 69 creates an exception to the hearsay rule for:
1(a): business records that belong to, or are kept by, a person, body or organisation in the course of, or for the purpose of, a business; AND
1(b): documents that contain a previous representation made in the course of, or for the purposes of, the business.
The hearsay rule does not apply to such a document IF it:
2(a): contains a representation made by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact, OR
2(b): was made by a person on the basis of info supplied, directly or indirectly, by someone with personal knowledge of the asserted fact (s69(2)).
NOTE: a statement of OPINION in a business record is not admissible unless it also meets the opinion evidence rule. For example, a business record which contains a lay opinion of a medical diagnosis will not be admissible.
70 Hearsay exception: contents of tags, labels and writing
S 70 creates an exception to the hearsay rule in respect of tags or labels attached to, and to writing placed on, an object (including a document).
The exception applies IF it may reasonably be supposed that the tag, label or writing was attached or placed in the course of business for the purpose of describing or stating the identity, nature, ownership, destination, origin, weight or contents of the object.
71 Hearsay exception: electronic communications
S 71 creates an exception to the hearsay rule in respect of evidence of a representation contained in a document recording an electronic communication insofar as the representation is a representation as to:
- the identity of the person from or on whose behalf the communication was sent;
- the date on which or the time at which the communication was sent; or
- the destination or the identity of the person to whom it was addressed.
