Hearsay

Question 1

Under what Section of the Evidence Act do you find that relevant evidence is admissible?

Answer 1

Section 56 of the Evidence Act. (Section 55 also refers to relevant evidence)

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.

Question 2

What is the hearsay rule and cite the Section?

Answer 2

S59(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.

Question 3

What is a “previous representation”?

Answer 3

Previous representation means a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced.

Question 4

What did Campbell v Hitchcock [2003] NSWIRComm find in relation to the definition of person?

Answer 4

DOES NOT APPLY to machine generated information where there is no human input (ie: CCTV).

Question 5

Where would you find the definition of “Person”?

Answer 5

“Person” is defined in Section 21(1) of the Interpretation Act 1987.

Person includes: an individual, a corporation and a body corporate or politic.

DOES NOT APPLY to machine generated information where there is no human input (ie: CCTV). - Campbell v Hitchcock [2003] NSWIRComm

• Not just a human being

Question 6

What is meant by the term “reasonably supposed”? Is it objective or subjective?

Answer 6

ALRC 102 states that the term “reasonably supposed” is an objective test:

“The test proposed by the Commission in DP69 is external to the maker of the representation. It proceeds on the basis that “intention may properly be inferred from the external and objective manifestations normally taken to signify intention”.

Question 7

Hearsay evidence can be admitted for a non-hearsay purpose (which is an exception to the hearsay rule). Cite the section where “hearsay for a non hearsay purpose” is found?

Answer 7

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 (within the meaning of section 62 (2)).

Note. Subsection (2) was inserted as a response to the decision of the High Court of Australia in Lee v The Queen (1998) 195 CLR 594.

(3) However, this section does not apply in a criminal proceeding to evidence of an admission.

Note. The admission might still be admissible under section 81 as an exception to the hearsay rule if it is “first-hand” hearsay: see section 82.

Question 8

Where is the definition of “Unavailability of Persons” and who does it include?

Answer 8

In the Dictionary of the Evidence Act, Clause 4 Part 2.

4 Unavailability of persons

(1) For the purposes of this Act, a person is taken not to be available to give evidence about a fact if:
(a) the person is dead, or
(b) not competent (other than section 16), or
(c) the person is mentally or physically unable to give the evidence and it is not reasonably practicable to overcome that inability, 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.
(2) In all other cases the person is taken to be available to give evidence about the fact.

Question 9

Section 65(2) states that the hearsay rule does not apply if maker is unavailable and:

Answer 9

(a) maker was under a DUTY; or
(b) made shortly after the event and in circumstances where it is unlikely to be a fabrication, or
(c) made in circumstances that make it highly probable that it was reliable; or

(d) (1) was against the interests of the person who made it a the time it was made AND
(d) (2) made in circumstances which make it likely that the representation was reliable.

Question 10

For a previous representation to be admissible when the maker is unavailable (Section 65) you must meet ALL 4 criteria (not just 1). What are the criteria?

Answer 10

1. Establish the witness is unavailable in accordance with the dictionary definition; AND
2. Notice must be provided in accordance with Section 67. AND
3. One of the criteria set out in S65(2) is met; AND
4. Establish that the hearsay was perceived first hand.

Question 11

Section 66 is an exception to the hearsay rule. What does Section 66 provide?

Answer 11

Section 66 - Maker available.

(1) Applies to persons who made a previous representation and is available to give evidence in a criminal proceeding about an asserted fact.
(2) Hearsay does not apply to evidence of the witness of the representation that is given by:
(a) . that person; or
(b) a person who saw, heard or otherwise perceived the representation being made, if, when the representation was being made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation.

Question 12

R v Graham is caselaw relating to “fresh in the memory” regarding: maker available. This was appealed to the high court and in response was then codified. What Section relates to “Fresh in Memory”?

Answer 12

Section 66 (2A) now overrides that case.

(2A) In determining whether the occurrence of the asserted fact was fresh in the memory of a person, the court may take into account all matters that it considers are relevant to the question, including:

(a) the nature of the event concerned, and
(b) the age and health of the person, and
(c) the period of time between the occurrence of the asserted fact and the making of the representation.

Question 13

What is a “representation”?

Answer 13

Representation includes:

(a) an express or implied representation whether oral or in writing, or
(b) a representation to be inferred from conduct, or
(c) a representation not not intended by its maker to be communicated to or seen by another person, or
(d) a representation that for any reason is not communicated.

Question 14

Section 62 relates to first hand hearsay. What is first hand hearsay?

Answer 14

“First-hand” hearsay is when a person gives evidence about a previous has personal knowledge of the asserted fact if his or her knowledge of the fact was, or might reasonably be supposed to have been, based on something that they saw, heard or otherwise perceived, other than a previous representation made by another person about the fact .

(3) For the purposes of section 66A, a person has personal knowledge of the asserted fact if it is a fact about the person’s health, feelings, sensations, intention, knowledge or state of mind at the time the representation referred to in that section was made.

Question 15

Once hearsay is admitted for a non hearsay purpose is it admitted for everything?

Answer 15

Yes - it can then be used for it’s hearsay purpose

Question 16

Section 65 of the Evidence Act is an exception to the Hearsay rule if the Maker of the previous representation is unavailable. Describe.

Answer 16

65(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 that is given by a person who saw, heard or otherwise perceived the representation being made, (ie: FIRST HAND) if the representation:
(a) was made under a duty to make that representation or to make representations of that kind, or
(b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, or
(c) was made in circumstances that make it highly probable that the representation is reliable, or

Note. Section 67 imposes notice requirements relating to this subsection.

(3) The hearsay rule does not apply to evidence of a previous representation made in the course of giving evidence in an Australian or overseas proceeding if, in that proceeding, the defendant in the proceeding to which this section is being applied:
(a) cross-examined the person who made the representation about it, or
(b) had a reasonable opportunity to cross-examine the person who made the representation about it.

• Note. Section 67 imposes notice requirements relating to this subsection.
• Note. Clause 4 of Part 2 of the Dictionary is about the availability of persons.

Question 17

Section 67 of the Evidence Act imposes notice requirements relating to Section 65. What does Section 67 require of the prosecution.

Answer 17

(1) Sections 65 (2), (3) and (8) do not apply to evidence adduced by a party unless that party has given reasonable notice in writing to each other party of the party’s intention to adduce the evidence.
(4) Despite subsection (1), if notice has not been given, the court may, on the application of a party, direct that one or more of those subsections is to apply despite the party’s failure to give notice.

Question 18

Clause 4 of Part 2 of the Dictionary of the Evidence Act is where the unavailability of persons is defined. Under what circumstances is a person “unavailable”?

Answer 18

For the purposes of this Act, a person is taken not to be available to give evidence about a fact if:
(a) the person is dead, or

(b) the person isnot competent to give the evidence, or
(c) the person is mentally or physically unable to give the evidence and it is not reasonably practicable to overcome that inability, 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.
(2) In all other cases the person is taken to be available to give evidence about the fact.

Question 19

Where in the Evidence Act are the unavailability of persons defined?

Answer 19

Clause 4 of Part 2 of the Dictionary of the Evidence Act.

Question 20

For previous representations to be admissible under Section 65, what are the 4 elements that MUST be satisfied? (must have all 4).

Answer 20

1. You must establish that the witness is unavailable in accordance with the criteria of “unavailable” set out in Clause 4 Part 2 of the Dictionary; AND
2. Notice has been provided in accordance with Section 67; AND
3. One of the criteria set out in Section 65(2) is met; AND
4. Establish that the hearsay was perceived first-hand.

Question 21

Section 66 of the Evidence Act is an exception to the Hearsay rule if the Maker of the previous representation is available to give evidence. Describe.

Answer 21

66(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.

(2) If that person has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by:
(a) that person, or
(b) a person who saw, heard or otherwise perceived the representation being made,

if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation.

Question 22

Subsection (2A) of Section 66 was inserted as a response to the decision of sthe High Court$ of Australia in Graham v The Queen. What does 66(2)A relate to?

Answer 22

Section 66(2A) relates to determining whether the occurrence of an asserted fact was fresh in the memory of a person. It states that the court may take into account all matters that it considers are relevant to the question, including:

(a) the nature of the event concerned, and
(b) the age and health of the person, and
(c) the period of time between the occurrence of the asserted fact and the making of the representation.

Question 23

For previous representations to be admissible under Section 66, what are the 5 elements that MUST be satisfied? (must have all 5).

Answer 23

1. You must establish that the witness is available; AND
2. Witness WILL be called to give evidence; AND
3. The evidence will be about a person, place or thing; AND
4. The evidence is “fresh in the memory”; AND
5. Establish that the hearsay was perceived first-hand.

Question 24

The case of R v Graham is caselaw relating to what? What Section of the Evidence Act now overrides R v Graham?e

Answer 24

R v Graham (1998) stated:

“Although questions of fact and degree may arise, the temporal relationship required will very likely be measured in hours or days, not, as it was the case here in years”.

Relates to an asserted fact being fresh in the memory.
Section 66(2)(A) now overrides Graham

Question 25

What does Section 70 of the Evidence Act relate to?

Answer 25

Section 70 is an exception to the hearsay rule in relation to contents of tags, labels and writing

The hearsay rule does not apply to a tag or label attached to, or writing placed on, an object (including a document) if the tag or label or writing may reasonably be supposed to have been so attached or placed:

(a) in the course of a business, and
(b) 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.

Question 26

What does Section 71 of the Evidence Act relate to?

Answer 26

Section 71 is an exception to the hearsay rule in relation to electronic communications it states:

The hearsay rule does not apply to a representation contained in a document recording an electronic communication so far as the representation is a representation as to:

(a) the identity of the person from whom or on whose behalf the communication was sent, or

(b) the date on which or the time at which the communication was sent, or
(c) the destination of the communication or the identity of the person to whom the communication was addressed.

Question 27

What does Section 66A of the Evidence Act relate to?

Answer 27

Section 66A is an exception to the hearsay rule in relation to contemporaneous statements about a person’s health etc - it states:

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.

Question 28

Does the court have the power to limit the use that can be made of a previous representation once it has been admitted?

Answer 28

Yes. Section 136 of the Evidence Act allows the Court to limit evidence if there is a danger that a particular use of that evidence might:

(a) be unfairly prejudicial, or
(b) be misleading or confusing.
* must be on application made by the Defence to limit the evidence.

Question 29

What does Section 66(2)A of the Evidence Act relate to?

Answer 29

Section 66(2A) relates to how a court determines whether an asserted fact was fresh in the memory of a person. It states:

(2A) In determining whether the occurrence of the asserted fact was fresh in the memory of a person, the court may take into account all matters that it considers are relevant to the question, including:

(a) the nature of the event concerned, and
(b) the age and health of the person, and
(c) the period of time between the occurrence of the asserted fact and the making of the representation.

Question 30

On what Standard of proof do we have to prove “unavailable”?

Answer 30

On the balance of probabilities

Question 31

Why is there a hearsay rule?

Answer 31

For fairness. It allows evidence to be tested/properly challenged. To ensure greater accuracy of information.

Question 32

If maker unavailable, what are the 4 criteria that need to be established under 65(2) to allow the evidence?

Answer 32

(a) duty
(b) made shortly after the asserted fact occurred and in circumstances that make it unlikely to be a fabrication
(c) made in circumstances that make it highly probable
(d) was:
(i) against the interests of the person who made it at the time; and
(ii) made in circumstances that make it likely that the representation is reliable.

Question 33

What is hearsay?

Answer 33

Hearsay is a statement or a previous representation made out of court or not in the course of giving evidence.

Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that can reasonably be supposed the maker of the previous representation intended to assert.

Question 34

What Section of the Evidence Act relates to relevant evidence?

Answer 34

Section 55

Question 35

What Section of the Evidence Act do you find the standard of proof for the balance of probabilities?

Answer 35

Section 142

Question 36

Section 65(2) relates to maker unavailable. Sections 62-68 (of which 65(2) falls under is restricted to what type of hearsay?

Answer 36

First hand hearsay

Question 37

35

Answer 37

35