Hearsay Flashcards
Where is person defined for hearsay?
S 21 Interpretation Act 1987
How is person defined for Hearsay?
Person includes an individual, corporation and a body corporate or politic. It does not apply to machine generated information where no human input.
Computer generated information with no human input case?
Campbell v Hitchcock 2003
Not hearsay.
s 60 Evidence Act?
Exception rule, evidence admissible for a non hearsay purpose.
s 60 (1)?
Hearsay rule does not apply to evidence of a previous represenation that is admitted because it is relevant for a purpose other than proof of an asserted fact.
60 (2)?
Section applies whether or not person who made represenation had personal knowledge of asserted fact.
60 (3)?
Does not apply to evidence of an admission in a Criminal Hearing.
What happens to evidence if it is in for non-hearsay purpose?
It can be used for it’s hearsay purpose, i.e as evidence of the fact.
s 65?
Maker not available.
Definition of maker not available and where it is found?
Clause 4, Part 2, Dictionary. a - Dead b - Not competent (other than s16) c - Mentally or physically unable d - Unlawful e - Prohibited under Evidence Act f - All reasonable steps taken to secure attendance w/o success g - all reasonable steps taken to compel person w/o success.
Standard of proof to determine whether person is unavilable?
Balance of proabilities as per S142.
S62?
Previous representation under division 2, (maker available or not available) etc, refers to first hand hearsay.
S 67?
(1) Reasonable notice in writing must be given to other party if maker unavailable.
67 (2)?
Notices given under (1) must be given in accordance with rules of court for this section.
67 (3)?
Notice must state;
a - Particular provisions of this division on which party intends to rely in arguing that the hearsay rule does not apply to the evidence.
67 (4)?
If notice not given, Court may, on application of party, direct that one or more of those subsections is to apply despite the party’s failure to give notice. 14-21 days. Can be done on morning if situation arises.
Recap on Previous representation S65
- Establish witness unavailable as per dictionary definition
- Notice provided under 67
- One of criteria under 65 (2) met
- Establish hearsay perceived first hand.
65 (2) criteria?
- representation made under duty
- was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, or
- Made in circumstances that make it highly reliable.
S 66 (1)?
Maker available
Applies to person who made previous represenation and avilable to give evidence.
66 (2)?
If person has been, or is to be called to give evidence, Hearsay rule does not apply to evidence of the representation given by;
a - That person
b - a person who percevived first hand that representation, if, when it was made, was fresh in memory of person who made represenation.
66 (2) b example?
Trent saw something. Told Matt 15 min later. Matt can give evidence of what Trent said.
S 66 (2A)
Fresh in memory, court may take into consideration anything relevant, including;
a - Nature of event and
b - Age and health of person, and;
c - Period of time between ocurrence of asserted fact and making of representation.
R v Graham?
Tells us time in relation to 66 should be measured in hours or days. Trumped by 2A.
R v Gilbert Adam
A statement made 7 weeks after and event is not one considered outside period of fresh in memory.
Trumps R v Graham, should take into consideration circumstances of case.
S70?
Hearsay doesn’t apply to tags, labels, writing on object if;
a - Reasonably supposed to have been placed on in course of business AND
b - For purpose of describing or stating identity, nature, ownership, destination, origin or weight or contents of object.
66 (3)?
Hearsay for maker available can only oncern a person, place or thing.
s55?
Relevant evidence.
Evidence is relevant if it is accepted, it could rationally affect, the assessment of the probablity of the existence of a fact in issue in the proceeding.
S 56?
Relevant evidence is admissible.
Exceot as otherwise provided by this act, relevant evidence is admissible.
