Part 3.2 - Hearsay Flashcards
Summary = hearsay
- Is it hearsay?
a. 59(1) If yes → inadmissible - Unless an exception applies:
a. At large:
i. 60 Relevant and admitted for a non-hearsay purpose
b. Restricted to FHH:
i. 63 Civil not available
ii. 64 Civil available
iii. 65 Crim not available
iv. 66 Crim available
v. 66A Contemporaneous statement about health etc.
c. Div 3 — not restricted to FHH
i. 69 Business records
ii. 70 Contents of tags, labels etc
iii. 71 Electronic communications
iv. 72 ATSI laws and customs
v. 73 Reputation as to relationship and age
vi. 74 Reputation of public or general rights
vii. 75 Interlocutory proceedings
59 The hearsay rule—exclusion of hearsay evidence
S59(1) Hearsay evidence is prima facie inadmissible: “evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can be reasonably supposed that the person intended to assert by the representation”
(2A) For the purpose of determining whether “it can be reasonably supposed that the person intended to assert a particular fact by the representation, the court may have regard to the circumstances in which the representation was made.”
Hearsay cheat sheet - PMAIP
1.Is there a previous representation – out of Court declaration (PR)?
Means representation made otherwise than in the course of giving evidence in the proceeding and includes
(a) Express or implied R (whether oral or in writing)
(b) R inferred from conduct
(c) R not intended by its maker to be communicated or seen by any other person (eg, dear diary)
(d) R that for any reason is not communicated.
2.Was the PR made by a person?
3.Did the PR contain an asserted fact?
4.Did the maker of the PR intend to assert that fact?
a. Can it be reasonably supposed they intended to assert the fact, objectively, in light of surrounding circumstances?
5.Is evidence of the PR being used to prove the truth of the asserted fact (the sticking point – are you using the words themselves? Or something else)?
Next question
Who is the PR being sought to be adduced through (who is the in court reporter – the maker, someone else, a document)?
Common examples of not hearsay purpose
● Verbal facts e.g. oral terms of a K to prove what the contract is
● Relevant to D’s state of mind e.g. Subramanian
● In an action for defamation, evidence of representation to prove contents of the alleged agreement
● Evidence alleged to be a lie and so evidence of consciousness of guilt
S60 Evidence relevant and admitted for a non-hearsay purpose
(1) Does not apply to evidence of a PR that is admitted because it is relevant for a purpose other than proof of an asserted fact Is it relevant for another purpose? If yes, assume admissible unless a hurdle applies
(2) Applies whether or not it’s personal hearsay (ie, whether or not the person who made the representation had personal knowledge of the asserted fact)
(3) does not apply in crim proceeding to evidence of admission
Eg, prior inconsistent statements, prior consistent statements, lay opinions
Original evidence – not to prove truth of statement, but fact statement made
Esoteric evidence – state of mind
If risk of use for hearsay purpose – consider s 136
S61 Exceptions to hearsay dependent on competency
(1) This Part does not enable use of hearsay representations where the maker was not competent when the PR was made because of s 13(1)
(2) But this doesn’t apply to a contemporaneous statement about health, feelings, sensations, intention, knowledge or state of mind (cf s 66A)
(3) competence presumed unless proved to contrary
Unavailable defined in dictionary at s 4. Does not include people who are simply not compellable.
Dictionary (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;
(b) the person is, for any reason other than the application of section 16 (Competence and compellability: judges and jurors), not 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.
S62 Restriction to first-hand hearsay (what I call personal hearsay)
(1) A reference in this Division (other than in subsection (2)) to a PR is a reference to a PR that was made by a person who had personal knowledge of an asserted fact.
(2) A person 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 the person saw, heard or otherwise perceived, other than a PR 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.
63(1) Civil — maker of PH not available *notice per s 67
(2) Hearsay rule does not apply to PH i.e. PH evidence OF that PH is admissible
(2) (a) evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made
(2) (b) a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation.
64(1) — Civil maker available
If maker is not called *notice w/ grounds
(2) hearsay rule does not apply to (a) person who perceived the PR (ie, PH or PH) (2)(b) document containing the PR (eg, police statement), PH is admissible
IF it would cause undue expense or undue delay, or would not be reasonably practicable, to call the maker of the representation.
If maker is called
(3) If the maker has been or is to be called, the hearsay evidence can be given by the (a) maker or (b) by another person who saw, heard or perceived the representation being made (PH of the PH) (eg, to allow witness to narrate of their own complaints) (FHH).
(4) Document containing a representation to which subsection (3) applies must not be tendered before the conclusion of the examination in chief of the person who made the representation, unless the court gives leave.
S68 Objections to tender of hearsay evidence in civil proceedings if maker available
● (1)(a)-(b) If notice given re: intention to not call and adduce the hearsay evidence from the maker, within 21 days can make an objection wholly or partly – (2) objection is written and sets out grounds on which objection is made.
● (3) Court then determines at or before the hearing and (4) if the objection is unreasonable, court may order, in any event, that the party objecting is to bear the costs incurred by another party (a) in relation to the objection and (b) in calling the person who gave evidence.
65 — (1) Crimproc: maker of PR not available to give evidence about asserted fact
General *notice (s 67)
(2) PH is admissible (through PH of the PH) if the representation (ie, the original PH):
(a) Was made under duty to make that representation or representations of that kind;
(b) Was made when or shortly after the asserted fact occurred AND in circumstances that make it unlikely that the representation is a fabrication
(c) Was made in circumstances that make it highly probable representation is reliable
(d) Was both (i) against the interests of the person who made it at the time it was made AND (ii) made in circumstances that make it likely that representation reliable.
W/o limiting, taken to be against interests if tends to (7):
(a) Damage person’s reputation
(b) Show person had committed off for which hasn’t been convicted
(c) Show person is liable in an action for damages
Hearsay representations made in Australian or OS proceedings *notice (s 67)
(3) PH is admissible if in that (earlier) proceeding the current accused:
(a) Cross-examined the maker; or
(b) Had a reasonable opportunity to cross-examine the maker.
(4)(a)-(b) If there is more than one accused, that hearsay evidence cannot be used against an A who did not x-examine the maker/have a reas. Opp. to do so in the earlier proceeding. For these purposes:
(5) taken to have had a reasonable opportunity if they were not present when x-exam could have been conducted but (a) they could reasonably have been present (b) if present could have done so.
(6) Can adduce this evidence by producing transcript or recording that is authenticated (a)-(c)
Evidence adduced by the accused *notice (s 67)
(8) PH is admissible if adduced by the accused → (a) person who saw heard etc rep being made (PH of PH) (b) or a document tendered as evidence by an accused so far as it contains a PR, or another representation to which it is reasonably necessary to refer in order to understand the representation
(9)(a)(b) TIT for TAT → Prostr (or another party) can then also adduce FHH evidence re: that same matter.
66(1) Criminal — maker available – NB does not let document be handed up
General (maker called and fresh in memory or victim u/18)
(2) PH evidence is admissible from the maker or PH of the maker if (a) the person who made the representation has been or is to be called to give evidence AND either:
● (b)(i) When rep was made (ie, not at the time of court proceeding), occurrence of the asserted fact was fresh in the memory of the maker; or
○ (2A) Court may take into account:
■ (a) Nature of event that occurred
■ (b) Age and health of person
■ (c) Period of time between occurrence and the rep being made
● (b)(ii) Maker is a victim of an offence to which the proceeding relates and was under the age of 18 when the representation was made.
**(4) document containing a rep to which this exception applies must not be tendered before the conclusion of EIC of the maker, unless the court gives leave.
Evidence given to indicate evidence that could be given at trial (e.g. police statement)
(3) If a representation was made for the purpose of indicating the evidence that the person who made it would be able to give in an Australian or overseas proceeding, subsection (2) does not apply to evidence adduced by the prosecutor of the representation unless the representation concerns the identity of a person, place or thing.
66A — Contemporaneous statements about health 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.
