The
Rule Against Hearsay
John Stratton SC
Deputy Senior Public Defender
November
2007
Introduction
The rule against hearsay is one of the
most fundamental rules of evidence. Under the Evidence Act, the
exceptions to the hearsay rule have become so significant as to virtually swamp
the original rule. This paper is intended to summarise the present case law and
statutory provisions about hearsay and the exceptions to it.
At the end
of this paper, for ease of reference, I have set out the relevant provisions of
the Evidence Act dealing with the rule against hearsay.
The
rule against hearsay
The rule against hearsay is set out in s. 59 (1)
of the Evidence Act in the following terms:
(1) Evidence of a previous representation made by
a person is not admissible to prove the existence of a fact that the person
intended to assert by the representation.
The use of the expression ‘representation’ in the Evidence Act has
not been a particularly helpful innovation. For all intents and purposes, you
can substitute the word ‘statement’ for the word ‘representation’.
The
Evidence Act formulation of the rule against hearsay does not appear to
be significantly different from the common law understanding of the general
rule, that a statement of a person made to a witness is admissible for the
purpose of proving that the words were said, but not in order to prove that the
statement was true: Subramaniam v Public Prosecutor [1956] 1 WLR
965.
The best way to think about the hearsay rule is to have in mind
concrete examples. If a bank teller in an armed robbery case gives evidence that
the bank robber said ‘Hand over your money or I will kill you’, the evidence is
not led in order to prove anything which the bank robber was trying to assert as
true. The evidence is being led in order to prove that the words were uttered,
which go to proving that a robbery was committed.
However if the bank
teller alleges that an acquaintance told him ‘The Smith boys did that stick up’,
it would be hearsay for the bank teller to give evidence of that
conversation.
The distinction is sometimes described this way. In the
first case, all the bank teller is intending to assert is that he heard the
words spoken. The significance of the evidence is the fact that the words were
said.
In the second case, the acquaintance of the bank teller is
intending to assert that the statement ‘The Smith boys did that stick up’ is
true. That evidence is prima facie inadmissible under the hearsay
rule.
The scheme of exceptions to the hearsay rule
The
primary exceptions to the hearsay rule appear in ss. 63-66 of the Evidence
Act. The exceptions can be thought of this way:
Unavailable witness Available witness
Section 63: Civil proceedings,
witness unavailable | Section 64: Civil proceedings,
witness available |
Section 65: Criminal proceedings,
witness unavailable | Section 66: Criminal proceedings,
witness available |
It is important to note that all these exceptions are limited to
first hand hearsay: s. 62 Evidence Act.
Unavailable
witnesses
The expression ‘unavailable witness’ is therefore critical
where questions of the admissibility of potentially hearsay evidence is
involved.
According to the Dictionary to the Evidence Act, a
person is to be taken to be unavailable to give evidence about a particular fact
if:
(a) the person is dead, or
(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 about the
fact, or
(c) it would be unlawful for the person to give evidence about the
fact, or
(d) a provision of this Act prohibits the evidence being given,
or
(e) all reasonable steps have been taken, by the party seeking to prove
the person is not available, to find the person or to secure his or her
attendance, but without success, or
(f) 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.
It has been held that where a witness refuses to give evidence, he is an
unavailable witness: Regina v Suteski (2002) 56 NSWLR 182. This is a
decision of great practical significance for criminal lawyers. It means that if
an offender in a crime has made a record of interview inculpating both himself
and his co-accused, his record of interview may be admissible in the trial of
his co-accused if he refuses to give evidence. Similarly if a former co-accused,
who has given evidence in an earlier trial, refuses to give evidence, he is an
unavailable witness, and his evidence in the earlier trial can be tendered in
the subsequent trial: Regina v Taber and Styman [2007] NSWCCA
117.
A witness who cannot remember an incident (for example because of
brain damage) is not an unavailable witness: Regina v Brown, Barwick and
Brown [2006] NSWCCA 69.
Section 63: Civil proceedings, witness
unavailable
In civil proceedings, a witness who saw or heard a
representation about an asserted fact being made by an unavailable witness may
give evidence of that representation. A document containing a written
representation of an unavailable witness is also admissible: s. 63 Evidence
Act. The unavailable witness must be a person who saw, heard or otherwise
perceived the asserted fact: s. 62 Evidence Act.
To take advantage
of this exception, a party to proceedings must give notice to the other parties
in the proceedings: s. 67(1) Evidence Act, discussed below. Any of the
other parties to the proceedings may serve a notice of objection not later than
21 days after the notice of intention to tender the evidence was served: s. 68
(1) Evidence Act. The court can determine the objection at or before the
hearing: s. 68(2) Evidence Act.
Section 64: Civil
proceedings, witness available
In civil proceedings, a witness who
saw or heard a representation made by a witness, can give evidence of seeing or
hearing that representation, and a document containing such a representation
will be admissible, if it would cause undue expense, or undue delay, or it would
not be reasonably practicable, to call the witness (s. 64(2) Evidence
Act). The representation which was witnessed must be made by a person who
saw, heard or otherwise perceived an asserted fact: s. 62 Evidence
Act.
To take advantage of this exception, a party to proceedings must
give notice to the other parties in the proceedings: s. 67(1) Evidence
Act, discussed below. Any of the other parties to the proceedings may serve
a notice of objection not later than 21 days after the notice of intention to
tender the evidence was served: s. 68 (1) Evidence Act. The court can
determine the objection at or before the hearing: s. 68(2) Evidence
Act.
If a witness has or will be called to give evidence about an
asserted fact that he saw, heard or otherwise perceived, evidence can be given
of that representation both by that witness, or by a person who saw or heard the
representation, if the occurrence of the asserted fact was ‘fresh in the memory’
of the person who made the representation (s. 64(3) Evidence Act). The
meaning of that phrase is discussed below. A submission that ‘fresh in the
memory’ in the context of s. 64 is restricted to something like a spontaneous
utterance which would be part of the res gestae was rejected in Commonwealth
v McLean (1997) 41 NSWLR 389 at 400.
Section 65: Criminal
proceedings, maker unavailable, called by prosecution
First hand
hearsay tendered by the prosecution is admissible if the maker is unavailable
and:
(a) the maker was under a duty to make the
representation
(b) the representation was made shortly after the event and in
circumstances where fabrication is unlikely
(c) it was made in circumstances
that make it highly probable that it was reliable or
(d) was against the
interests of the person who made it s. 65 (2) Evidence Act.
As to paragraph (a), this paragraph reflects the common law exception to
the hearsay rule for people who have a legal duty to record information. An
example might be a person who has a duty to record the times a ship enters or
leaves a harbour.
As to paragraph (b), because this paragraph is
concerned with the risk of concoction, rather than the witness being honestly
mistaken, the question of 'freshness' in the witness' mind is irrelevant:
Regina v Williams (2000) 119 A Crim R 490. The representation must have
been made spontaneously during or under the proximate pressure of (shortly
after) the occurrence of the asserted fact: Williams at para [48]. The
Full Federal Court held that a statement made 5 days after the asserted fact
could not be said to be made 'shortly after the event': Williams at para
[49]. However in Regina v Harris [2005] NSWCCA 432 it was held that a
statement made to police 24 hours after the event was 'shortly after' the
event.
In relation to both paragraph (b) and (c) the 'circumstances' of
the representation must be considered. Different approaches have been taken to
this phrase. In Regina v Mankotia [1998] NSWSC 295 Sperling J said
'circumstances' was restricted to the circumstances in which the representation
was made, and other circumstances, such as other representations made by the
same person, on other occasions, could not be taken into account. A similar
approach was taken in Regina v Jang [1999] NSWSC 1040. However the Full
Federal Court in Williams said that the 'circumstances' meant all the
circumstances in which the statement was made, including consistency with other
evidence in the case, and evidence of what the maker of the representation said
on other occasions. The NSW CCA has held that although only the circumstances of
the representation are relevant, these include other consistent and inconsistent
representations of the person who made the representation: Regina v
Ambrosoli (2002) 55 NSWLR 603.
As to paragraph (c), the Full Federal
Court has described the requirement that the court be satisfied that the
representation was made in 'circumstances that make it highly likely that it was
reliable' as 'onerous' (Williams at para [55]).
In relation to
paragraph (d), an inculpatory ERISP of an alleged co-offender has been held to
be 'against the interests of the person who made it at the time it was made',
and as a result admissible under s. 65(2) (d): Regina v Suteski (2002) 56
NSWLR 182. This section only permits evidence of representations by the maker
himself, not second hand hearsay: Regina v Eastman (SC ACT 10/8/95),
Lee v The Queen (1998) 195 CLR 594.
Evidence of a witness given in
earlier proceedings is admissible if the accused cross-examined the witness or
had an opportunity to cross-examine that witness in those earlier proceedings,
under s. 65 (3). As a result, evidence of a former co-accused in an earlier
trial may be admissible under s. 65 (3): Regina v Taber and Styman [2007]
NSWCCA 116.
There must be reasonable notice in writing of the intention
to call hearsay evidence under s. 65: s. 67 Evidence Act. As to the
requirements of the notice see reg 5 of the Evidence
Regulations
Section 65 (8): Criminal Proceedings: Maker
unavailable: Hearsay Called By Defence.
The defence in criminal
proceedings can call first-hand oral or written hearsay when the maker is
unavailable: s. 65(8) Evidence Act. If this is done, first hand hearsay
evidence can be admitted by other parties on the same topic: s. 65 (9)
Evidence Act.
Such evidence is not limited to other
representations of the same unavailable witness: Eastman v The Queen
(1997) 76 FCR 9 at 80. The requirements of s.65 (2) (see paragraph above) do not
apply to evidence led under s. 65(8) or s. 65(9): Regina v Mrish (Hidden
J 4/10/96), Regina v Elms [2004] NSWCCA 467 at para [36]. There must be
reasonable notice in writing of the intention to call evidence under s. 65(8):
s. 67 Evidence Act.
Section 66: Criminal proceedings, maker
available
Where a witness is called to give evidence in a criminal
trial, the hearsay rule does not apply to evidence of a representation of that
witness (whether that evidence is given by that witness or by another person) if
the occurrence of the asserted fact was ‘fresh in the memory’ of the person who
made the representation: s. 66(1) Evidence Act. This provision is a
dramatic broadening of the common law exception to the hearsay rule which in
limited circumstances permitted evidence of the ‘complaint’ by an alleged victim
of sexual assault to be given. Under this provision, the common law exception
has subsumed the general rule that a witness's prior consistent statement is not
admissible.
The meaning of the crucial phrase ‘fresh in the memory’ is
discussed below.
This provision does not apply to a ‘representation ...
made for the purpose of indicating the evidence that the person would be able to
give in an Australian or overseas proceeding’ (for example, the witness’s
statement to police) unless the representation is about the identification of a
person, object or thing: s. 66(3). This reflects the common law position that
evidence of a prior act of identification was admissible: see Alexander v The
Queen (1981) 145 CLR 395.
The meaning of the expression
‘representation ... made for the purpose of indicating the evidence that the
person would be able to give in an Australian or overseas proceeding’ was
considered in Regina v Esposito (1995) 45 NSWLR 442. In that case it was
held that an ‘electronically recorded interview with a suspected person’ (ERISP)
with a witness who clearly indicated that he was prepared to give evidence
against the appellant fell within the definition of s. 66(3) and should not have
been admitted. Justice Wood was of the view that had the ERISP simply been an
interview by police of a suspect, the ERISP would have been
admissible.
Section 66 is available to the defence as well as the
prosecution, so the defendant is entitled to call evidence that when the alleged
offence was ‘fresh in his memory’ he protested his innocence: Regina v
Crisologo (1997) 99 A Crim R 178.
Fresh in the
Memory
As discussed above, in both civil and criminal proceedings,
for a previous representation of an available witness to be admissible, it is
necessary to establish that the occurrence of the asserted fact be ‘fresh in the
memory’ of the person who made the representation. The concept of ‘freshness’
was given an extremely wide connotation by the NSW Court of Criminal Appeal. The
high water mark was probably the decision of Regina v Graham (NSW CCA
unreported 2/9/97, (1997) 4 Crim LN [739]). That was an appeal arising from a
ruling made in a trial. The appellant had been convicted of three counts of
sexual intercourse without consent and three charges of indecent assault. The
incidents occurred when the complainant, the appellant's daughter, was 9 or 10
years old. The first complaint was made nearly seven years after the incidents.
That evidence was admitted as first hand hearsay under s. 66. The appeal was
dismissed. Justice Levine, with whom the other judges agreed, said:
Shortly stated, common sense would seem to
indicate that the notion of "freshness" particularly in this area of the law is
not anchored to nor determined by simply notions of the "lapse of time". It is
concerned with, in my opinion, the "quality" of the memory. A person might never
forget the details of an event many years previously because it took place in
circumstances which impressed it into the witness' memory (p. 23).
This approach might be referred to as the ‘snap-frozen’ approach to
freshness. An appeal was lodged to the High Court. The High Court unanimously
allowed the appeal: Graham v The Queen (1998) 195 CLR 606. The High Court
unanimously rejected the interpretation of this phrase which found favour in the
NSW Court of Criminal Appeal. In a joint judgment, Gaudron, Gummow and Hayne JJ
said (at 608):
The word "fresh", in its context in s 66, means
"recent" or "immediate". It may also carry with it a connotation that describes
the quality of the memory (as being "not deteriorated or changed by lapse of
time") but the core of the meaning intended, is to describe the temporal
relationship between "the occurrence of the asserted fact" and the time of
making the representation. Although questions of fact and degree may arise, the
temporal relationship required will very likely be measured in hours or days,
not, as was the case here, in years.
Callinan J, with whom Gleeson CJ agreed, said (at 614):
There may be cases in which evidence of an event
relatively remote in time will be admissible pursuant to s 66, but such cases
will necessarily be relatively rare and requiring of some special circumstance
or feature.
Callinan J cited the practical problems which might arise if the approach
taken by the NSW Court of Criminal Appeal was adopted. He said that it was
desirable to give the construction of s. 66 which he proposed 'not only for
certainty but also to avoid as much as possible the delay and expense of voir
dire hearings to explore questions of vividness and the like, with their
attendant opportunities for rehearsal of cross-examination and evidence ' (at
614-5).
In cases decided after Graham v The Queen, the NSW Court
of Criminal Appeal has continued to take a view of the phrase ‘fresh in the
memory’ which is more expansive than that suggested in Graham v The
Queen. In Regina v Gilbert Adam (1999) 47 NSWLR 267 the Court of
Criminal Appeal said that a view expressed by the trial judge that s statement
made 7 weeks after the event was still ‘fresh in the memory’ had ‘much to
commend it’ (at 281-2, para [133])
It has been held that if there is a
continuous course of conduct leading to a final contemporaneous complaint,
complaint about the whole course of conduct is admissible: Regina v Vinh
Le [2000] NSWCCA 49. More recently, it has been held that a complaint made
66 days after the event may be still 'fresh in the memory': Regina v
Skipworth [2006] NSWCCA 37.
The NSW CCA has held that evidence of
contemporaneous or near contemporaneous complaints will be ordinarily admitted
as evidence of the fact (s. 60 Evidence Act), and the use by the jury
will not be limited by use of s. 136 Evidence Act: Regina v BD
(1997) 94 A Crim R 131 (nb strong dissent by Smart J). The High Court has
rejected a challenge to this decision in Papakosmas v The Queen (1999)
196 CLR 297.
It is not necessary to specifically direct the jury that
'complaint' is evidence of the fact because they would assume that was the case:
Regina v Hilder (1997) 70 A Crim R 70.
Section 60 Evidence
Act: hearsay rule does not apply to evidence admitted for a non-hearsay
purpose
Section 60 of the Evidence Act is probably the most
ill conceived provision of the entire Act. It reads as follows:
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 the fact intended to be asserted by the representation.
The effect of s. 60 is that if a representation (statement) is admitted
into evidence for a non-hearsay purpose, it then becomes relevant for all
purposes, including the truth of the statement.
This provision has had
enormous ramifications in a number of areas.
Evidence of prior
consistent statements of a witness, may be admitted under s. 64 (in civil
proceedings) or under s. 66 (in criminal proceedings). At common law, evidence
of ‘complaint’ was admissible only in very confined circumstances, and evidence
of complaint could not be used as evidence that the complaint was true, but only
to bolster the credit of the witness: see for example Kilby v The Queen
(1973) 129 CLR 460. However, by operation of s. 60, evidence so admitted is
evidence of the fact: Regina v BD (1997) 94 A Crim R 131, Papakosmas v
The Queen (1999) 196 CLR 297.
Prior consistent statements can also be
admitted into evidence if ‘it is or will be suggested (either expressly or by
implication) that evidence given by a witness has been fabricated or
re-constructed (whether deliberately or otherwise) or is the result of a
suggestion’ (s. 108 Evidence Act). At common law, evidence of prior
consistent statements admitted to rebut the suggestion of ‘recent invention’
were only admissible to rebut the attack on the credibility of the witness, and
were not evidence of the fact: Nominal Defendant v Clemens (1960) CLR
476. However it has been held that by operation of s. 60 that evidence of prior
consistent statements admitted under s. 108 are admitted as evidence of the
fact.
It should be noted that there is a line of authority to the effect
that if it is simply put to a witness that the assertions made by the witness
are incorrect, s. 108 will not be triggered and prior consistent statements will
not be admitted: Regina v Whitmore (1999) 109 A Crim R 51, and Regina
v DWH [1999] NSWCCA 255.
Evidence of prior inconsistent
statements of a witness might be admissible in a number of situations. They
might be admissible if the statements emerged in the cross-examination of the
witness by the party opposing the party who called the witness. However, more
significantly, the prior inconsistent statements may be admissible if the party
calling the witness succeeds in having the witness declared an unfavourable
witness under s. 38 Evidence Act. At common law, evidence of prior
inconsistent statements were not admissible as evidence of the fact: see for
example Regina v Hawes (1994) 35 NSWLR 294 at 301. However, as a result
of s. 60 Evidence Act, prior inconsistent statements of a witness are
admissible as evidence of the fact (that is, as evidence of the truth of the
statements): Adam v The Queen (2001) 207 CLR 96.
There is an
important limitation on s. 60. It was held in Lee v The Queen (1998) 195
CLR 594 that s. 60 does not apply to second hand or more remote hearsay. The
effect of the decision is best understood by a recitation of the facts of the
case. Lee was alleged to have committed an armed robbery in which a gun was
fired. A witness, Romeo Calin, was alleged to have told the police that he saw
the appellant on the day of the robbery and the appellant said to him "Don't
bother me I have just done a job, I fired two shots". At trial Calin said he had
no recollection of the conversation with the appellant and denied making a
statement to the police. The Crown obtained leave to cross-examine Calin and
tendered his statement to police. The High Court allowed the appeal on the basis
that the effect of s. 60 might permit evidence of first hand hearsay as evidence
of the fact (such as the police relating that Mr Calin said that he saw the
appellant on the day of the robbery), but not second hand hearsay (the police
relating that Mr Calin said that the appellant said ‘I have just done a job’
etc.).
Lee v The Queen was recently followed in Regina v
Klein [2007] NSWCCA 206.
Other Exceptions to the Hearsay
Rule
Business Records: Section 69 Evidence Act
Under s.
69 of the Evidence Act a representation in a document is admissible
if:
•the document contains a previous representation
made in the course of or for the purposes of the business
•forms part of the
records kept in the course of or for the purposes of the business (s.
69(1))
•the representation was made by a person who might be reasonably
supposed to have personal knowledge of an asserted fact, or on the basis of
information directly or indirectly supplied by such a person (s. 69 (2))
and
•the document was not prepared or obtained for or in contemplation of
legal proceedings, or in connection with an investigation relating to or leading
to a criminal proceeding (s. 69(3)).
Representation
It appears that a representation includes an
opinion: Ringrow Pty Ltd v BP Australia [2003] FCA
933.
Business
Business is defined extremely widely in
clause 1 Part 2 of the Dictionary as follows:
Part 2 Other expressions1
References to businesses
(1) A reference in this Act to a business
includes a reference to the following:
(a) a profession, calling, occupation, trade or
undertaking,
(b) an activity engaged in or carried on by the Crown in any of
its capacities,
(c) an activity engaged in or carried on by the government of
a foreign country,
(d) an activity engaged in or carried on by a person or
body holding office or exercising power under or because of the Commonwealth
Constitution, an Australian law or a law of a foreign country, being an activity
engaged in or carried on in the performance of the functions of the office or in
the exercise of the power (otherwise than in a private capacity),
(e) the
proceedings of an Australian Parliament, a House of an Australian Parliament, a
committee of such a House or a committee of an Australian Parliament,
(f) the
proceedings of a legislature of a foreign country, including a House or
committee (however described) of such a legislature.
(2) A reference
in this Act to a business also includes a reference to:
(a) a business that is not engaged in or carried
on for profit, or
(b) a business engaged in or carried on outside Australia.
A similar definition under the previous Evidence Act (1898)
was held to include hospital records (Albrighton v RPAH [1980] 2 NSWLR
542, Regina v Perry (No.3) (1981) 28 SASR 112). It can include police
records (Regina v Reynolds (1993) 17 A Crim LJ 130, Regina v Perry
(No. 4) (1981) 28 SASR 119), but this is subject to the exception in s.
69(3) discussed below.
Records
‘Document’ is defined
widely in the Dictionary and includes writing, symbols, marks, or something
which records sounds and images. Under the previous legislation it was held that
‘record’ does not include letters received by a business: TPC v TNT
(1984) 56 ALR 647. It does include tape recordings: ANA v Commonwealth
(1975) 132 CLR 582 at 594.
Person With Personal
Knowledge.
The representation must have been made by a person who
might reasonably be supposed to have personal knowledge, or on the basis of
information supplied directly or indirectly by such a person. It does not
include records of another business without proof of something like a contract
of service: Ross McConnel Kitchen v Ross (1985) 1 NSWLR 233.
It is
not a bar to the use of the provision if the person who made the representation
cannot be identified: Lee v Minister for Immigration [2002] FCAFC
305
Statements Made in Contemplation of Legal
Proceedings
The business records exception does not apply to a
statement made for or in contemplation of legal proceedings or made in
connection with an investigation relating to or leading to a criminal
investigation (s. 69(3)).
Proof of a Negative
The
absence of a reference to the occurrence of an event in business records can be
used as evidence that the event did not occur: s. 69(4) Evidence
Act.
Tags, Labels and Writing: Section 70 Evidence
Act
The hearsay rule does not apply to tags or labels attached to an
object or writing on the object if the tag, label or writing may reasonably be
supposed to have been so attached or placed in the course of business and to
describe the identity, nature, ownership, destination, origin, weight, or
contents of the object: s. 70 Evidence Act. This provisions does not
apply to Commonwealth prosecutions under the Customs Act or the Excise
Act: s. 70 (3) Evidence Act
(Commonwealth).
Telecommunications: Section 71 Evidence
Act
The hearsay rule does not apply to representations in an e-mail,
fax, lettergram or telex but only so far as the representation is as to the
identity of the sender, the date the message was sent, and the identity of the
addressee: s. 71 Evidence Act.
Contemporaneous Statements
About Health etc: Section 72 Evidence Act
The hearsay rule does not
apply to contemporaneous representations by a person about the person's health,
feelings, sensations, intention, knowledge or state of mind: s. 72 Evidence
Act. This exception broadly corresponds with the common law: see Walton v
The Queen (1989) 166 CLR 283. Thus, for example, at common law the history
given by patient to a doctor was admissible as part of the foundation for the
doctor's opinion: Ramsay v Watson (1961) 108 CLR 642.
An expansive
view has been suggested for the operation of s. 72 which would permit the
admission of a person's representation about his or her memory of an incident,
even at a time when this memory was not ‘fresh’, on the basis that it is a
representation about a person's ‘memory’ or ‘state of mind’. If this expansive
view of section 72 was correct, the careful limitations set out in sections 64
and 66 of the Evidence Act would be completely unnecessary. The
suggestion that s. 72 applied to statements about memory of events was rejected
in Regina v Polkinghorne (1999) 108 A Crim R 189. Similarly it was
doubted that s. 72 applied to the identification of persons in Regina v
Barbaro and Rovere (2000) 112 A Crim R 551.
At common law statements
to experts and in particular to doctors were admissible but not as to the fact
that they were true: Ramsay v Watson (1961) 108 CLR 642. The history
needed to be proved, usually by calling the patient. As a result of s.60
Evidence Act, the history given to a doctor is evidence of the truth of
what was said: Regina v Welsh (1996) 90 A Crim R 364. This is of course
particularly important in relation to psychiatric defences or partially defences
in criminal trials. It means that if an expert witness such as a doctor or
psychiatrist is called by the defence, it may not be necessary to call the
accused. However experience suggests that most judges are reluctant to give much
weight to a history unsupported by evidence from the patient.
Age
and Relationships: Section 73 Evidence Act
Hearsay does not apply to
evidence of ‘reputation’ as to whether or not a person is married, whether a man
and a woman were cohabitating or married at a particular time, and about a
person's age: s. 73 Evidence Act. This is partly to overcome the strict
view taken in some cases that technically only someone present at a person's
birth could give evidence of the person's age without breaching the rule against
hearsay. Even someone giving evidence about his or her own age was treated as
strictly hearsay. However, at common law such evidence was normally admitted:
Smith v Police [1969] NZLR 856, Rex v Turner [1910] 1 KB
362.
In criminal proceedings, evidence of ‘reputation’ as to age,
relationship or marriage led by the prosecution is only admissible to contradict
evidence of such a ‘reputation’ which has already been admitted. Evidence of
‘reputation’ as to age, relationship or marriage led by the defence is only
admissible if the defence has given reasonable notice in writing if its
intention to lead this evidence, or if it tends to contradict evidence already
admitted on that topic.
This exception deals with the fact of a
relationship, not its quality: Regina v Mrish (NSW SC, Hidden J,
unreported 15/8/1996).
Evidence About Public Rights: Section 74
Evidence Act
The hearsay rule does not apply to evidence of
reputation concerning the existence, nature or extent of a public or general
right: s. 74 Evidence Act. This provision reflects the common law
position.
In criminal proceedings, evidence of reputation of such public
or general rights can only be led by a prosecutor if it tends to contradict
evidence of that kind that has already been
admitted.
Interlocutory Proceedings: Section 75 of the Evidence
Act
The hearsay rule does not apply in interlocutory proceedings if
the party adducing the evidence also adduces evidence of the source of the
evidence: section 75 of the Evidence Act.
Directions about
hearsay evidence
Hearsay evidence may attract a direction under s.
165(1) (a) Evidence Act that the evidence may be unreliable, and that the
jury should exercise caution in determining whether to accept the evidence and
the weight to be given to it. The NSW CCA has approved the following list of
relevant considerations in a case where 'complaint evidence' is led in a sexual
assault case in Regina v TJF (2001) 120 A Crim R 209:
"(a) The potential compounding of weakness of
perception, memory, narration skills and sincerity when evidence of the fact is
given second hand.
(b) The statement to the witness not be testable by
cross-examination.
(c) The statement made to the witness not being made in a
court environment and thus potentially more susceptible to pressures which might
result in a false account.
(d) The statement made to the witness not being
made on oath or affirmation in the solemn context of proceedings in court."
John Stratton SC
Deputy Senior Public Defender
EXTRACTS FROM THE EVIDENCE ACT
PART 3.2
HEARSAY
Division 1- The hearsay rule
59 The hearsay
rule-exclusion of hearsay evidence
(1) Evidence of a previous
representation made by a person is not admissible to prove the existence of a
fact that the person intended to assert by the representation.
(2) Such a
fact is in this Part referred to as an asserted fact.
(3) Subsection (1)
does not apply to evidence of a representation contained in a certificate or
other document given or made under regulations made under an Act other than this
Act to the extent to which the regulations provide that the certificate or other
document has evidentiary effect.
60 Exception: evidence relevant
for a non-hearsay purpose
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 the fact intended to be asserted by the
representation.
61 Exceptions to the hearsay rule dependent on
competency
(1) This Part does not enable use of a previous
representation to prove the existence of an asserted fact if, when the
representation was made, the person who made it was not competent to give
evidence about the fact because he or she was incapable of giving a rational
reply to a question about the fact.
(2) This section does not apply to a
contemporaneous representation made by a person about his or her health,
feelings, sensations, intention, knowledge or state of mind.
Note:
For the admissibility of such contemporaneous representations, see section
72.
(3) For the purposes of this section, it is presumed, unless the contrary
is proved, that when the representation was made the person who made it was
competent to give evidence about the asserted fact.
Division 2-
“First hand “ hearsay
62 Restriction to “first-hand”
hearsay
(1) A reference in this Division (other than in subsection
(2)) to a previous representation is a reference to a previous representation
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 previous representation made by another person about the
fact.
63 Exception: civil proceedings if maker not
available
(1) This section applies in a civil 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:
(a) evidence of the representation that is given
by a person who saw, heard or otherwise perceived the representation being made,
or
(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.
Note:
1 Section 67 imposes notice requirements relating to this
subsection.
2 Clause 4 of Part 2 of the Dictionary is about the availability
of persons.
64 Exception: civil proceedings if maker
available
(1) This section applies in a civil proceeding if a person
who made a previous representation is available to give evidence about an
asserted fact.
(2) The hearsay rule does not apply to:
(a) evidence of the representation that is given
by a person who saw, heard or otherwise perceived the representation being made,
or
(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,
if it would cause undue expense or undue
delay, or would not be reasonably practicable, to call the person who made the
representation to give evidence.
Note: Section 67 imposes notice requirements relating to this
subsection. Section 68 is about objections to notices that relate to this
subsection.
(3) If the person who made the representation 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.
(4) A
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.
Note:
Clause 4 of Part 2 of the Dictionary is about the availability of
persons.
65 Exception: criminal proceedings if maker not
available
(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, if the representation
was:
(a) made under a duty to make that representation
or to make representations of that kind, or
(b) made when or shortly
after the asserted fact occurred and in circumstances that make it unlikely that
the representation is a fabrication, or
(c) made in circumstances that
make it highly probable that the representation is reliable, or
(d)
against the interests of the person who made it at the time it was
made.
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.
(4) If there is more than one defendant in the criminal
proceeding, evidence of a previous representation that:
(a) is given in an Australian or overseas
proceeding, and
(b) is admitted into evidence in the criminal proceeding
because of subsection (3),
cannot be used against a defendant who did not cross-examine, and did not
have a reasonable opportunity to cross-examine, the person about the
representation.
(5) For the purposes of subsections (3) and (4), a
defendant is taken to have had a reasonable opportunity to cross-examine a
person if the defendant was not present at a time when the cross-examination of
a person might have been conducted but:
(a) could reasonably have been present at that
time, and
(b) if present could have cross-examined the person.
(6) Evidence of the making of a representation to which subsection (3)
applies may be adduced by producing a transcript, or a recording, of the
representation that is authenticated by:
(a) the person to whom, or the court or other body
to which, the representation was made, or
(b) if applicable, the
registrar or other proper officer of the court or other body to which the
representation was made, or
(c) the person or body responsible for
producing the transcript or recording.
(7) Without limiting subsection (2) (d), a representation is taken for
the purposes of that subsection to be against the interests of the person who
made it if it tends:
(a) to damage the person’s reputation,
or
(b) to show that the person has committed an offence for which the
person has not been convicted, or
(c) to show that the person is liable
in an action for damages.
(8) The hearsay rule does not apply to:
(a) evidence of a previous representation adduced
by a defendant if the evidence is given by a person who saw, heard or otherwise
perceived the representation being made, or
(b) a document tendered as
evidence by a defendant so far as it contains a previous representation, or
another representation to which it is reasonably necessary to refer in order to
understand the representation.
Note: Section 67 imposes notice requirements relating to this
subsection.
(9) If evidence of a previous representation about a matter
has been adduced by a defendant and has been admitted, the hearsay rule does not
apply to evidence of another representation about the matter that:
(a) is adduced by another party, and
(b) is
given by a person who saw, heard or otherwise perceived the other representation
being made.
Note: Clause 4 of Part 2 of the Dictionary is about the
availability of persons.
66 Exception: criminal proceedings if
maker available
(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.
(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.
(4) A document containing a representation to
which subsection (2) 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.
Note: Clause 4 of Part 2 of the Dictionary is about
the availability of persons.
67 Notice to be given
(1)
Sections 63 (2), 64 (2) and 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.
(2) Notices
given under subsection (1) are to be given in accordance with any regulations or
rules of court made for the purposes of this section.
(3) The notice must
state:
(a) the particular provisions of this Division on
which the party intends to rely in arguing that the hearsay rule does not apply
to the evidence, and
(b) if section 64 (2) is such a provision-the
grounds, specified in that provision, on which the party intends to rely.
(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.
(5) The
direction:
(a) is subject to such conditions (if any) as the
court thinks fit, and
(b) in particular, may provide that, in relation to
specified evidence, the subsection or subsections concerned apply with such
modifications as the court specifies.
68 Objections to tender of hearsay evidence in civil proceedings
if maker available
(1) In a civil proceeding, if the notice discloses
that it is not intended to call the person who made the previous representation
concerned because it:
(a) would cause undue expense or undue delay,
or
(b) would not be reasonably practicable,
a party may, not later than 21 days after notice has been given, object
to the tender of the evidence, or of a specified part of the
evidence.
(2) The objection is to be made by giving to each other party a
written notice setting out the grounds on which the objection is
made.
(3) The court may, on the application of a party, determine the
objection at or before the hearing.
(4) If the objection is unreasonable,
the court may order that, in any event, 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 made the representation to give evidence.
Note: This subsection differs from section 68 (4) of the
Commonwealth Act because of the different way costs are ascertained by NSW
courts.
69 Exception: business records
(1) This section
applies to a document that:
(a) either:
(i) is or forms part of the records belonging to
or kept by a person, body or organisation in the course of, or for the purposes
of, a business, or
(ii) at any time was or formed part of such a record,
and
(b) contains a previous representation made or recorded in the
document in the course of, or for the purposes of, the business.
(2) The hearsay rule does not apply to the document (so far as it
contains the representation) if the representation was made:
(a) by a person who had or might reasonably be
supposed to have had personal knowledge of the asserted fact, or
(b) on
the basis of information directly or indirectly supplied by a person who had or
might reasonably be supposed to have had personal knowledge of the asserted
fact.
(3) Subsection (2) does not apply if the representation:
(a) was prepared or obtained for the purpose of
conducting, or for or in contemplation of or in connection with, an Australian
or overseas proceeding, or
(b) was made in connection with an
investigation relating or leading to a criminal proceeding.
(4) If:
(a) the occurrence of an event of a particular
kind is in question, and
(b) in the course of a business, a system has
been followed of making and keeping a record of the occurrence of all events of
that kind,
the hearsay rule does not apply to evidence that tends to prove that
there is no record kept, in accordance with that system, of the occurrence of
the event.
(5) For the purposes of this section, a person is taken to
have had personal knowledge of a fact if the person’s knowledge of the fact was
or might reasonably be supposed to have been based on what the person saw, heard
or otherwise perceived (other than a previous representation made by a person
about the fact).
Note:
1 Sections 48, 49, 50, 146, 147 and 150
(1) are relevant to the mode of proof, and authentication, of business
records.
2 Section 182 of the Commonwealth Act gives section 69 of the
Commonwealth Act a wider application in relation to Commonwealth
records.
70 Exception: 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.
Note: The Commonwealth Act has an additional subsection. It provides
that the exception does not apply to Customs and Excise prosecutions. Section 5
of the Commonwealth Act extends the application of that subsection to
proceedings in all Australian courts.
71 Exception:
telecommunications
The hearsay rule does not apply to a
representation contained in a document recording a message that has been
transmitted by electronic mail or by a fax, telegram, lettergram or telex so far
as the representation is a representation as to:
(a) the identity of the person from whom or on
whose behalf the message was sent, or
(b) the date on which or the time
at which the message was sent, or
(c) the message’s destination or the
identity of the person to whom the message was addressed.
Note:
1 Division 3 of Part 4.3 contains presumptions about
telexes, lettergrams and telegrams.
2 Section 182 of the Commonwealth Act
gives section 71 of the Commonwealth Act a wider application in relation to
Commonwealth records.
72 Exception: contemporaneous statements
about a person’s health etc
The hearsay rule does not apply to
evidence of a representation made by a person that was a contemporaneous
representation about the person’s health, feelings, sensations, intention,
knowledge or state of mind.
73 Exception: reputation as to
relationships and age
(1) The hearsay rule does not apply to evidence
of reputation concerning:
(a) whether a person was, at a particular time or
at any time, a married person, or
(b) whether a man and a woman
cohabiting at a particular time were married to each other at that time,
or
(c) a person’s age, or
(d) family history or a family
relationship.
(2) In a criminal proceeding, subsection (1) does not apply to evidence
adduced by a defendant unless:
(a) it tends to contradict evidence of a kind
referred to in subsection (1) that has been admitted, or
(b) the
defendant has given reasonable notice in writing to each other party of the
defendant’s intention to adduce the evidence.
(3) In a criminal proceeding, subsection (1) does not apply to evidence
adduced by the prosecutor unless it tends to contradict evidence of a kind
referred to in subsection (1) that has been admitted.
74
Exception: reputation of public or general rights
(1) The hearsay
rule does not apply to evidence of reputation concerning the existence, nature
or extent of a public or general right.
(2) In a criminal proceeding,
subsection (1) does not apply to evidence adduced by the prosecutor unless it
tends to contradict evidence of a kind referred to in subsection (1) that has
been admitted.
75 Exception: interlocutory
proceedings
In an interlocutory proceeding, the hearsay rule does not
apply to evidence if the party who adduces it also adduces evidence of its
source.