Criminal Law Survival Kit: Hearsay

THE RULE AGAINST HEARSAY

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.

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 expressions

1 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

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

(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

(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

(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

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

(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.