The Law of 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 summarize 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.

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