Week 7 Study Guide: Hearsay Evidence

Study Guide: Hearsay Evidence

I. Core Concepts & Objectives

By the end of your review, you should be able to:

Precisely define hearsay evidence and distinguish it clearly from original evidence.
Articulate the reasons why hearsay evidence is generally considered inadmissible.
Identify and explain the major exceptions to the hearsay rule under the Uniform Evidence Laws, particularly:
Statements used for non-hearsay purposes (s 60).
First-hand hearsay where the maker is unavailable (s 63, s 65).
First-hand hearsay where the maker is available (s 64, s 66).
Business records (s 69).
Contemporaneous statements about a person’s health, feelings, sensations, intention, knowledge, or state of mind (s 66A).
Understand the impact of judicial discretions (ss 135, 136, 137) and warnings (s 165) on the admissibility and use of hearsay evidence.
Apply these principles to factual scenarios, identifying relevant evidence and formulating arguments for or against its admissibility.

II. Key Areas of Knowledge

1. Defining Hearsay Evidence (s 59)

Definition: Evidence of a statement of fact offered to a court by a person who did not personally witness or experience what they are describing, used to assert the truth of what is being asserted.
Distinction from Original Evidence:Hearsay (Testimonial Use): Offered to prove the truth of the statement’s contents. Example: X tells the court that A told X that A saw B hit C, to prove B hit C.
Original Evidence (Non-Hearsay Use): Offered to prove the fact that the statement was made, regardless of its truth. Example: X tells the court that A told X that A saw B hit C, to prove A made the statement (e.g., in a defamation case where the fact of the statement itself is relevant).
“Previous Representation”: Defined broadly to include express/implied, oral/written, inferred from conduct, and even unintended representations (e.g., a diary entry not meant for others).

2. Rationale for Inadmissibility

Unreliability: Information passed from person to person can become inaccurate.
Lack of Oath: The original witness’s statement was not given under oath.
No Cross-Examination: The original witness cannot be cross-examined to test their perception, memory, narration skills, or sincerity.
Inability to Assess Demeanour: The fact-finder cannot assess the credibility of the original witness.
Four Testimonial Infirmities (Morgan): Ambiguity, insincerity, faulty perception, erroneous memory.

3. Key Exceptions to the Hearsay Rule (Uniform Laws)

a) Evidence Relevant for a Non-Hearsay Purpose (s 60)

If a previous representation is admitted for a purpose other than proving an asserted fact (original use), it can also be used as evidence of the truth of the asserted fact (hearsay purpose).
Impact of Lee v The Queen (1998): Originally restricted s 60’s application to first-hand assertions made by the declarant, not to second-hand (what A heard B say). This has since been overruled by s 60(2), meaning second-hand and more remote hearsay can be admitted for its truth if there’s an original use.
Examples of original uses: Prior inconsistent statements, prior consistent statements, factual basis of expert opinions.
**Limitations:**Testimonial use must be beneficial.
Assertion of fact must be relevant (s 55).
Judicial discretions (ss 135, 136, 137) can still apply.

b) First-Hand Hearsay Exceptions (ss 63-66)

“First-Hand Hearsay”: The person who made the statement either had, or may reasonably be supposed to have had, personal knowledge of the asserted fact (s 62).
Unavailability of Declarant (Dictionary, Part 2, cl 4): A person is unavailable if they are dead, incompetent, physically/mentally unable (and not reasonably practicable to overcome), unlawful to give evidence, prohibited by the Act, or if all reasonable steps to find/compel attendance have failed.
Civil Proceedings - Maker Unavailable (s 63): Hearsay rule does not apply if the declarant is unavailable. Evidence can be given by someone who perceived the representation or from a document containing it.
Criminal Proceedings - Maker Unavailable (s 65):Specific circumstances (s 65(2)): Representation made under a duty, shortly after the fact (unlikely to be a fabrication), highly probable reliability, or against the declarant’s interests (and reliable).
Previous testimony (s 65(3)): If declarant cross-examined (or had reasonable opportunity) in a previous Australian/overseas proceeding.
Defendant adduces evidence (s 65(8)): Broader exception for evidence adduced by the defendant.
“Retaliatory” Hearsay (s 65(9)): If a defendant adduces first-hand hearsay, the Crown (or another party) can adduce other first-hand hearsay about the same matter, even if it wouldn’t otherwise meet s 65(2) conditions.
Civil Proceedings - Maker Available (s 64):Undue expense/delay/impracticability (s 64(2)): Similar to s 63, but declarant is available.
Declarant called as witness (s 64(3)): If the declarant has been or is to be called, evidence of the representation is admissible.
Criminal Proceedings - Maker Available (s 66):Declarant called as witness (s 66(2)): If the representation was made when the asserted fact was “fresh in the memory” of the declarant.
“Fresh in the memory” (s 66(2A)): Time elapsed is a primary factor, but other relevant matters (nature of event, age/health, vividness of recollection) can be considered (Graham v The Queen and subsequent amendments).
Prosecutor’s evidence of proofs (s 66(3)): Generally, s 66(2) does not apply to evidence adduced by the prosecutor if the representation was made to indicate potential court evidence, unless it concerns the identity of a person, place, or thing.

c) Contemporaneous Statements about State of Mind (s 66A)

Formerly s 72: The hearsay rule does not apply to a contemporaneous representation about a person’s health, feelings, sensations, intention, knowledge, or state of mind.
“Contemporaneous”: Made at the same time as the fact to which the representation relates, and which it is sought to establish. Limited to first-hand hearsay (s 62(3)).
Proof of Subsequent Act by Intention: Evidence of intention can be admissible to prove a subsequent act, though this remains a controversial area at common law (e.g., Walton v The Queen).

d) Documentary Business Records Exception (s 69)

Scope: Applies to documents that are or were part of records kept by a person/body/organization in the course of or for the purposes of a business. “Business” is broadly defined.
Admissibility Conditions (s 69(2)): The representation must be made by a person with personal knowledge of the asserted fact, or based on information supplied by such a person (direct or indirect).
Exclusions (s 69(3)): Does not apply if the representation was prepared/obtained for actual or contemplated legal proceedings, or in connection with a criminal investigation. This aims to prevent self-serving statements.
Absence of Record (s 69(4)): Can prove an event did not occur by showing no record of it exists in a system designed to record such events.

4. Other Exceptions

Admissions (s 81 - covered in Chapter 9, but noted as a hearsay exception).
Previous convictions as evidence in subsequent civil cases (s 92).
Evidence of character of accused (s 110).
Contents of tags, labels, and writing (s 70).
Electronic communications (s 71).
Aboriginal and Torres Strait Islander traditional laws and customs (s 72).
Reputation as to relationships and age (s 73).
Reputation as to public/general rights (s 74).
Interlocutory proceedings (s 75) - evidence admissible if source is adduced.

5. Discretions and Warnings

Discretionary Exclusion (s 135 - Civil, s 137 - Criminal): Even if admissible, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, misleading/confusing the jury, or undue waste of time.
“Unfair prejudice”: Debate exists on whether inability to cross-examine constitutes “unfair prejudice.”
Limiting Directions (s 136): The court can limit the use of evidence for a specific purpose. This is particularly relevant when s 60 makes evidence admissible for a hearsay purpose after being admitted for a non-hearsay purpose.
Judicial Warning to the Jury (s 165): The judge may warn the jury about the unreliability of certain evidence (e.g., hearsay) and the reasons why.

III. Relevant Cases

Lithgow City Council v Jackson (2011) 281 ALR 223: (Not detailed in provided texts, but listed as essential reading. Implies general principles or specific applications of hearsay exceptions, possibly related to official records or statements within a duty.)
Subramaniam v Public Prosecutor [1956] 1 WLR 965: Classic case illustrating the distinction between original and hearsay evidence. Statements made by terrorists to the accused were admissible not for their truth, but to show the effect they had on the accused’s state of mind (duress).
Welsh v R (1996) 90 A Crim R 364: Explains the effect of s 60 on the factual substratum of an expert’s report, reversing the common law position by allowing the history given to a doctor to be evidence of its truth.
Lee v The Queen (1998) 195 CLR 594: Significant High Court decision that initially limited s 60, holding it did not permit second-hand hearsay to be used for its truth. Subsequently overruled by s 60(2).
Ratten v R [1972] AC 378: Common law case on res gestae, where a hysterical woman’s “000” call was admissible not as hearsay but as evidence of her fear. Discussed in relation to implied assertions under s 59.
Wright v Doe d Tatham (1837) 112 ER 488: Common law case defining “hearsay by conduct” (e.g., a sea captain taking family on a voyage implying seaworthiness). Under Uniform Laws, this would depend on whether the conduct was intended to assert the fact.
R v Hannes (2000) 158 FLR 359: Illustrates the complexity of “intended implied representations” under s 59 and the disagreement among judges, leading to the clarification in s 59(2A).
In re Van Beelen (1974) 9 SASR 163: Explores original uses of statements and discusses the rationale behind limiting confessions of guilt by non-parties due to fabrication risk.
Conway v The Queen (2000) 98 FCR 204: Deals with the scope of “circumstances” in s 65(2)(b) and (c) for reliability, and the requirement that evidence be “perceived being made” for documentary hearsay.
R v Ambrosoli (2002) 55 NSWLR 603: Further discusses the meaning of “circumstances” in s 65(2)(b) and (c) and the high threshold for reliability findings.
Caterpillar Inc v John Deere Ltd (No 2) (2000) 181 ALR 108: Demonstrates the application of “unavailability” (cl 4) and the strict requirements for representations in documents (cl 6) under ss 63 and 64, as well as the notice requirements of s 67.
Ordukaya v Hicks [2000] NSWCA 180: Discusses the application of s 135 (unfair prejudice) in civil proceedings to first-hand hearsay, specifically whether inability to cross-examine is a form of unfair prejudice.
Graham v The Queen (1998) 195 CLR 606: Defined “fresh in the memory” in s 66(2) primarily by temporal relationship, leading to subsequent amendment (s 66(2A)) to allow consideration of other factors.
Papakosmas v The Queen (1999) 196 CLR 297: Clarified that the Act reversed the common law position on “recent complaint” evidence, allowing it to be used for its hearsay purpose (truth of assertions) if relevant and meeting s 66 conditions, subject to discretions.
Vitali v Stachnik [2001] NSWSC 303: Illustrates the application of the business records exception (s 69) and, crucially, the exclusion in s 69(3) for documents prepared in contemplation of proceedings.

IV. Self-Guided Study

Consult the Evidence Act 2008 (Vic) pt 3.2 thoroughly.
Practice identifying hearsay and distinguishing it from original evidence.
Map out the exceptions: Create flowcharts or tables to clearly understand the conditions for each exception (e.g., civil/criminal, available/unavailable, first-hand/second-hand).
Focus on the rationales: Understanding why the rules and exceptions exist will help with application.
Work through the provided example questions and answers in the textbook, paying close attention to the examiner’s comments and “Keep in Mind” sections. These highlight common errors and effective problem-solving strategies.
Analyze the impact of judicial discretions: Consider how ss 135-137 and s 165 can affect whether admissible hearsay is actually used, or how it is used.

Quiz: Hearsay Evidence

Instructions: Answer each question in 2-3 sentences.

Explain the fundamental distinction between “hearsay evidence” and “original evidence” and provide a brief example of each.
List three reasons why hearsay evidence is generally considered inadmissible at common law.
Under the Uniform Evidence Laws, how does section 60 operate in relation to evidence admitted for a non-hearsay purpose?
What is meant by “first-hand hearsay” in the context of the Uniform Evidence Laws (s 62)?
Outline two circumstances under which a person is deemed “unavailable to give evidence” for the purposes of hearsay exceptions (Dictionary, Part 2, cl 4).
Explain the “fresh in the memory” requirement under section 66(2) and how section 66(2A) modified its interpretation.
What is the primary purpose of the exception to the hearsay rule for “business records” under section 69?
Identify one key exclusion to the “business records” exception (s 69(3)) and explain its rationale.
In Subramaniam v Public Prosecutor, why were the statements made by terrorists to the accused admissible, despite being out-of-court statements?
Describe the general effect of section 136 (limiting directions) on evidence that falls under a hearsay exception.

Quiz Answer Key

Explanation: Hearsay evidence is an out-of-court statement offered to prove the truth of its contents. Original evidence, by contrast, is an out-of-court statement offered to prove only the fact that the statement was made, not its truth. Example: If A testifies that B said “C stole my car” to prove C stole the car, it’s hearsay. If A testifies that B said “C stole my car” to prove B made a defamatory statement, it’s original evidence.
Reasons: Hearsay is generally inadmissible because the original statement was not made under oath, the original maker cannot be cross-examined, and the fact-finder cannot assess the original maker’s demeanour, which collectively contribute to its unreliability.
Operation of s 60: Section 60 states that if evidence of a previous representation is admitted for a purpose other than proving an asserted fact (a non-hearsay purpose), the hearsay rule does not apply, and the evidence can then also be used to prove the truth of the asserted fact. This effectively allows evidence with an original use to also serve a testimonial purpose.
First-hand hearsay (s 62): First-hand hearsay refers to a previous representation made by a person who had, or might reasonably be supposed to have had, personal knowledge of the asserted fact. This means their knowledge was based on something they personally saw, heard, or otherwise perceived, excluding another person’s previous representation.
Two Circumstances for Unavailability: A person is taken not to be available to give evidence if they are dead, or if they are mentally or physically unable to give evidence and it is not reasonably practicable to overcome that inability. (Other valid answers include: not competent, unlawful to give evidence, prohibited by Act, or all reasonable steps to find/compel attendance have failed).
“Fresh in the memory” (s 66(2) and s 66(2A)): Section 66(2) requires that the representation was made when the asserted fact was “fresh in the memory” of the person who made it, historically meaning “recent” or “immediate.” Section 66(2A) expanded this by allowing the court to consider all relevant matters, including the nature of the event, age and health of the person, and the period of time, moving beyond a sole focus on temporal proximity.
Primary Purpose of s 69: The primary purpose of the business records exception is to allow reliable documentary evidence, which is routinely created in the course of business, to be admitted for the truth of its contents, acknowledging that such records are often trusted and necessary for proving facts outside of court.
Key Exclusion to s 69(3): Section 69(3) excludes representations that were prepared or obtained for the purpose of, or in contemplation of, or in connection with, an Australian or overseas proceeding. The rationale is to prevent the introduction of potentially self-serving or strategically created hearsay material that lacks the inherent reliability of ordinary business records.
Subramaniam v Public Prosecutor: The statements were admissible as original evidence, not hearsay. Their relevance was to prove that the statements were made, which in turn was used to establish the effect those threats had on Subramaniam’s state of mind and his subsequent actions (duress), rather than proving the truth of the terrorists’ intentions.
Effect of s 136: Section 136 allows the court to limit the use of evidence for a specific purpose. If evidence (e.g., a statement admissible under s 60) could be used for a hearsay purpose but carries a risk of unfair prejudice, misleading the jury, or confusion, the judge can direct the jury to use it only for its non-hearsay (original) purpose.

Essay Format Questions

Critically analyze the common law rationale for excluding hearsay evidence, and discuss to what extent the Uniform Evidence Laws (specifically s 59 and the “first-hand hearsay” requirement) uphold or depart from this rationale.
Discuss the evolution of section 60 of the Uniform Evidence Laws, particularly in light of Lee v The Queen (1998) and subsequent legislative amendments. To what extent does the current operation of s 60 undermine the traditional hearsay rule, and what safeguards remain?
Compare and contrast the exceptions for first-hand hearsay where the maker is unavailable in civil proceedings (s 63) and criminal proceedings (s 65). Identify the key differences in conditions and justifications for these distinctions.
Examine the “business records” exception under section 69 of the Uniform Evidence Laws. Discuss its scope, the conditions for its application, and the significant limitations imposed by s 69(3), using relevant case law to illustrate your points.
“The judge’s discretion to exclude evidence is a critical safeguard against injustice in the application of hearsay rules.” Discuss this statement with reference to sections 135, 136, and 137 of the Uniform Evidence Laws, considering the debate surrounding “unfair prejudice” in the context of the inability to cross-examine declarants.

Glossary of Key Terms

Asserted Fact: A fact that it can reasonably be supposed a person intended to assert by a representation (s 59(2)).
Business Records (s 69): Documents forming part of the records belonging to or kept by a person, body, or organization in the course of, or for the purposes of, a business.
Contemporaneous Representation (s 66A): A representation made at the same time as the occurrence of the person’s health, feelings, sensations, intention, knowledge, or state of mind.
Cross-examination: The questioning of a witness by the opposing side in a trial to challenge or verify their testimony.
Declarant / Representor / Maker: The person who made a “previous representation.”
Demeanour: The outward behavior or appearance of a witness in court, which a fact-finder may observe to assess credibility.
Duress: Coercion or threats used to force someone to act against their will or better judgment.
Evidence Act 2008 (Vic): The specific Victorian legislation governing evidence, part 3.2 of which deals with hearsay.
Evidential Burden: The obligation to produce enough evidence to raise an issue, typically borne by the party making an assertion (e.g., for a defense).
First-Hand Hearsay (s 62): A previous representation made by a person who had, or might reasonably be supposed to have had, personal knowledge of an asserted fact (i.e., based on what they directly perceived, not another’s representation).
“Fresh in the Memory” (s 66(2), (2A)): Refers to the temporal relationship and quality of memory regarding an asserted fact at the time a representation was made. Originally “recent” or “immediate,” now includes other relevant factors.
Hearsay Evidence (s 59): Evidence of a “previous representation” offered to prove the “asserted fact” that the maker intended to assert. Generally inadmissible due to unreliability.
Inadmissible: Not allowed to be presented as evidence in a legal proceeding.
Interlocutory Proceeding (s 75): A proceeding that is not final, usually dealing with procedural matters or temporary relief (e.g., injunctions) prior to a full trial.
Judicial Discretion (ss 135, 137): The power of a judge to admit or exclude evidence based on a weighing of its probative value against potential dangers like unfair prejudice or confusion.
Judicial Warning (s 165): A direction given by a judge to the jury about the potential unreliability of certain evidence.
Legal Burden: The ultimate responsibility to prove a particular fact or element of a case, typically “beyond reasonable doubt” in criminal cases for the prosecution, or “on the balance of probabilities” in civil cases.
Limiting Direction (s 136): A judicial instruction that restricts the purpose for which particular evidence may be used by the fact-finder.
Original Evidence: An out-of-court statement whose relevance lies in the fact that it was made, rather than in the truth of its contents. Not subject to the hearsay rule.
Personal Knowledge (s 62(2), 69(5)): Knowledge of a fact based on what a person saw, heard, or otherwise perceived directly, rather than through another person’s representation.
Previous Representation (Dictionary): A representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced.
Probative Value: The extent to which evidence rationally affects the assessment of the probability of the existence of a fact in issue.
Res Gestae: A common law doctrine (partially reflected in s 65(2)(b) and s 66A) concerning statements made so closely connected in time and circumstance to an event as to be considered part of the event itself, and therefore deemed reliable.
Second-Hand Hearsay: A previous representation that relies on another previous representation (e.g., A tells B what C said). Generally less reliable than first-hand hearsay.
Self-Defence: A legal defense claiming that an action, usually violent, was necessary to protect oneself from harm.
State of Mind (s 66A): A person’s mental condition, including their intentions, knowledge, feelings, or beliefs at a particular time.
Subpoena: A writ issued by a court compelling someone to appear in court as a witness or to produce evidence.
Testimonial Infirmities: The four inherent weaknesses in human testimony: ambiguity, insincerity, faulty perception, and erroneous memory.
Testimonial Use: The use of a “previous representation” to prove the truth of the “asserted fact” it contains (i.e., its hearsay purpose).
Uniform Evidence Laws: A set of harmonized evidence legislation adopted by several Australian jurisdictions, including Victoria.
Unavailable to Give Evidence (Dictionary, Part 2, cl 4): Legal status of a person who cannot appear in court for various reasons, triggering specific hearsay exceptions.
Voir Dire: A “trial within a trial” or a separate hearing conducted by the judge (without the jury, if applicable) to determine the admissibility of evidence or the competence of a witness.