Hearsay

Rules of Evidence

Evidence that is not adduced from its original source witness is generally inadmissible as hearsay. The general rule in Section 59 is that a person cannot assert a fact that they were told by someone else. The fact alleged as hearsay, even if stated to the court, remains outside the court’s reach. This applies to documents also, so that the content can only be considered by the court if the author themselves testifies as to what it says. There are, however, a great many exceptions which need to be understood.

It is commonly thought in error by non-layers that all evidence needs to be in the form of original observations from first hand eyewitnesses. This is an error committed even by circumstance investigators who need to know better. While this is always the strongest evidence, as shown in following pages there are exceptions. When conducting enquiries it is suggested that the best approach is to obtain all evidence available and ensure the sources are nominated. Dissection between the admissible and inadmissible evidence can be done later as court proceedings require affidavits rather than mere signed statements.

Exceptions...

Distinction between first and second hand hearsay

The Uniform Evidence Law recognises two different types of hearsay and treats them differently in terms of some exceptions below. First hand hearsay is like this. The person who is the original source of information, who we will call ‘A,’ informs another person, ‘B’ about something they have seen, heard or done. Then B is called to give evidence and refers to what A told them. Such evidence is hearsay, but they heard about it first-hand. Suppose instead B tells C and C is called to give evidence and refers to this set of facts. C’s evidence about A’s original information is second hand hearsay.

Contemporaneous statements about a person’s health

First-hand hearsay evidence can be admitted about a person’s previous statements about their own health, feelings, sensations, intention, knowledge or state of mind. This is especially important when putting evidence to the court to found an intention to commit a crime, or for purposes of the fresh-in-the-memory exception, to rebut an assertion that evidence is sufficiently fresh in the mind of an original witness.

Unavailability and inaccessibility of witnesses – civil proceedings

In a civil proceeding, if the original witness is unavailable to testify – such as if they are deceased, unwell or missing and untraceable – or if it would cause undue expense or delay to call them, then first-hand hearsay is acceptable as evidence. Furthermore, a document containing the same information can also be admitted in evidence.

Unavailability of witnesses – criminal proceedings

In a criminal proceeding, where the original witness is unavailable to testify, first hand hearsay can be used under a range of circumstances where the representation being testified about:

was made under a duty to make representations of that kind; or
was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely to be a fabrication
was made in circumstances that make it highly probable that it is reliable; or
was against the interests of the person who made it originally, and was made in circumstances that make it likely that it is reliable.

Aboriginal and Torres Strait Islander traditional laws and customs

Section 72 states that evidence as to a representation about the existence, non‑existence or meaning of traditional laws and customs of an Aboriginal or Torres Strait Islander group, is exempt from the hearsay rule.

Fresh in the memory – criminal proceedings

Another exception to the hearsay rule in criminal proceedings is where facts to be adduced in evidence were fresh in the memory of the person who related them at the time. The passage of time is only one consideration to be taken into account regarding freshness in the mind. Other factors are the nature of the event, and the person’s age and health. This does not apply to civil proceedings.

In LMD v R an appeal was heard as to whether the judge had erred in allowing evidence of a complaint of a crime to go before the jury. Two complaints made by a victim of sexual assault, seven years and 11 years after the alleged assaults by a family member, were fresh in her mind. This stood even though the victim was seven or eight years of age at the time.

Evidence relevant for a non-hearsay purpose

There are then a number of exceptions to the hearsay rule beginning at Section 60. In Section 60 the exception is that evidence is admissible if it goes to a point other than the fact that is asserted by way of hearsay.

A witness therefore can testify that they were told a certain thing in a conversation. The court can hear an account of the conversation, but it cannot use the information that was communicated as evidence in and of itself. It can only use what the witness themselves can testify to first hand. Another example is evidence of threats that prove that someone was acting under duress.

Examples of evidence used for non-hearsay purposes includes accounts of conversations to prove that the conversation, evidence of threats to prove someone was acting under duress, and evidence of a representation by a person used to infer the identity of that person.

Business records

Under section 69, the records of a business are considered generally to be reliable as they have to be in order to be of use to the business. They are therefore admissible even where there is no-one to testify to their content.

This exception applies only where the representation in the document in evidence was made, or recorded, in the normal course of business. It does not have to be a record held by the business itself, but it could be held by any other person or organisation for business purposes. It has to be made by a person who had knowledge of the fact, or based on information supplied by a person who might reasonably be supposed to have such knowledge.

Records created by a business in the course of an internal investigation relating to any anticipated court proceedings are not covered by this exception.

Where there is system in place to record every occurrence of a particular event, and a record otherwise to be anticipated is absent, then an inference can be drawn from the absence of such a record. This may include an absence of pay records while a person is still employed, an absence of security system or visitor book login details, an absence of an internet address from internet browsing history, or an absence of tollway records.

Tags, labels and writing on objects or documents

Section 70 addresses the content of tags, labels and writing. Such are admissible in evidence where they are created in the course of business and for the purpose of describing the identity, nature, ownership, destination, origin, weight, or the contents (if any) of the object that they are attached to.

Electronic communications

Under section 71, electronic communications in so much as they represent the identity of the sender, the date and time of sending or the recipient or address are exempted from the hearsay rule. This is not limited to email or fax or any other mode of communication.

Reputation as to age and relationships

Hearsay evidence can be admitted where it relates to the following:

A person’s age,
Whether a person was married at a particular time,
Whether a man and woman cohabiting at a certain time were married,
A person’s family history,
A person’s family relationships.

This exception does not apply to criminal matters unless the evidence tends to contradict evidence already admitted, or unless the defendant has given notice of their intention to call this kind of evidence.

LMD v R [2012] VSCA 164.