Hearsay - Exceptions

Rules of Evidence

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.

 

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.

LMD v R [2012] VSCA 164.

All statutory sections from unspecified Acts, are sections from a model Act of the Commonwealth Parliament as described on the first page of this chapter, and should be replicated as described in each of the related Acts of each State and Territory. (Jurisdiction to regulate the rules of evidence exists in the States and Territories and not in the Commonwealth).