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.

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Evidence relevant for a non-hearsay purpose

There are 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.

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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.

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[1] 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).

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