Rules of Evidence

Hearsay - Exceptions

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.

 

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).