The hearsay rule or hearsay evidence is one of the most well-known concepts in law. You may often hear this concept in courtroom dramas or criminal trials on television. For example, a lawyer makes an objection in criminal proceedings or criminal cases because of "hearsay".

In daily life, you can equate this concept to rumours. It does not really come from the person directly. Rather, someone heard somebody else say this about the person or the matter.

While we may have a general understanding of its meaning, in the legal or criminal sense, it has certain technical meanings. Some States share similar hearsay provisions in their uniform evidence acts, while other states rely upon the common law.

In NSW, the laws on hearsay are provided under the Evidence Act 1995. This article will discuss important matters regarding hearsay statements and the hearsay rule.

Hearsay Evidence: When the Hearsay Rule Applies

Section 59 of the Evidence Act 1995 mentions the general rule. It provides that "evidence of a previous representation is not admissible to prove the existence of a fact that one can reasonably suppose that the person intended to assert by the representation."

The Evidence Act provides that "representations" include things said orally, written down, or communicated through conduct. A "previous representation" includes any such statement (whether made orally, in writing or through conduct) made outside of court proceedings.

In other words, the rule means that witnesses can give evidence relevant to what they personally saw, heard, or experienced. They must not give evidence of something they only know merely because they heard it from another person.

For example, person A is giving evidence in a criminal proceeding where person B is facing a robbery charge. It would be inadmissible if person A tells the Court that he merely knew that person B robbed the bank because person C said so. This would be inadmissible because the testimony relies on what person C has said to establish the existence of a fact of which person A has no direct knowledge of.

The Rationale for the Hearsay Rule

The American Law Reform Commission cites the following as justifications for the rule:

  • out of court statements are usually not on oath;
  • there is usually an absence of testing by cross-examination;
  • the evidence might not be the best evidence;
  • there are dangers of inaccuracy in repetition;
  • there is a risk of fabrication;
  • to admit such evidence can add to the time and cost of litigation; and
  • to admit such evidence can unfairly catch the opposing party by surprise.

Notably, under Section 165 of the Evidence Act, hearsay is the first one under "unreliable evidence". This may be because the remoteness and lack of opportunity for cross-examination affects the quality of evidence.

Case Law: Subramaniam v Public Prosecutor [1956]

This is a leading Privy council case giving a definition of the rule which the Commonwealth often cites. It was a case that courts heard on appeal from the Federation of Malaya.

In this case, the appellant faced a charge of possession of ammunition for the purpose of helping a terrorist enemy. This is punishable by death. The defendant argued that terrorists had captured him, and he acted under duress. As part of the defence, he wanted to testify about conversations he had with the terrorists. He wanted to introduce evidence describing his capture and what the terrorists said to him.

The issue in the case was whether the conversations would constitute hearsay. The trial judge ruled that any evidence of what the terrorists said was inadmissible unless the terrorists themselves were going to attend court to give the evidence.

The court overturned the decision on appeal, with the Privy Council ruling that it is inadmissible when the object of the evidence is to establish the truth of the statement. It is not hearsay and it is admissible when someone proposes it to establish by the evidence, not the truth of the statement, but the fact that someone made the statement.

Evidence is only hearsay if the purpose of submitting the evidence is to prove the contents of the statements were true. In this case, the truth of the statements that the terrorists made were not significant. But, what was important was to establish that the statements were indeed made by the terrorists to the appellant.

Notably, the case deals with evidence which, despite being a statement that a party made outside of the courtroom, is not hearsay at all.

Exceptions to the Hearsay Rule

In most courts, such statements are inadmissible due to concerns of its nature and reliability; because the witness is merely quoting persons who are not present in court. It is not based on the personal knowledge of the witness, but on the knowledge of another person who is not even on the witness stand.

However, in Australia, there are exceptions to the hearsay rule, such as:

Statements that are relevant for a non-hearsay purpose.

Section 60 of the Evidence Act 1995 provides that the rule "does not apply to evidence of a previous representation that courts admit because it is relevant for a purpose other than proof of an asserted fact."

Statements that parties make for a non-hearsay purpose are admissible. In other words, Section 60 allows representations, once admitted for another relevant purpose, to be used as evidence of the truth of the assertion they contain. For example, the doctor uses the health history that he/she gets from a patient to form an expert opinion.

Unavailable witnesses.

In general, the Dictionary of the Evidence Act provides that a person is not taken to be available to give evidence about a fact if: -

  1. the person is dead, or
  2. the person is, for any reason other than the application of section 16 (Competence and compellability: judges and jurors), not competent to give the evidence, or
  3. the person is mentally or physically unable to give the evidence and it is not reasonably practicable to overcome that inability, or
  4. it would be unlawful for the person to give the evidence, or
  5. a provision of this Act prohibits the evidence being given, or
  6. all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or secure his or her attendance, but without success, or
  7. all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success.

Sections 63-65 of the Evidence Act 1995 deals with the laws pertaining to unavailable witnesses.

In civil proceedings, for example, a witness who saw or heard a representation about an asserted fact being made by an unavailable witness may give evidence of that representation. A document containing a written representation of an unavailable witness is also admissible.

It must be noted that several exceptions under these Sections do not apply unless the party provides reasonable notice in writing of intention to adduce hearsay evidence.

Admissions.

Under Section 81 of the Evidence Act, admissions made out of court or an out of court statement are admissible.

Admissions are considered reliable because they are statements made against the interests of the maker. However, under Section 84, an admission made out of court is not admissible if it was induced by threats, violence or other oppressive or degrading conduct.

Other exceptions under the Evidence Act include contemporaneous statements, or statements occurring at the same time about a person's health, business records, tags and labels, electronic communications, public or general rights, and use of evidence in interlocutory proceedings.

Under these specific exceptions, the hearsay statement may be admissible.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.