The hearsay rule

The uniform Evidence Acts and the common law

7.4 Section 59 of the uniform Evidence Acts provides a general exclusionary hearsay rule:

(1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation.

(2) Such a fact is in this Part referred to as an asserted fact.

7.5 The Acts then provide exceptions to this rule in the three categories described above. Reasonable notice in writing is required in some circumstances where a party intends to adduce hearsay evidence.[4] The requirement of notice is discussed in Chapter 8.

7.6 The hearsay rule applies to evidence of representations made out of court—whether oral, written, or in the form of conduct—that are led as evidence of the truth of the fact the maker of the representation intended to assert by the representation. ‘Representation’ is a term defined by the uniform Evidence Acts.[5] The operation of the hearsay rule under the Acts resembles the operation of the hearsay rule at common law in that a general hearsay rule is adopted to which exceptions apply. Yet the scope of the s 59 hearsay rule and the common law hearsay rules differs. The exceptions to the hearsay rule under the Acts also differ in nature and scope from the exceptions—both common law and statutory—which qualified the common law hearsay rule.

7.7 Exceptions to the common law hearsay rule include: contemporaneous narrative statements; statements of deceased persons; dying declarations; declarations in the course of duty; declarations as to public or general rights; declarations of pedigree; statements in public documents; and out of court admissions and confessions. Statutory exceptions apply, for example, to business records and computer evidence.[6]

7.8 The common law hearsay rule and its judge-made exceptions were characterised by the ALRC in its previous Evidence inquiry as capable of excluding probative evidence and as overly complex, technical, artificial and replete with anomalies.[7] In addition, statutory provisions modifying the common law rules at the time were stated to be overly complex, overlapping and unrealistic in practice.[8]

The policy of the Acts

7.9 The ALRC stated that the retention of an exclusionary rule for hearsay evidence was justified on the following grounds:

  • 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 hearsay evidence can add to the time and cost of litigation; and

  • to admit hearsay evidence can unfairly catch the opposing party by surprise.[9]

7.10 The policy framework for the ALRC’s hearsay evidence proposals was set out in ALRC 26 and ALRC 38.[10] The starting point was the proposition that the ‘best evidence available’ to a party should be received. The view was taken that this would assist parties to present all relevant evidence and give the courts competing versions of the facts. In so doing, the appearance and reality of the fact-finding exercise would, on balance, be enhanced and so, in that respect, would the fairness of the trial process.

7.11 The concept of ‘best available evidence’ was said to involve two elements—the quality of the evidence and its availability.[11]

7.12 A distinction was drawn between first-hand and more remote hearsay for reasons to do with the quality of evidence. The view was taken that more remote hearsay is generally so unreliable that it should be inadmissible except where there are some guarantees of reliability. It was considered that remote hearsay would usually be of no value to the party seeking to call it and would only add to the time and cost of proceedings and difficulties in assessing its weight. Reasons to do with the quality of evidence also led to a distinction being drawn between statements made while relevant events were ‘fresh in the memory’ and statements which were not.[12]

7.13 Quality aside, the availability of evidence raises at least two issues—the physical availability of a witness or evidence; and the difficulty of producing a witness or evidence to the court, if available. It was observed that what is the best available evidence may depend upon balancing the importance and quality of evidence against the difficulty of producing it—in other words, balancing factors to do with the quality and availability of evidence.[13]

7.14 This general policy approach was subject to a major qualification for criminal trials. The concern to minimise wrongful convictions requires a more cautious approach to the admission of hearsay evidence against an accused. It was considered important that the accused be able to confront those who accuse him or her. Where the maker of the representation is unavailable, it was thought that some guarantees of trustworthiness should be required. At the same time, the concern to protect people from wrongful conviction was thought to justify fewer limits on the admissibility of evidence led by an accused person.[14]

7.15 The ALRC considered that, where relaxation of the hearsay rule leads to an increase in the hearsay evidence admissible, safeguards should be employed to minimise surprise and the possibility of fabrication, and to enable the party against whom the evidence is led to investigate, meet and test the evidence, whether by cross-examination or other means.[15]

7.16 A final policy concern identified was the impact on costs. It was noted that, while relaxation of the hearsay rule can save costs, it can also result in more evidence being led and collateral issues being raised. A concern also raised in this context was the need for clarity and simplicity.[16] For this reason, and the other concerns mentioned above, the view was taken that a cautious approach to any relaxation of the hearsay rule was warranted.[17]

7.17 It should also be noted that considerations of quality were identified as important to the general framework of the uniform Evidence Acts. The ALRC commented:

To the extent that the [civil trial] system operates under rules, the more anomalous, technical, rigid and obscure the rules seem, the more the system’s acceptability is lessened. The parties in a case can meet the situation by agreeing to ignore or waive the more unsatisfactory rules, as widely happens in the conduct of trials at present, particularly civil trials. This, however, only results in the rules lying in wait for the unwary and the party who does not have legal representation. Any rules or proposals that are complicated, difficult to understand or apply, produce anomalies, lack flexibility where this is needed or are very technical, require justification.[18]

7.18 Against this background, the first topic to consider is the interpretive difficulty posed by s 59. In particular, what is the meaning of ‘intention’ in that section?

[4] Evidence Act 1995 (Cth) s 67; Evidence Act 1995 (NSW) s 67; Evidence Act 2004 (NI) s 67; Evidence Act 2001 (Tas) s 67.

[5] Evidence Act 1995 (Cth) Dictionary, Pt 1; Evidence Act 1995 (NSW) Dictionary, Pt 1; Evidence Act 2004 (NI) Dictionary, Pt 1; Evidence Act 2001 (Tas) s 3.

[6] For example, Evidence (Business Records) Interim Arrangements Act 1984 (NT) (business records); Evidence Act 1906 (WA) ss 79B–79F (business records); Evidence Act 1929 (SA) s 45A (computer evidence); Evidence Act 1958 (Vic) s 55B (computer evidence).

[7] Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [329]–[340].

[8] Ibid, [341]–[345].

[9] See Ibid, [661]–[675]; Australian Law Reform Commission, Evidence, ALRC 38 (1987), [126].

[10] Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [48]–[49], [676]; Australian Law Reform Commission, Evidence, ALRC 38 (1987), [27]–[47], [139].

[11] Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [678].

[12] Ibid, [678].

[13] Ibid, [678].

[14] Ibid, [679].

[15] Ibid, [680].

[16] Australian Law Reform Commission, Evidence, ALRC 38 (1987), [46].

[17] Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [681].

[18] Australian Law Reform Commission, Evidence, ALRC 38 (1987), [34]–[35]; Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [36], [62].