Notice where hearsay evidence is to be adduced

8.197 Section 67 of the uniform Evidence Acts makes the operation of certain of the first-hand hearsay exceptions conditional on notice being given to each other party by the party intending to adduce the evidence. Briefly, notice is required:

  • in both civil and criminal trials where the maker of the representation is unavailable and reliance is placed on s 63(2) or ss 65(2), (3) or (8); and

  • in civil trials under s 64(2) where the maker is available but the party adducing the evidence proposes not to call the maker because it would cause undue expense or delay or would not be reasonably practicable.

8.198 Notice is to be given in accordance with any regulations or rules of court made for the purposes of s 67.[233] Section 67(4) provides that failure to give notice may be excused by the court. The section does not set out criteria for the exercise of this discretion. However, the factors set out in s 192 of the Acts will apply, including the extent to which making a direction would be unfair to a party or witness, the importance of the evidence and whether it is possible to grant an adjournment.

8.199 In its previous Evidence inquiry, the ALRC spoke of the need for notice provisions in all trials where the maker of a representation out of court is not available, and a party to litigation intends to lead evidence of the out of court representation. The ALRC said the proposals later enacted as the general hearsay rule and its exceptions extend

the range of hearsay evidence that is admissible and creates the danger of a party being caught by surprise and being unable to check on the unavailability of the maker or the substance of the evidence. New safeguards are required. It is proposed that a party wishing to rely upon this relaxation of the hearsay rule in civil or criminal trials should be obliged to notify the other parties and give details of when, where and by whom the representation was made, why that person is not available, and the substance of the representation and other relevant representations by that person and the grounds [relied] upon. Concern has been expressed about whether this will open up collateral material and add to the time and cost of litigation. The material, however, would have to relate to the issues [in the proceeding].[234]

8.200 It is helpful to keep these considerations in mind in evaluating the existing notice provisions in the uniform Evidence Acts, and in evaluating submissions and consultations addressing the notice provisions.

Notice in civil proceedings

8.201 In IP 28, the view was noted that, while it is common for the Crown to give notice where hearsay evidence is to be adduced in criminal proceedings, the notice provisions are largely ignored in civil proceedings.[235] Comments were sought on how s 67 of the uniform Evidence Acts has operated in civil proceedings.[236]

8.202 Suggestions were noted in IP 28 and DP 69 that, in civil proceedings, the prescriptive form of notice required by the uniform Evidence Acts, regulations and rules of court should be replaced by a simple requirement to serve hearsay evidence on the other party.[237] This suggestion directs attention outside the uniform Evidence Acts. In terms of the Acts themselves, s 67 establishes a relatively simple requirement: the party intending to lead the hearsay evidence must give reasonable notice of its intention to do so to each other party. While s 67 does not detail a series of items for inclusion in any notice, meaningful notice of the matter required to be stated by s 67(3) could not be given without indicating what the evidence is, and the statutory provisions and grounds on which the party intends to rely. Any more detailed content requirements may be dealt with in rules of court.

8.203 Leaving aside the nature of the notice requirement, conflicting accounts were received of the extent to which the requirement is complied with and enforced in practice. Some practitioners state that it is important to comply with the notice requirements because NSW judges do not hesitate to exclude hearsay evidence where notice has not been given.[238] Others say that the notice provisions are rarely used,[239] but do not call for any change. One comment is that s 67 provides a simple procedure, the commonsense use of which should be encouraged.[240]

The Commissions’ view

8.204 The issue of notice of intention to adduce hearsay in civil proceedings did not receive a great deal of attention in submissions and consultations.[241]

8.205 Given the fact that few responses regarding s 67 were received by the Commissions, and that the material received gave conflicting accounts of how s 67 operates in practice, it is not possible to assess whether the provisions are operating satisfactorily or require amendment. For cases where the maker of the representation is not available to testify, an assessment of that kind would require evaluation of the operation of s 67 in practice against the general policy behind the notice provisions which has been referred to above, for cases where the maker of the representation is not available to testify. In relation to civil trials where the maker is available, the ALRC set out additional reasons of policy justifying the notice provisions:

Costs can be saved in civil trials in not having to call witnesses. The proposal extends existing law by enabling a party to avoid having to call witnesses who are available by serving notice on the other parties containing the above details and, should objection be received, obtaining the court’s leave—before or at trial—[not to] call the witness.[242] If there is no objection the representation may be received in evidence without proof. In this context the notice provision not only protects the parties but also gives the court the means to regulate the admission of firsthand hearsay in civil trials. The judge will be able to resolve the issue of whether the witness should be called by directing that [the witness] be called and placing the burden of costs on the party objecting or, if in doubt, reserving the question of costs for further consideration after the witness’ evidence is concluded. In this way unnecessary objections can be discouraged. The procedure introduces a discretionary element and therefore uncertainty in preparation for trial. It addresses that problem, however, by enabling the issues to be resolved before the trial commences should a party wish to do so.[243]

8.206 Section 67 represents the reconciliation of several competing considerations, and a balance struck between those ideas. Submissions and consultations directed to these considerations were not received. Further, if amendment is required, it is not currently possible to know what form any amendment should take. Accordingly, the Commissions do not recommend any change to the notice requirement for civil proceedings.

Notice in criminal proceedings

8.207 The Law Council raised an issue concerning the giving of notice in criminal proceedings. As discussed above, s 65(9) allows a party to adduce hearsay evidence that qualifies or explains a representation about a matter in relation to which evidence has been led by the defendant and which has been admitted under s 65(8)(a). The Law Council submits:

The vagueness of the term ‘the matter’ [in s 65(9)], the possible ignorance of the accused about the evidence available to the prosecution, and the unavailability of an advance ruling by the trial judge make it difficult for the defence to decide whether to call hearsay evidence under s 65(8). Section 67(1) requires the defence to give notice of its intention to call hearsay evidence under s 65(8) but there is no subsequent corresponding obligation on the prosecution. The Council believes such notice should be given.[244]

8.208 In DP 69, the Commissions asked if s 67 should be amended to require the prosecution to give notice of an intention to adduce evidence under s 65(9). Some support was received for an amendment along these lines.[245]

8.209 However, the NSW DPP disagrees with the amendment.[246] It suggests that an amendment along the lines of DP 69, Question 7–4, has no rationale.

An obligation on the prosecution to give such notice could only apply where the defendant has in fact given notice to the prosecution and has adduced the evidence, as it is not until this stage is reached that the prosecution will be in a position to know what it is that it may adduce evidence about. Section 65(9) only allows the prosecution to adduce the evidence once the evidence of the defendant has been admitted.[247]

8.210 The NSW DPP questions the utility for the defendant in receiving such notice from the prosecution at that stage of the proceedings.

The Commissions’ views

‘The matter’ not vague

8.211 Earlier in this chapter, attention was given to the meaning of the expressions ‘about a matter’ and ‘about the matter’ used in s 65(9). It was noted that the meaning of these expressions is constrained by the purpose for which the defendant tendered the evidence under s 65(8). The relevance requirement in s 55 requires the defendant’s evidence to be capable of rationally affecting the assessment of the probability of the existence of a fact in issue. The fact in issue ‘about’ which the defendant adduces evidence, which is admitted under s 65(8), is ‘the matter’ ‘about’ which another party to the proceedings may then tender evidence under s 65(9). It follows that the nature of the evidence admissible under s 65(9) is a factual question turning on the nature of the evidence admitted under s 65(8). These considerations address one of the reasons notice of intention to lead evidence under s 65(9) might be thought necessary—namely, perceived vagueness in the expressions ‘about a matter’ and ‘about the matter’.

Notice superfluous

8.212 When formulating proposals for the hearsay provisions now found in Part 3.2 of the uniform Evidence Acts, the ALRC noted that a ‘major qualification’ was necessary to general hearsay provisions for criminal proceedings. The ALRC said:

The concern to minimise wrongful convictions requires a more cautious approach to the admission of hearsay evidence against the accused. The best available evidence for the prosecution should not necessarily be received.[248]

8.213 Adding a notice requirement to s 65(9) would further these policies. However, the amendment would likely serve no practical purpose and could create an unnecessary formal distraction from the smooth running of criminal trials. Given that the prosecution will not be in a position to know what evidence it may need to adduce in reply to the defendant, the stage at which notice would be received would be late. The formal attractions of the amendment would likely produce no substantive improvements in the administration of criminal jurisdiction. The Commissions do not recommend including such a notice requirement.

[233] See, eg, Evidence Regulations 1995 (Cth) r 5; Federal Court Rules (Cth) O 33 r 16.

[234]Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [695].

[235]Australian Law Reform Commission, Review of the Evidence Act 1995, IP 28 (2004), [5.90]. In relation to notice in criminal proceedings, the NSW PDO states that ‘the traditional time for service of these notices appears to be the Friday afternoon before the trial is to commence. Judges appear not to be prepared to apply any sanctions for late notice of tendency and coincidence evidence’: New South Wales Public Defenders Office, Submission E 50, 21 April 2005.

[236]Australian Law Reform Commission, Review of the Evidence Act 1995, IP 28 (2004), Q 5–16.

[237]Ibid, [5.91]; Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005), [7.280].

[238] For example, B Donovan, Consultation, Sydney, 21 February 2005.

[239] For example, P Greenwood, Submission E 47, 11 March 2005; S Finch, Consultation, Sydney, 3 March 2005.

[240]P Greenwood, Submission E 47, 11 March 2005.

[241] One Federal Court judge recalled seeing notice given under 67 only twice: Justice C Branson, Consultation, Sydney, 25 July 2005.

[242] The ALRC supported a provision that allowed a party to object to the tender of hearsay evidence in civil proceedings if the maker of the hearsay representation is available. Section 68 is such a provision.

[243]Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [695].

[244]Law Council of Australia, Submission E 32, 4 March 2005.

[245]C Ying, Submission E 88, 16 September 2005; New South Wales Public Defenders Office, Submission E 89, 19 September 2005; The Criminal Law Committee and the Litigation Law and Practice Committee of the Law Society of New South Wales, Submission E 103, 22 September 2005.

[246]Director of Public Prosecutions (NSW), Submission E 87, 16 September 2005.

[247]Ibid (emphasis original).

[248]Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [679].