8.6 Section 64 of the uniform Evidence Acts provides exceptions to the hearsay rule where, in a civil proceeding, a person who made a previous representation is available to give evidence about an asserted fact. Section 64(2) provides that:
(2) The hearsay rule does not apply to:
(a) evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made; or
(b) a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation;
if it would cause undue expense or undue delay, or would not be reasonably practicable, to call the person who made the representation to give evidence.
8.7 Questions have been raised about the relationship of s 64(2) and s 64(3). Section 64(3) provides that:
(3) If the person who made the representation has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by:
(a) that person; or
(b) a person who saw, heard or otherwise perceived the representation being made;
if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation.
The ‘fresh in the memory’ requirement
8.8 The exception in s 64(3) applies to evidence of a previous representation about a fact by allowing evidence of the previous representation to be admitted as evidence of the asserted fact where the occurrence of the asserted fact was fresh in the memory of the person who made the representation at the time the representation was made. The exception applies where the person who made the representation has been or is to be called to give evidence.
8.9 By contrast, a hearsay exception is created under subsection (2) without the ‘fresh in the memory’ limitation, and applies where it would cause undue expense or delay, or would not be reasonably practicable, to call the person who made the representation to give evidence.
8.10 The ALRC explained the reasons for applying a ‘fresh in the memory’ requirement in the first case but not the second as follows:
It has been questioned whether it is logical to require freshness of memory where the maker [of the previous representation] is available [to give evidence] and [is] called [to give evidence] and not [to] require it where the maker [of the previous representation] is not available [to give evidence]. Different considerations, however, apply. Where the witness is available, there is no need to admit the evidence of the prior statements except where the statement was ‘fresh’. It is then likely to be the least inaccurate account of the relevant events. The proposal overcomes some of the technicalities of the present laws of evidence and minimises the risk of adding to the time and cost of trials resulting from the admission of hearsay evidence. Where the witness is unavailable, however, different considerations apply. To exclude previous representations whenever made in those circumstances would deprive a party and the court of the ‘best available’ evidence.
8.11 As the passage explains, where the maker of the representation is not available to testify, the evidence must be led from another witness. The best available evidence will be that which the witness can give, irrespective of whether the fact about which the representation is made is fresh in the memory of another person at the time the other person makes a representation about the fact.
8.12 On the other hand, where the maker of the representation has been or is to be called to testify, other policy concerns are relevant. This is so whether the person who gives evidence of the previous representation is the person who made it, or a person who saw, heard or otherwise perceived the representation being made (as contemplated by s 64(3)(b)).
Submissions and consultations
8.13 In DP 69 the Commissions proposed that s 64(3) be amended to remove the requirement that, when the previous representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation.
8.14 Few submissions or consultations addressed Proposal 7–3. A New South Wales District Court judge noted that reference is not often made to the ‘fresh in the memory’ requirement in s 64(3). Opposition to the proposal was voiced by the Law Society of South Australia, which said that the requirement should not be removed because the ‘reason this exception [in s 64(3)] is allowed is that the asserted fact was cogent’ and fresh in the memory so that ‘there is no necessity to call the person who made the representation’.
The Commissions’ view
8.15 The Commissions’ view is that the fresh in the memory requirement should be removed from s 64(3). Although the ALRC’s original policy distinction remains valid, in practice the requirement of freshness in memory is not considered an important touchstone of evidentiary reliability. While the original policy distinction was designed to put the ‘best evidence’ before the court, practical experience suggests that any difference in the quality of hearsay evidence that satisfies the fresh in memory requirement and evidence that does not is slight. Further, the difference can be dealt with as a matter of the weight given to the evidence, or in exercise of the provisions in Part 3.11.
8.16 It is also more efficient to permit first-hand hearsay evidence to be admitted and to subject the witness to cross-examination than to delay proceedings with argument about whether a previous representation was made while fresh in the memory of the person who made it. Any increased risk that the evidence admitted is unreliable is minimal. Indeed, hearsay evidence is already admissible under s 64(2) without being subject to the requirement. The discretions in ss 135 and 136 to refuse to admit and to limit the use of evidence would apply.
Recommendation 8–1 Section 64(3) of the uniform Evidence Acts should be amended to remove the requirement that, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation.
Evidence influenced by violence and certain other conduct
8.17 Section 66 of the uniform Evidence Acts provides exceptions to the hearsay rule that apply in criminal proceedings if the maker of a previous representation is available to give evidence, within the meaning of the Acts.
8.18 It was suggested to the Commissions at a late stage in the Inquiry that new subsections (5) and (6) should be added to s 66 to align the provision with the language of s 84, which excludes evidence of admissions influenced by violence and certain other conduct. The suggested subsections would read:
(5) Prosecution evidence of a previous representation is not admissible unless the court is satisfied that the representation, and the making of the representation, were not influenced by:
(a) violent, oppressive, inhuman or degrading conduct, whether towards the person who made the representation or towards another person; or
(b) a threat of conduct of that kind.
(6) Subsection (5) only applies if the party against whom evidence of the representation is adduced has raised in the proceeding an issue about whether the representation or its making were so influenced.
8.19 It is said that an argument can be made in favour of a corresponding amendment to s 85. It is further said that a preferred form of language would be to use the expression ‘torture or cruel, inhuman or degrading treatment or punishment’ to align the provisions with the phrase used in international law.
The Commissions’ view
8.20 The suggested amendment of s 66 (and s 85) is interesting and worthy of consideration. The Commissions are of the view that this possibility should be kept under consideration, and that investigation into the utility and desirability of the suggestion should be undertaken when possible. However, given the late stage in the Inquiry at which the suggestion was made, it has not been possible to consult or solicit submissions regarding the matter. Further, at least some of the ground covered by the suggested amendments is currently covered by the s 138 discretion to exclude improperly or illegally obtained evidence.
 The nature of the ‘fresh in the memory’ test is discussed in detail later in this chapter.
Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985),  (emphasis in original).
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), Proposal 7–3.
 Confidential, Consultation, Sydney, 27 July 2005.
The Law Society of South Australia, Submission E 69, 15 September 2005.