What Is Hearsay?
Criminal defence lawyers are usually asked what is hearsay? Hearsay is an objection that is very common during a hearing or trial. It is the most common, and both solicitors and an accused should understand it.
The Law and Hearsay Rule
The hearsay rule is contained in section 59 of the Evidence Act. It provides that;
(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.
There are exceptions to this rule.
To understand the hearsay rule, consider the following example. If A witnessed a person hitting another person, and then told B about it. B cannot give evidence to establish the fact that a person hit another person. The only person that can give that evidence is A themselves.
Exceptions to the Hearsay Rule
There are numerous exceptions to the hearsay rule. They are as follows;
- evidence relevant for non-hearsay purpose s 60;
- criminal proceedings if maker unavailable s 65;
- criminal proceedings if maker available — s 66;
- contemporaneous statements about a person’s health etc — s 66A;
- business records — s 69;
- contents of tags, labels and writing — s 70;
- telecommunications — s 71;
- Aboriginal and Torres Strait Islander traditional laws and customs — s 72;
- reputation as to relationships and age — s 73;
- reputation of public or general rights — s 74; and
- Interlocutory proceedings — s 75.
It is important to note that the above exceptions apply only to first hand hearsay.
Essential Cases concerning Hearsay Rule
What is the hearsay rule can be best understood by looking at recent cases and their judgments.
- Regina v Suteski (2002) 56 NSWLR 182 – Held: Where a witness refuses to give evidence, he is an unavailable witness;
- Regina v Brown, Barwick and Brown [2006] NSWCCA 69 – Held: A witness who cannot remember an incident is not an unavailable witness;
- Regina v Skipworth [2006] NSWCCA 37 – Held: Held that a complaint made 66 days after the event may be still ‘fresh in the memory’;
- Regina v Gilbert Adam (1999) 47 NSWLR 267 Held: A view expressed by the trial judge that statement made 7 weeks after the event was still ‘fresh in the memory’ had ‘much to commend it’.
