59. The hearsay rule-exclusion of hearsay evidence

59. The hearsay rule-exclusion of hearsay evidence

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

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

(2A) For the purposes of determining under subsection (1) whether it can reasonably be supposed that the person intended to assert a particular fact by the representation, the court may have regard to the circumstances in which the representation was made.

Note

Subsection (2A) was inserted as a response to the decision of the Supreme Court of New South Wales in R v Hannes (2000) 158 FLR 359.

Notes

1. The Commonwealth Act and New South Wales Act include another subsection.

2. Specific exceptions to the hearsay rule are as follows-

· evidence relevant for a non-hearsay purpose (section 60)
· first-hand hearsay -
· civil proceedings, if the maker of the representation is unavailable (section 63) or available (section 64)
· criminal proceedings, if the maker of the representation is unavailable (section 65) or available (section 66)
· contemporaneous statements about a person's health etc. (section 66A)
· business records (section 69)
· tags and labels (section 70)
· electronic communications (section 71)
· Aboriginal and Torres Strait Islander traditional laws and customs (section 72)
· marriage, family history or family relationships (section 73)
· public or general rights (section 74)
· use of evidence in interlocutory proceedings (section 75)
· admissions (section 81)
· representations about employment or authority (section 87(2))
· exceptions to the rule excluding evidence of judgments and convictions (section 92(3))
· character of and expert opinion about accused persons (sections 110 and 111).

Other provisions of this Act, or of other laws, may operate as further exceptions.

Examples

1. D is the defendant in a sexual assault trial. W has made a statement to the police that X told W that X had seen D leave a night club with the victim shortly before the sexual assault is alleged to have occurred. Unless an exception to the hearsay rule applies, evidence of what X told W cannot be given at the trial.

2. P had told W that the handbrake on W's car did not work. Unless an exception to the hearsay rule applies, evidence of that statement cannot be given by P, W or anyone else to prove that the handbrake was defective. 3. W had bought a video cassette recorder and written down its serial number on a document. Unless an exception to the hearsay rule applies, the document is inadmissible to prove that a video cassette recorder later found in D's possession was the video cassette recorder bought by W.

The operation of hearsay in Victoria is modified by s 377 of the Criminal Procedure Act. This section applies only to child witnesses in relation to sexual offences, and allows evidence of later complaint to be given even where it does not satisfy the requirements of s 66.

Section 81 provides that admissions are not subject to the hearsay rule.