170. Evidence relating to certain matters

170. Evidence relating to certain matters

(1) Evidence of a fact that is, because of a provision of this Act referred to in the Table, to be proved in relation to a document or thing may be given by a person permitted under section 171 to give such evidence.

Table

Provisions of this Act Subject-matter Section 48
Proof of contents of documents Sections 63, 64 and 65
Hearsay exceptions for "first-hand" hearsay Section 69
Hearsay exception for business records Section 70
Hearsay exception for tags, labels and other writing Section 71
Hearsay exception for telecommunications
The provisions of Part 4.3 Facilitation of proof

Note

The Table to section 170 of the Commonwealth Act includes a reference to section 182 (Commonwealth records) of that Act.

(2) Evidence may be given by affidavit or, if the evidence relates to a public document, by a written statement.

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126. Loss of client legal privilege-related communications and documents

126. Loss of client legal privilege - related communications and documents

If, because of the application of section 121, 122, 123, 124 or 125, this Division does not prevent the adducing of evidence of a communication or the contents of a document, those sections do not prevent the adducing of evidence of another communication or document if it is reasonably necessary to enable a proper understanding of the communication or document.

Example

A lawyer advises his client to understate her income for the previous year to evade taxation because of her potential tax liability "as set out in my previous letter to you dated 11 August 1994". In proceedings against the taxpayer for tax evasion, evidence of the contents of the letter dated 11 August 1994 may be admissible (even if that letter would otherwise be
privileged) to enable a proper understanding of the second letter.

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81. Hearsay and opinion rules - exception for admissions and related representations

81. Hearsay and opinion rules - exception for admissions and related representations

(1) The hearsay rule and the opinion rule do not apply to evidence of an admission.

(2) The hearsay rule and the opinion rule do not apply to evidence of a previous representation-

(a) that was made in relation to an admission at the time the admission was made, or shortly before or after that time; and

(b) to which it is reasonably necessary to refer in order to understand the admission.

Note

Specific exclusionary rules relating to admissions are as follows-

· evidence of admissions that is not first-hand (section 82)
· use of admissions against third parties (section 83)
· admissions influenced by violence and certain other conduct (section 84)
· unreliable admissions of accused persons (section 85)
· records of oral questioning of accused persons (section 86)

Example

D admits to W, his best friend, that he sexually assaulted V. In D's trial for the sexual assault, the prosecution may lead evidence from W-

(a) that D made the admission to W as proof of the truth of that admission; and

(b) that W formed the opinion that D was sane when he made the admission.

Admission is defined in Part 1 of the Dictionary.

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79. Exception - opinions based on specialised knowledge

79. Exception - opinions based on specialised knowledge

(1) If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.

(2) To avoid doubt, and without limiting subsection (1)-

(a) a reference in that subsection to specialised knowledge includes a reference to specialised knowledge of child development and child behaviour (including specialised knowledge of the impact of sexual abuse on children and their development and behaviour during and following the abuse); and

(b) a reference in that subsection to an opinion of a person includes, if the person has specialised knowledge of the kind referred to in paragraph (a), a reference to an opinion relating to either or both of the following-

(i) the development and behaviour of children generally;

(ii) the development and behaviour of children who have been victims of sexual offences, or offences similar to sexual offences.

In R v Nguyen (Ruling No 1) [2010] VSCA 438, Lasry J ruled that evidence about the effects of the use of amphetamine over a sustained period from Police Medial Officer, Dr Morris Odell, was relevant and admissible specialised knowledge. The submission that the opinion was general and did not relate specifically to the accused (who the witness had not examined) was rejected.

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78A Exception - Aboriginal and Torres Strait Islander traditional laws and customs

78A. Exception - Aboriginal and Torres Strait Islander traditional laws and customs

The opinion rule does not apply to evidence of an opinion expressed by a member of an Aboriginal or Torres Strait Islander group about the existence or non-existence, or the content, of the traditional laws and customs of the group.

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78. Exception - lay opinions

78. Exception - lay opinions

The opinion rule does not apply to evidence of an opinion expressed by a
person if-

(a) the opinion is based on what the person saw, heard or otherwise perceived about a matter or event; and

(b) evidence of the opinion is necessary to obtain an adequate account or understanding of the person's perception of the matter or event.

'Necessary' in the context of (b) does not refer to absolute necessity: Jackson v Lithgow City Council [2010] NSWCA 136. Allsop P noted what had been written in Odgers Uniform Evidence Law (2008, 8th Ed, Lawbook Co, p 302) prior to the matter going to the High Court, but found that no distinction need be drawn between an opinion only being a 'compendious description' of what was perceived and an opinion which 'actually draws an inference' from what was perceived.

Basten JA (agreeing with Allsop P and Grove J) said [at 71],

71 When used in the Evidence Act, the term “necessary” connotes a higher hurdle to surmount than that which is ‘helpful’, ‘convenient’ or ‘desirable’, but does not require absolute necessity, in the sense of being the sole means of proof. Whether the exception is satisfied in a particular case may need to take account of the purpose or purposes underlying the general exclusion and the purpose of the exception.

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77. Exception - evidence relevant otherwise than as opinion evidence

77. Exception - evidence relevant otherwise than as opinion evidence

The opinion rule does not apply to evidence of an opinion that is admitted because it is relevant for a purpose other than proof of the existence of a fact about the existence of which the opinion was expressed.

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75. Exception - interlocutory proceedings

75. Exception - interlocutory proceedings

In an interlocutory proceeding, the hearsay rule does not apply to evidence if the party who adduces it also adduces evidence of its source.

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74. Exception-reputation of public or general rights

74. Exception-reputation of public or general rights

(1) The hearsay rule does not apply to evidence of reputation concerning the existence, nature or extent of a public or general right.

(2) In a criminal proceeding, subsection (1) does not apply to evidence adduced by the prosecutor unless it tends to contradict evidence of a kind referred to in subsection (1) that has been admitted.

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73. Exception - reputation as to relationships and age

73. Exception - reputation as to relationships and age

(1) The hearsay rule does not apply to evidence of reputation concerning-

(a) whether a person was, at a particular time or at any time, a married person; or

(b) whether a man and a woman cohabiting at a particular time were married to each other at that time; or

(c) a person's age; or

(d) family history or a family relationship.

(2) In a criminal proceeding, subsection (1) does not apply to evidence adduced by a defendant unless-

(a) it tends to contradict evidence of a kind referred to in subsection (1) that has been admitted; or

(b) the defendant has given reasonable notice in writing to each other party of the defendant's intention to adduce the evidence.

(3) In a criminal proceeding, subsection (1) does not apply to evidence adduced by the prosecutor unless it tends to contradict evidence of a kind referred to in subsection (1) that has been admitted.

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72. Exception - Aboriginal and Torres Strait Islander traditional laws and customs

72. Exception - Aboriginal and Torres Strait Islander traditional laws and customs

The hearsay rule does not apply to evidence of a representation about the existence or non-existence, or the content, of the traditional laws and customs of an Aboriginal or Torres Strait Islander group.

Note

Section 72 formerly provided an exception for contemporaneous statements about a person's health etc. Such provision can now be found in section 66A.

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71. Exception - electronic communications

71. Exception - electronic communications

The hearsay rule does not apply to a representation contained in a document
recording an electronic communication so far as the representation is a
representation as to-

(a) the identity of the person from whom or on whose behalf the communication was sent; or

(b) the date on which or the time at which the communication was sent; or

(c) the destination of the communication or the identity of the person to whom the communication was addressed.

Notes

1. Division 3 of Part 4.3 contains presumptions about electronic
communications.

2. Section 182 of the Commonwealth Act gives section 71 of the
Commonwealth Act a wider application in relation to Commonwealth records.

3. Electronic communication is defined in the Dictionary.

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70. Exception - contents of tags, labels and writing

70. Exception - contents of tags, labels and writing

The hearsay rule does not apply to a tag or label attached to, or writing placed on, an object (including a document) if the tag or label or writing may reasonably be supposed to have been so attached or placed-

(a) in the course of a business; and

(b) for the purpose of describing or stating the identity, nature, ownership, destination, origin or weight of the object, or of the contents (if any) of the object.

Note

The Commonwealth Act has an additional subsection. It provides that the exception does not apply to Customs and Excise prosecutions. Section 5 of the Commonwealth Act extends the application of that subsection to proceedings in all Australian courts.

Businesses are defined in Part 2 Clause 1 of the Dictionary.

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66A Exception - contemporaneous statements about a person's health etc.

66A. Exception - contemporaneous statements about a person's health etc.

The hearsay rule does not apply to evidence of a previous representation made by a person if the representation was a contemporaneous representation about the person's health, feelings, sensations, intention, knowledge or state of mind.

This exception retains statements of intention such as that in Walton v R (1989) 166 CLR 283.

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64. Exception - civil proceedings if maker available

64. Exception - civil proceedings if maker available

(1) This section applies in a civil proceeding if a person who made a previous representation is available to give evidence about an asserted fact.

(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.

Note

Section 67 imposes notice requirements relating to this subsection.

Section 68 is about objections to notices that relate to this subsection.

(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.

(4) A document containing a representation to which subsection (3) applies must not be tendered before the conclusion of the examination in chief of the person who made the representation, unless the court gives leave.

Note

Clause 4 of Part 2 of the Dictionary is about the availability of persons.

The Dictionary provides that an asserted fact is defined at sub-s 59(1).

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60. Exception - evidence relevant for a non-hearsay purpose

60. Exception - evidence relevant for a non-hearsay purpose

(1) The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact.

(2) This section applies whether or not the person who made the representation had personal knowledge of the asserted fact (within the meaning of section 62(2)).

Note

Subsection (2) was inserted as a response to the decision of the High Court of Australia in Lee v The Queen (1998) 195 CLR 594.

(3) However, this section does not apply in a criminal proceeding to evidence of an admission.

Note

The admission might still be admissible under section 81 as an exception to the hearsay rule if it is "first-hand" hearsay-see section 82.

Admission is defined in Part 1 of the Dictionary

The Dictionary provides that an asserted fact is defined at sub-s 59(1).

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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.

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