167. Requests may be made about certain matters

167. Requests may be made about certain matters

A party may make a reasonable request to another party for the purpose of determining a question that relates to-

(a) a previous representation; or

(b) evidence of a conviction of a person for an offence; or

(c) the authenticity, identity or admissibility of a document or thing.

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166. Definition of request

166. Definition of request

In this Division, request means a request that a party (the requesting party) makes to another party to do one or more of the following-

(a) to produce to the requesting party the whole or a part of a specified document or thing;

(b) to permit the requesting party, adequately and in an appropriate way, to examine, test or copy the whole or a part of a specified document or thing;

(c) to call as a witness a specified person believed to be concerned in the production or maintenance of a specified document or thing;

(d) to call as a witness a specified person in whose possession or under
whose control a specified document or thing is believed to be or to have been at any time;

(e) in relation to a document of the kind referred to in paragraph (b) or c) of the definition of document in the Dictionary - to permit the requesting party, adequately and in an appropriate way, to examine and test the document and the way in which it was produced and has been kept;

(f) in relation to evidence of a previous representation - to call as a witness the person who made the previous representation;

(g) in relation to evidence that a person has been convicted of an offence, being evidence to which section 92(2) applies-to call as a witness a person who gave evidence in the proceeding in which the person was so convicted.

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108B. Further protections - previous representations of an accused who is not a witness

108B. Further protections - previous representations of an accused who is not a witness

(1) This section applies only in a criminal proceeding and so applies in addition to section 108A.

(2) If the person referred to in that section is a defendant, the credibility evidence is not admissible unless the court gives leave.

(3) Despite subsection (2), leave is not required if the evidence is about whether the defendant-

(a) is biased or has a motive to be untruthful; or

(b) is, or was, unable to be aware of or recall matters to which his or her previous representation relates; or

(c) has made a prior inconsistent statement.

(4) The prosecution must not be given leave under subsection (2) unless evidence adduced by the defendant has been admitted that-

(a) tends to prove that a witness called by the prosecution has a tendency to be untruthful; and

(b) is relevant solely or mainly to the witness's credibility.

(5) A reference in subsection (4) to evidence does not include a reference to evidence of conduct in relation to-

(a) the events in relation to which the defendant is being prosecuted; or

(b) the investigation of the offence for which the defendant is being prosecuted.

(6) Another defendant must not be given leave under subsection (2) unless the previous representation of the defendant that has been admitted includes evidence adverse to the defendant seeking leave.

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108A. Admissibility of evidence of credibility of person who has made a previous representation

108A. Admissibility of evidence of credibility of person who has made a previous representation

(1) If-

(a) evidence of a previous representation has been admitted in a proceeding; and

(b) the person who made the representation has not been called, and will not be called, to give evidence in the proceeding-

credibility evidence about the person who made the representation is not admissible unless the evidence could substantially affect the assessment of the person's credibility.

(2) Without limiting the matters to which the court may have regard for the purposes of subsection (1), it is to have regard to-

(a) whether the evidence tends to prove that the person who made the representation knowingly or recklessly made a false representation when the person was under an obligation to tell the truth; and

(b) the period that elapsed between the doing of the acts or the occurrence of the events to which the representation related and the making of the representation.

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102. The credibility rule

102. The credibility rule

Credibility evidence about a witness is not admissible.

Notes

1. Specific exceptions to the credibility rule are as follows-

· evidence adduced in cross-examination (sections 103 and 104)
· evidence in rebuttal of denials (section 106)
· evidence to re-establish credibility (section 108)
· evidence of persons with specialised knowledge (section 108C)
· character of accused persons (section 110) Other provisions of this Act, or of other laws, may operate as further exceptions.

2. Sections 108A and 108B deal with the admission of credibility evidence about a person who has made a previous representation but is not a witness.

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87. Admissions made with authority

87. Admissions made with authority

(1) For the purpose of determining whether a previous representation made by a person is also taken to be an admission by a party, the court is to admit the representation if it is reasonably open to find that-

(a) when the representation was made, the person had authority to make statements on behalf of the party in relation to the matter with respect to which the representation was made; or

(b) when the representation was made, the person was an employee of the party, or had authority otherwise to act for the party, and the representation related to a matter within the scope of the person's employment or authority; or

(c) the representation was made by the person in furtherance of a common purpose (whether lawful or not) that the person had with the party or one or more persons including the party.

(2) For the purposes of this section, the hearsay rule does not apply to a previous representation made by a person that tends to prove-

(a) that the person had authority to make statements on behalf of another person in relation to a matter; or

(b) that the person was an employee of another person or had authority otherwise to act for another person; or

(c) the scope of the person's employment or authority.

Admission is defined in Part 1 of the Dictionary.

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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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69. Exception - business records

69. Exception - business records

(1) This section applies to a document that-

(a) either-

(i) is or forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a business; or

(ii) at any time was or formed part of such a record; and

(b) contains a previous representation made or recorded in the document in the course of, or for the purposes of, the business.

(2) The hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made-

(a) by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact; or

(b) on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact.

(3) Subsection (2) does not apply if the representation-

(a) was prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with, an Australian or overseas proceeding; or

(b) was made in connection with an investigation relating or leading to a criminal proceeding.

(4) If-

(a) the occurrence of an event of a particular kind is in question; and

(b) in the course of a business, a system has been followed of making and keeping a record of the occurrence of all events of that kind-

the hearsay rule does not apply to evidence that tends to prove that there is no record kept, in accordance with that system, of the occurrence of the event.

(5) For the purposes of this section, a person is taken to have had personal knowledge of a fact if the person's knowledge of the fact was or might reasonably be supposed to have been based on what the person saw, heard or otherwise perceived (other than a previous representation made by a person about the fact).

Note

1. Sections 48, 49, 50, 146, 147 and 150(1) are relevant to the mode of proof, and authentication, of business records.

2. Section 182 of the Commonwealth Act gives section 69 of the Commonwealth Act a wider application in relation to Commonwealth records.

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

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

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68. Objections to tender of hearsay evidence in civil proceedings if maker available

68. Objections to tender of hearsay evidence in civil proceedings if maker available

(1) In a civil proceeding, if the notice discloses that it is not intended to call the person who made the previous representation concerned because it-

(a) would cause undue expense or undue delay; or

(b) would not be reasonably practicable-

a party may, not later than 21 days after notice has been given, object to the tender of the evidence, or of a specified part of the evidence.

(2) The objection is to be made by giving to each other party a written notice setting out the grounds on which the objection is made.

(3) The court may, on the application of a party, determine the objection at or before the hearing.

(4) If the objection is unreasonable, the court may order that, in any event, the party objecting is to bear the costs incurred by another party-

(a) in relation to the objection; and

(b) in calling the person who made the representation to give evidence.

Note

This subsection differs from section 68(4) of the Commonwealth Act because of the different way costs are ascertained by Victorian courts.

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67. Notice to be given

67. Notice to be given

(1) Sections 63(2), 64(2) and 65(2), (3) and (8) do not apply to evidence adduced by a party unless that party has given reasonable notice in writing to each other party of the party's intention to adduce the evidence.

(2) Notices given under subsection (1) are to be given in accordance with any regulations or rules of court made for the purposes of this section.

(3) The notice must state-

(a) the particular provisions of this Division on which the party intends to rely in arguing that the hearsay rule does not apply to the evidence; and

(b) if section 64(2) is such a provision - the grounds, specified in that provision, on which the party intends to rely.

(4) Despite subsection (1), if notice has not been given, the court may, on the application of a party, direct that one or more of those subsections is to apply despite the party's failure to give notice.

(5) The direction-

(a) is subject to such conditions (if any) as the court thinks fit; and

(b) in particular, may provide that, in relation to specified evidence, the subsection or subsections concerned apply with such modifications as the court specifies.

In DPP v Easwaralingam & Anor [2010] VSC 437 the Supreme Court, undertaking a judicial review of a magistrate's decision to refuse to admit an unavaialable witness's statement in a criminal case because of lack of sufficient notice, declined to provide a blanket statement of what might comprise reasonable notice.

Pagone J [at 18]:

18 Putting that matter to one side, however, the learned Magistrate was in error in concluding that the notice had not been served within a reasonable time or had not given sufficient detail of the matters which were required to be provided by the legislation. Section 67(1) requires that reasonable notice be given of a party’s intention to adduce the evidence. What constitutes reasonable notice is something which must depend upon all of the circumstances of the case. In this case notice of an intention to rely upon the written statement was given to the accused’s legal representatives promptly as soon as the unavailability of the witness became known. Section 67(3) provides that the notice must state “the particular provisions” of the division “on which the party intends to rely in arguing that the hearsay rule does not apply to the evidence”. In this case the written notice formally served on 24 February 2010, but reliance upon which was conceded to have been conveyed on 23 February 2010, identified s 65 as the section upon which reliance was placed and, on page 2 of the notice, there was express statement of an intention to rely upon s 65(2)(a) or (b) or (c) or (d), s 65(3)(a) or (b) or 65(8)(a) or (b). Some of these provisions may not have sustained the application but there was asserted the provisions on which reliance was placed. Her Honour’s conclusions to the contrary were not sustainable.

Also see the discussion at s 63 of the more flexible approach taken to the serving of notice in civil cases.

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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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65. Exception-criminal proceedings if maker not available

65. Exception-criminal proceedings if maker not available

(1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.

(2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation-

(a) was made under a duty to make that representation or to make representations of that kind; or

(b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication; or

(c) was made in circumstances that make it highly probable that the representation is reliable; or

(d) was-

(i) against the interests of the person who made it at the time it was made; and

(ii) made in circumstances that make it likely that the representation is reliable.

Note

Section 67 imposes notice requirements relating to this subsection.

(3) The hearsay rule does not apply to evidence of a previous representation made in the course of giving evidence in an Australian or overseas proceeding if, in that proceeding, the defendant in the proceeding to which this section is being applied-

a) examined the person who made the representation about it; or

(b) had a reasonable opportunity to cross-examine the person who made the representation about it.

Note

Section 67 imposes notice requirements relating to this subsection.

(4) If there is more than one defendant in the criminal proceeding, evidence of a previous representation that-

(a) is given in an Australian or overseas proceeding; and

(b) is admitted into evidence in the criminal proceeding because of
subsection (3)-

cannot be used against a defendant who did not cross-examine, and did not have a reasonable opportunity to cross-examine, the person about the
representation.

(5) For the purposes of subsections (3) and (4), a defendant is taken to have had a reasonable opportunity to cross-examine a person if the defendant was not present at a time when the cross-examination of a person might have been conducted but-

(a) could reasonably have been present at that time; and

(b) if present could have cross-examined the person

.

(6) Evidence of the making of a representation to which subsection (3) applies may be adduced by producing a transcript, or a recording, of the representation that is authenticated by-

(a) the person to whom, or the court or other body to which, the representation was made; or

(b) if applicable, the registrar or other proper officer of the court or other body to which the representation was made; or

(c) the person or body responsible for producing the transcript or recording.

(7) Without limiting subsection (2)(d), a representation is taken for the purposes of that subsection to be against the interests of the person who made it if it tends-

(a) to damage the person's reputation; or

(b) to show that the person has committed an offence for which the person has not been convicted; or

(c) to show that the person is liable in an action for damages.

(8) The hearsay rule does not apply to-

(a) evidence of a previous representation adduced by a defendant if the evidence is given by a person who saw, heard or otherwise perceived the representation being made; or

(b) a document tendered as evidence by a defendant so far as it contains a previous representation, or another representation to which it is reasonably necessary to refer in order to understand the representation.

Note

Section 67 imposes notice requirements relating to this subsection.

(9) If evidence of a previous representation about a matter has been adduced by a defendant and has been admitted, the hearsay rule does not apply to evidence of another representation about the matter that-

(a) is adduced by another party; and

(b) is given by a person who saw, heard or otherwise perceived the other representation being made.

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).

Evidence admissible under this section may nevertheless excluded in the exercise of discretion, notably s 137. In R v Suteski [2002] NSWCCA 509 it was held the trial judge properly admitted the record of interview of a co-accused who was not available to be called as a witness. The Court of Appeal held that the forensic disadvantages to the accused were appropriately considered and had not caused unfair prejudice. The recording was tendered with a transcript provided as an aide.

The Victorian Court of Appeal first considered an interlocutory appeal from the County Court in R v Darmody [2010] VSCA 41. The prosecutor sought and was granted leave by the trial judge to lead evidence from the committal hearing after the Crown witness refused to give evidence at trial, apparently under intimidation. The Court found that clause 4(1)(f) of Pt 2 of the Dictionary was satisfied in that,

All reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success.

The appeal upheld the trial judge's decision to allow the evidence under s 65. The Court confirmed that discretion to exclude under s 137 existed but determined that, in this case, the probative value was not outweighed by the prejudicial effect.

In DPP v B B; DPP v Q N [2010] VSCA 211 the trial judge admitted a dead man's statement under s 65(3) but then rejected the evidence in exercise of discretion under s 137. The following reasons were given [related in the appeal, at 10]:

... the combination of effective inability to fully explore cross-examination because of pressure from the magistrate and lack of clarity as to the actual responses to cross-examination because of the difficulty raised by the interpreter, together with the inability of the jury to see the witness in my view, is properly to be characterised as unfair prejudice.

The Court of Appeal held these grounds were insufficient in the circumstances, either alone or in combination.

Bongiorno JA [at 16, Harper and Hansen JJA also agreeing]:

16 In enacting s 65(3) in the form it is, the legislature placed alternative primary conditions on its application. Those conditions require that the accused has either cross-examined the relevant witness in an earlier proceeding about the ‘previous representation’ of which hearsay evidence is sought to be adduced or he had a reasonable opportunity of doing so. The legislature clearly anticipated a situation where hearsay would be rendered admissible by s 65(3) even where there was, in fact, no cross-examination at a previous proceeding of the relevant witness ...

17 Section 65(3) is not the first Victorian statutory provision which permitted prior depositions to be tendered as evidence at trial. Section 55AB of the Evidence Act 1958, which has since been repealed, provided for the use of depositions taken at committal in a subsequent trial where a witness was unavailable. The conditions for use of such a deposition against an accused under that provision were that the accused must have been present when the deposition was taken and he (or his lawyer) must have had a full opportunity of cross-examining the witness. This section, in substance, if not in form, can be traced back, at least, to the Justices Act 1890 in this State and appears to have had its origin in the Indictable Offences Act 1848 (UK) (Jervis’s Act), the first English provision which introduced the statutory exception to the hearsay rule rendering a deposition admissible at trial if a witness was unavailable for certain specific reasons set out in the statute. It could be argued that the substitution of the word ‘reasonable’ in the current Evidence Act for the word ‘full’ in earlier legislation compels a conclusion that the legislature intended the qualifying condition for admissibility to be now less onerous than it was before.

In a judicial review of the dismissal of charges from the Magistrates' Court, the Supreme Court ruled that the magistrate had wrongly refused to admit evidence under >section 65 (as an exception to the hearsay rule) after a complainant had sucessfully objected under section 18 to giving evidence against her de facto partner: DPP v Nicholls [2010] VSC 397.

In the similar case of DPP v Easwaralingam & Anor [2010] VSC 437 the Supreme Court declined to provide a blanket statement of what might comprise reasonable notice under s 67. The prosecution's principal witness was hospitalised shortly before the hearing. On judicial review, the Court ruled the magistrate had gone about the process of declining the adjournment and refusing to admit the witness's statement under s 65.

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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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63. Exception - civil proceedings if maker not available

63. Exception-civil proceedings if maker not available

(1) This section applies in a civil proceeding if a person who made a previous representation is not 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.

Notes

1. Section 67 imposes notice requirements relating to this subsection.

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

The hearsay exception is intentionally broader in civil cases than criminal ones.

Though s 67 provides notice to be given of a party's intention to lead hearsay evidence under this section, s 67(4) is frequently invoked to waive this requirement: Tsang Chi Ming v Uvanna Pty Ltd (1996) 140 ALR 273; Maddock v Maddock [2005] FamCA 868; Kayes v Kayes [1999] FamCA 357; Huang v University of NSW & Anor (No 5) [2010] FMCA 975. In all cases a central consideration is the extent of prejudice caused to the other party.

In Quintano v BW Rose Pty Ltd [2008] NSWSC 1012 it was argued that the prejudice suffered as a result of not being served with notice was that the plaintiff was deprived of the opportunity of making their own efforts to locate the unavailable witness. Cameron FM was not satisfied that the plaintiff would have been any more successful in locating the witness than the defendant had been.

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62. Restriction to "first-hand" hearsay

62. Restriction to "first-hand" hearsay

(1) A reference in this Division (other than in subsection (2)) to a previous representation is a reference to a previous representation that was made by a person who had personal knowledge of an asserted fact.

(2) A person has personal knowledge of the asserted fact if his or her knowledge of the fact was, or might reasonably be supposed to have been, based on something that the person saw, heard or otherwise perceived, other than a previous representation made by another person about the fact.

(3) For the purposes of section 66A, a person has personal knowledge of the asserted fact if it is a fact about the person's health, feelings, sensations, intention, knowledge or state of mind at the time the presentation referred to in that section was made.

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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61. Exceptions to the hearsay rule dependant on competency

61. Exceptions to the hearsay rule dependant on competency

(1) This Part does not enable use of a previous representation to prove the existence of an asserted fact if, when the representation was made, the person who made it was not competent to give evidence about the fact because of section 13(1).

(2) This section does not apply to a contemporaneous representation made by a person about his or her health, feelings, sensations, intention, knowledge or state of mind.

Note

For the admissibility of such contemporaneous representations, see section 66A.

(3) For the purposes of this section, it is presumed, unless the contrary is proved, that when the representation was made the person who made it was competent to give evidence about the asserted fact.

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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44. Previous representations of other persons

44. Previous representations of other persons

(1) Except as provided by this section, a cross-examiner must not question a witness about a previous representation alleged to have been made by a person other than the witness.

(2) A cross-examiner may question a witness about the representation and its contents if-

(a) evidence of the representation has been admitted; or

(b) the court is satisfied that it will be admitted.

(3) If subsection (2) does not apply and the representation is contained in a document, the document may only be used to question a witness as follows-

(a) the document must be produced to the witness;

(b) if the document is a tape recording, or any other kind of document from which sounds are reproduced-the witness must be provided with the means (for example, headphones) to listen to the contents of the document without other persons present at the cross-examination hearing those contents;

(c) the witness must be asked whether, having examined (or heard) the contents of the document, the witness stands by the evidence that he or she has given;

(d) neither the cross-examiner nor the witness is to identify the document or disclose any of its contents.

(4) A document that is so used may be marked for dentification.

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