What is Hearsay?
Hearsay evidence is an unreliable and inadmissible type of out-of-court statement that one party to court proceedings seeks to adduce against another party in order to prove the truth of what the statement intends to assert. This type of evidence is not allowed to be admitted into evidence in court unless an exception to the hearsay rule applies.
As our criminal lawyers Sydney team regularly see and make hearsay objections in court, we thought it to be a good idea to provide some useful and interesting information to the public on the law on hearsay that applies in Australia. It may also come in handy if you wish to represent yourself in court, or if you are a student with some interest in law or you’re studying law.
Hearsay Meaning | What is Hearsay?
We have heard it be said in movies and TV shows, and is arguably common knowledge, but what does hearsay evidence mean in court? Hearsay is evidence of an out-of-court statement to prove the truth of what that statement intended to assert. Hearsay is a form of unreliable evidence according to law. It is for that reason that the general rule against hearsay applies in court.
The hearsay rule means that any hearsay evidence is not admissible to prove what it asserts to say is true in court under section 59(1) of the Evidence Act 1995 (NSW). This is known as the hearsay rule and applies generally in court proceedings unless an exception to hearsay applies.
In this article, we outline some examples of hearsay in court, how and when to use a hearsay objection in court proceedings, and some of the common exceptions to the hearsay rule.
The main types of hearsay evidence are first-hand hearsay and second-hand hearsay. Second-hand hearsay is considered even more unreliable than first-hand hearsay.
A practical example of first-hand hearsay evidence in court is, if Bob gives evidence in the witness box in court and says, “Peter told me that that he saw Steven commit the crime”.
Another example of first-hand hearsay evidence in court is, if the court is given a written statement made by Bob asserting that Bob saw the accused person committing the crime, yet Bob is not at court to give evidence. Therefore Bob’s statement is not able to be tested to establish its credibility.
An example of second-hand hearsay evidence in court is, if Bob gives evidence in court to the effect that “Peter told me that Steven told him it was green”.
Another example of second-hand hearsay evidence in court is, if the court is given a document asserting Bob’s criminal record to assert that Bob has previously assaulted Steven.
A person accused of a crime can easily be mistakenly convicted if hearsay evidence gets admitted against the accused person without the accused person being given an opportunity test it. This can for obvious reasons, amount to injustice.
Objection Hearsay Meaning
A common situation that arises in court hearings is when the star prosecution witness (alleged victim) fails to attend court on the hearing date, yet the prosecution still try to rely on that witness’s written statement by adducing it as evidence in court. That witness’s statement is a previous representation and is on its face inadmissible evidence on the basis of hearsay objection.
When hearsay evidence is sought to be adduced in court by a party to the proceedings, the other party to the proceedings can object to it on the basis of hearsay, under section 59(1) of the Evidence Act 1995 (NSW). Objecting to it is the formal way to telling the court that the evidence should not be admitted in the case because it is unreliable and unfair to the party it is being admitted against.
Section 59(1) of the Evidence Act 1995 (NSW) says, “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.”
A ‘previous representation’ means an out of court statement. The term ‘representation’ basically means a statement, while previous means something in the past, not present or future.
A main problem with hearsay evidence that makes it unreliable is that when hearsay evidence is given in court proceedings, that evidence is unable to be tested under cross examination which is a significant disadvantage and unfairness to the other party.
Once an objection to a hearsay evidence is made in court, the Judge or Magistrate presiding over the hearing will hear submissions from both sides of the party to determine whether or not it is hearsay, and if it is hearsay evidence, whether or not an exception to the hearsay rule applies that otherwise allows the evidence to be admitted under the Evidence Act.
The Evidence Act provides a range of exceptions to the hearsay rule that otherwise allows this kind of evidence to be admitted if the exceptions to the hearsay rule applies. Let’s explore this below.
Unless an exception to the hearsay rule applies, if an alleged victim fails to attend court on the hearing, the Magistrate may be allowed to issue an arrest warrant for that witnesses attendance in some cases and use reasonable force to arrest the witness if the witness is found. Here is some information on police search powers in NSW.
Exceptions to the Hearsay Rule
Some exceptions to the hearsay rule in criminal proceedings include business records, admissions, electronic communication, and a common exception is first-hand hearsay if the maker of the representation is unavailable to give evidence under section 65 of the Evidence Act 1995 (NSW).
For the purposes of this article, we will focus on that last exception of first-hand hearsay if the maker is unavailable under section 65.
If in criminal proceedings the prosecution seeks to adduce into evidence a witness’s written statement that states that the witness saw the accused person commit the robbery, but that witness is not in court to give such evidence, the prosecution are not allowed to use that statement unless section 65 is satisfied.
Section 65 firstly requires that the prosecution give reasonable notice in writing of an intention to adduce this evidence to the other party and that these are criminal proceedings.
Section 65 secondly requires that the maker of that statement be declared legally “unavailable”. Clause 4 of Part 2 of the Dictionary to the Evidence Act 1995 (NSW) outlines what amounts to a witness being “unavailable”. This amongst other things, includes, if the prosecution has taken all reasonable steps to find the witness or secure their attendance or compel them to give evidence, but without success.
If the witness has been declared as “unavailable”, then section 65 thirdly requires that the statement was made under a duty to make it, or made when/shortly after the asserted fact occurred and in circumstances that make it unlikely to be fabricated, or made in circumstances that make it highly probable that it’s reliable, or the statement was made against the interests of the witness who made it at the time it was made (and made in circumstances that make it likely that it’s reliable).
Interesting facts: Here is some legal information on the law on the offence of goods in custody.