Hearsay evidence can play an important role in criminal proceedings, particularly where a witness repeats something another person said about an alleged offence. However, not every statement made outside court can be used as evidence to prove that what was said is true.
In New South Wales, the hearsay rule is primarily governed by the Evidence Act 1995 (NSW). Under section 59, evidence of a previous representation is generally inadmissible when it is used to prove a fact the person who made the representation intended to assert.
There are important exceptions. Depending on the circumstances, a court may admit statements made by an unavailable witness, business records, admissions and statements introduced for a purpose other than proving their truth.
Understanding the hearsay rule can be important when preparing a criminal defence, challenging prosecution evidence or assessing whether a witness’s account can be relied upon in court.
What is hearsay evidence?
Hearsay evidence generally involves a person giving evidence about a statement someone else previously made, where the statement is being used to prove that the asserted fact is true.
For example, imagine a witness tells the court that a friend said they saw the accused commit an assault. If the witness is repeating the friend’s statement to prove that the accused committed the assault, the evidence may be hearsay.
The concern is that the original speaker may not be giving evidence and may therefore not be available for cross-examination about what they saw, remembered or intended to communicate.
Hearsay can involve more than spoken conversations. Depending on the circumstances, it may include written statements, text messages, emails, reports or other communications.
However, an out-of-court statement is not automatically inadmissible just because it was made outside court. Its admissibility depends on the purpose for which it is being introduced and whether an exception or another evidentiary rule applies.
What is the hearsay rule under section 59?
Section 59 of the Evidence Act 1995 (NSW) establishes the general rule against hearsay evidence.
Broadly, evidence of a previous representation is inadmissible if it is being used to prove the existence of a fact that the person who made the representation intended to assert.
The rule is concerned with the purpose for which the evidence is being used. A statement may be inadmissible when relied upon to prove that an event occurred but potentially admissible when used to establish another relevant matter, such as what a listener was told.
What are the exceptions to the hearsay rule?
The Evidence Act 1995 (NSW) contains several exceptions to the general hearsay rule. Each exception has specific requirements, and the fact that a statement falls within a broad category does not automatically make it admissible.
Some important exceptions include:
- First-hand hearsay: Sections 63–66 provide exceptions that depend on whether proceedings are civil or criminal and whether the original maker is available to give evidence.
- Business records: Section 69 may allow certain statements contained in records kept in the course of a business to be admitted.
- Electronic communications: Section 71 addresses representations contained in certain electronic communications.
- Admissions: Section 81 provides an exception for admissions, subject to other restrictions in the Act.
- Non-hearsay purposes: Section 60 may permit evidence admitted for another relevant purpose to be used to prove the fact asserted, subject to the statutory limits.
Other exceptions cover specific types of statements, including certain contemporaneous representations about a person’s health or state of mind.
The applicable exception must be identified and its requirements satisfied before the evidence can be relied upon.
First-hand hearsay when the original speaker is unavailable
Sections 63-65 address first-hand hearsay in civil and criminal proceedings, respectively, where the person who made the representation is unavailable to give evidence.
These provisions may allow a witness to give evidence about something another person said where the statutory requirements are met.
For example, a witness may seek to repeat a statement made by someone who has since died. The statement will not necessarily be admissible simply because the original speaker cannot attend court. The party seeking to rely on it must establish the applicable exception’s relevant requirements.
In criminal proceedings, section 65 sets out specific conditions governing the admission of first-hand hearsay. The circumstances in which the representation was made, and the basis on which the original speaker had knowledge of the asserted fact, may be important.
First-hand hearsay when the original speaker is available
Sections 64 and 66 address first-hand hearsay in civil and criminal proceedings, respectively, where the original speaker is available to give evidence.
These provisions have their own requirements, including circumstances in which leave of the court may be necessary.
The availability of the original speaker does not automatically mean that another person can repeat their statement to prove its truth. The party seeking to introduce the evidence must establish that the relevant statutory exception applies.
Where the original speaker can give evidence directly, the court may need to consider why their previous statement is being relied upon instead and whether the statutory conditions have been satisfied.
Can business records be used as hearsay evidence?
Yes. Section 69 of the Evidence Act 1995 (NSW) provides an exception for certain representations contained in business records.
The exception may apply to records made or kept in the course of a business where the statutory requirements are met. Depending on the circumstances, relevant records may include invoices, transaction records, workplace documents or other records created as part of business activities.
For example, in a criminal investigation involving alleged fraud, business records may be relied upon to establish transactions or other events. Whether a particular document is admissible depends on how it was created, the information it contains and the requirements of section 69.
The exception does not mean every document held by a business is automatically admissible. Section 69 contains conditions and exclusions, including restrictions concerning certain records prepared for legal proceedings.
Even when a business record is admitted, the court must still determine its weight, considering the evidence.
Are admissions and confessions an exception to the hearsay rule?
Admissions have a special position under the Evidence Act 1995 (NSW).
Section 81 provides that the hearsay and opinion rules do not apply to evidence of an admission, subject to other provisions of the Act.
For example, if an accused person allegedly tells another person that they committed an offence, the prosecution may seek to rely on that statement as an admission.
However, the admission exception does not mean every statement attributed to an accused person will automatically be admissible. Sections 82–90 contain additional restrictions and safeguards dealing with matters such as non-first-hand admissions, admissions affecting third parties, reliability and the circumstances in which statements were obtained.
In criminal proceedings, section 85 may be relevant to the reliability of admissions made by an accused person to, or in the presence of, an investigating official. Section 84 addresses admissions influenced by violence, oppressive conduct or certain threats.
The court must consider the applicable provisions and the circumstances in which the statement was made.
If an admission was obtained in circumstances that raise questions about its reliability or admissibility, a lawyer may be able to challenge the prosecution’s reliance on it.
What is the section 60 hearsay exception?
Section 60 of the Evidence Act 1995 (NSW) concerns evidence admitted because it is relevant for a purpose other than proving the truth of the fact asserted.
In certain circumstances, once evidence is admitted for that non-hearsay purpose, section 60 allows it to be used to prove the asserted fact as well.
For example, a statement may be relevant because it explains why a person took a particular action or why they believed they had been warned about a risk. If the statement is admitted for that purpose, section 60 may affect whether it can also be used to establish the truth of what was said.
However, section 60 has limits. It does not apply in a criminal proceeding to evidence of an admission, which is dealt with under the separate admissions provisions.
The court may also consider whether the evidence should be limited to a particular purpose under section 136. The application of these provisions depends on the nature of the statement and the circumstances in which it is admitted.
Can a witness repeat something another person said?
A witness may sometimes give evidence about what another person said, but whether that evidence is admissible depends on why it is being introduced.
Consider two examples.
Example 1: Proving that an allegation is true
A witness tells the court that another person said the accused committed an assault. If the statement is used to prove that the accused committed the assault, the hearsay rule may apply unless an exception applies.
Example 2: Explaining why the witness acted
A witness says another person warned them that a particular individual was dangerous. The statement may be relevant to explain why the witness contacted police or took steps to protect themselves, rather than to prove that the individual was dangerous.
In the second example, the statement may be admissible for a non-hearsay purpose, depending on its relevance and the applicable rules.
The distinction is important because the same statement can be admissible for one purpose but inadmissible for another. A court may also limit how evidence can be used to avoid unfairness or confusion.
Can hearsay evidence be excluded even if an exception applies?
Yes. Satisfying a hearsay exception does not necessarily mean the evidence must be admitted.
Other provisions of the Evidence Act 1995 (NSW) may allow or require the court to exclude evidence in particular circumstances.
Section 135 gives the court a discretion to refuse evidence where its probative value is substantially outweighed by the danger that it might be unfairly prejudicial, misleading or confusing, or cause undue waste of time.
Section 137 requires the court in criminal proceedings to refuse prosecution evidence if its probative value is outweighed by the danger of unfair prejudice to the accused.
Section 138 deals with evidence obtained improperly or in contravention of Australian law and requires the court to apply the statutory test when deciding whether to admit it.
These provisions operate separately from the hearsay rule. Evidence that falls within an exception may still be challenged on another admissibility ground.
It is also important to distinguish admissibility from weight. Even if a statement is admitted, the court must still assess its reliability and persuasiveness in the context of all the evidence.
At Australian Criminal Law Group, we offer a free first consultation. This is an excellent opportunity to meet one of our experienced and proven criminal lawyers face-to-face, share the details about the case, and ask any questions you or they might have. All first consultations are obligation-free and conducted in the strictest confidence. You can read more about our first free consultation here.
Our team of traffic lawyers have 500+ 5-star reviews on Google and 60 years of combined experience, with each lawyer having 5 to 20 years of criminal and traffic law experience.
You can read our reviews  here.