What is the hearsay rule in criminal proceedings?
Hearsay is evidence from a witness testifying what he or she has heard another person say about facts occurring outside of court. The witness did not directly witness those facts; that is, they did not hear or see the incident, so they cannot give direct evidence about what happened.
For example, a witness who testifies that ‘Jane told me that Jack hit her’ is giving hearsay evidence. Therefore, this evidence cannot be admitted to prove whether Jack hit Jane unless an exception applies (discussed below).
The hearsay rule is an important evidentiary rule that has application in civil and criminal proceedings. Hearsay evidence is generally not admissible in court as it is considered unreliable and lacks the opportunity for cross-examination. The rule ensures that each party presents the best evidence available to the court to establish contested facts and secure a fair trial.
The hearsay rule at common law
The hearsay rule is an old common law rule recognised as a general prohibition on the admissibility of hearsay evidence. At common law, hearsay is defined as evidence of a statement made out of court that is adduced to prove the truth of a fact asserted in the statement (Subramaniam v. Public Prosecutor).
The two features of hearsay evidence at common law are:
- An out-of-court statement;
- Adduced for a testimonial purpose (i.e. a hearsay purpose).
In Victoria, the common law definition of hearsay was codified by the Evidence Act 2008 (Vic) (the Act), taking effect in 2010. This legislation is ‘uniform’ with other jurisdictions in Australia and, though expressed with complexity, resembles the common law definition to which exceptions apply.
The hearsay rule under the Evidence Act 2008
Section 59 of the Evidence Act 2008 (Vic) begins with the exclusionary hearsay rule and is followed by numerous exceptions to the rule (see ss 60 to 75).
The Act sets out the following five elements to establish whether evidence qualifies as hearsay and is inadmissible:
- A previous representation
- Made by a person
- Containing an asserted fact
- Intended to be asserted by the maker (an objective test)
- Adduced by a party to prove the asserted fact (i.e. adduced for a hearsay purpose).
What is a previous representation?
“Previous representation” is defined by s59 of the Act as a representation made outside the court in which the evidence of the representation is sought to be adduced. A “representation” includes:
- an express or implied representation (oral or in writing); or
- a representation to be inferred from conduct; or
- a representation not intended by its maker to be communicated or seen by another person; or
- a representation that, for any reason, is not communicated.
Evidence of a previous representation is generally adduced in the following forms:
- oral evidence given by a witness who testifies about what another person previously said to them outside of court; or
- documentary evidence tendered as an exhibit, which records a person’s written words and was made on a previous occasion outside of court.
What is an asserted fact?
For a previous representation to qualify as hearsay evidence, it is necessary to identify the asserted fact, which may be expressly asserted or asserted by implication. In the previous example of hearsay evidence that ‘Jane told me that Jack hit her’, the expressly asserted fact is that Jack (the accused) hit the victim.
Why does the hearsay rule exist?
Hearsay evidence is considered ‘evidence of a kind that may be unreliable’, and the rule ensures that hearsay is treated cautiously. The Australian Law Reform Commission has justified the exclusionary rule for hearsay evidence, highlighting common risks of hearsay evidence, including:
- Faults in the perception or recollection of the person who made the hearsay statement and the person who reported the terms of the hearsay statement.
- A memory of what is heard is less reliable than a memory of what is directly witnessed.
- That the statement was not made in a court environment under oath.
- Inability to cross-examine the maker of the statement and the inability to assess the statement’s context (R v Nemeth).
Contrasting hearsay with direct evidence
Hearsay evidence, or evidence of a previous representation, may be contrasted with direct evidence. A witness who gives direct evidence recounts facts of which he or she directly perceived. Direct evidence is typically considered more reliable and is given greater weight in court. For example:
- Direct evidence: A witness testifies that ‘I saw him punch Jane’.
- Hearsay evidence: A witness testifies that ‘Jane told me that he hit her’, unless subject to an exception, is inadmissible.
Exceptions to the hearsay rule
If evidence qualifies as hearsay (under section 59), it may be subject to an exception to the hearsay rule. If an exception to the hearsay rule applies, evidence of a previous representation may be admitted for a hearsay purpose.
First-hand hearsay exceptions
Evidence identified as ‘first-hand hearsay’ may be admissible as an exception to the hearsay rule. In determining whether an exception applies to first-hand hearsay, consideration is given to the context in which the evidence is proposed to be adduced.
First-hand hearsay is defined in section 62(1) as evidence of a previous representation that was made by a person who had personal knowledge of an asserted fact. In this context, personal knowledge is evident if it is based on something a person actually perceived or might reasonably be supposed to have perceived.
Sections 62-68 of the Act set out specified circumstances in which first-hand hearsay is admissible in a criminal proceeding. These provisions may be considered as an initial defence by parties intending to counter any objections raised by opposing counsel regarding the admissibility of hearsay evidence. However, care must be taken to ensure that the hearsay proposed to be adduced as an exception is not second-hand, third-hand or more remote hearsay.
The following is first-hand hearsay and is potentially admissible:
- Person A witnesses an event that they have personal knowledge (ie saw, smelt, tasted, heard or otherwise perceived.
- Person A tells person B about the event.
- Person B gives oral evidence in court of the ‘previous representation’ made by person A containing asserted facts. For example, ‘Jane told me that [the accused] hit her’.
If the maker of the previous representation not available
First-hand hearsay evidence may be admissible, upon giving reasonable notice, if the maker of the previous representation is unavailable to give evidence about the previous presentation under section 65 of the Act.
This exception applies in specific situations and aims to balance the difficulties faced when there is limited evidence against the risk of admitting unreliable or fabricated evidence.
A party seeking to adduce evidence under this provision must give reasonable notice of the intention to adduce the evidence.
If the maker of the previous representation available
Under section 66 of the Act, first-hand hearsay evidence is admissible if the maker of a previous representation is available to give evidence about a previous representation. For example, if:
- Person A witnesses an event that they have personal knowledge
- Person A tells person B about the event
- Person A gives oral evidence in court of the ‘previous representation’ they made to person B
If statement made about a person’s health
Under section 66A of the Act, the hearsay rule does not apply to evidence of a previous representation made by a person if it was a contemporaneous representation about the person’s health, feelings, sensations, intention, knowledge or state of mind.
Second-hand and remote hearsay
Second-hand and more remote hearsay is not an exception to the hearsay rule and is inadmissible.
Continuing from the above examples, the following is second-hand hearsay:
- Person B reports the event told to them by Person A to Person C
- Person C gives oral evidence of the ‘previous representation’ by person B containing asserted facts that are not within their ‘personal knowledge’. For example, ‘she said that Jane told her [the accused] hit her.’
As person B did not hear or perceive the event directly, person C’s evidence is two steps removed from Person A. This evidence is second-hand hearsay and is not an exception to the hearsay rule.
Options if opposed to the admissibility of first-hand hearsay
If a first-hand hearsay exception allows for the admissibility of evidence, counsel opposed to the admissibility of the evidence can pursue further options to address the inherent reliability issues of hearsay evidence. For example, the following may be available:
- apply to have prejudicial evidence excluded under sections 135 and 137 of the Act;
- apply to limit the use of prejudicial evidence under section 136 of the Act; or
- requesting reliability warnings pursuant to the Jury Directions Act 2015.
Other exceptions to the hearsay rule
Evidence relevant for a non-hearsay purpose (not admissions)
Under section 60 of the Act, hearsay evidence may be admissible if it is admitted for a non-hearsay purpose, and this applies regardless of whether it is first-hand hearsay (s 60(2)). Following Lee v The Queen, the exception under section 60 does not apply to evidence of an admission in a criminal proceeding. However, evidence of an admission may still be admissible, as an exception to the hearsay rule, if it is ‘first-hand’ hearsay (s 81). For example, evidence may be relevant for a non-hearsay purpose in the following scenarios:
- State of Mind: Evidence of a previous representation made by a person that reveals their state of mind can be relevant for a non-hearsay purpose. For example, if the issue is the person’s intention, fear, or belief, the previous representation expressing their mental state at a particular time may be admissible.
- ‘Prior inconsistent statement’: If a witness makes a statement inconsistent with a statement made before giving evidence in court, the previous statement may be admissible to prove the truth of facts contained in the prior statement.
It is important to note that when hearsay evidence is admitted for a non-hearsay purpose, it may still be subject to scrutiny regarding its reliability, credibility, and probative value.
Evidence of admissions
Under section 81 of the Act, the hearsay rule does not apply to evidence of a previous representation if it relates to an admission. For example, if D (the defendant) admits to his best friend W (the witness) that he sexually assaulted V (the victim). In D’s trial for the sexual assault, the prosecution may lead evidence from W that —
- D made the admission to W as proof of the truth of that admission; and
- W formed the opinion that D was sane when he made the admission.
This hearsay rule exception is, however, subject to the following exclusions, which may render an admission inadmissible:
- evidence of admissions that is not ‘first-hand’ (s 82)
- use of admissions against third parties (s 83)
- admissions influenced by violence and certain other conduct (s 84)
- unreliable admissions of an accused (s 85)
- records of oral questioning of an accused (s 86)
Section 82, therefore, limits the hearsay rule exception to first-hand hearsay of the admission or document in which an admission was made. In applying this exception, it is important to distinguish between a document that records an admission by another person and a document in which an admission was made directly. A record by a third party to an admission, such as police notes recording a suspect’s admission is, therefore, second-hand inadmissible hearsay.
Under sections 84 & 85, an admission is only admissible if the court is satisfied that the truth of the admission is not rendered unreliable by circumstances in which an admission was made.
Notably, the exception in section 60, that hearsay evidence is admissible if relevant for a non-hearsay purpose, does not apply to evidence of an admission in criminal proceedings.
Exceptions for remote hearsay
Other exceptions in sections 69 to 75 of the Act are available for second-hand or more remote hearsay. Given the reliability issues concerning this evidence, these exceptions are restricted in scope, are based on necessity and identify categories of evidence that are likely to be reliable.
The following categories of evidence may be admissible as exceptions to the hearsay rule:
- business records (section 69)
- contents of tags, labels and writing (section 70)
- electronic communications (section 71)
- Aboriginal and Torres Strait Islander traditional laws and customs (section 72)
- reputation as to relationships and age (section 73)
- reputation of public or general rights (section 74)
- interlocutory proceedings (section 75)
Hearsay in summary
Hearsay is defined by section 59 of the Evidence Act 2008 (Vic) as evidence from a witness testifying what he or she has heard another person say about facts, and the witness did not directly perceive those facts.
If evidence qualifies as hearsay under section 59, the hearsay rule excludes evidence being admitted to prove the asserted fact contained in the evidence. However, many exceptions apply to the hearsay rule, which permit evidence of a previous representation being admitted for a hearsay purpose.
Due to the inherent unreliability of hearsay evidence, when admitted subject to an exception, it may be subject to further scrutiny regarding its reliability, credibility, and probative value.