[[Section 59 The hearsay rule - exclusion of hearsay evidence]] provides two key points: 1. The evidence must be a [[30 - 39 Legislation and Common Law/31 Legislation (Annotated)/Evidence Act 2008/Dictionary/Previous representation|previous representation]] (any representation given outside of the course of giving evidence in court); *and* 2. The evidence given is being used to *prove the existence of the the fact from the previous representation.* It's a particularly difficult and circular concept which can be fleshed out with a basic example: >The informant is called to give evidence. >During his evidence, the informant states on the stand: "The accused said, 'You're a pig.'" This is **not** hearsay evidence if it is adduced from the informant. The previous representation is the phrase "You're a pig." However, we are not attempting to prove the existence of the fact of that previous representation; e.g. that the informant is a pig. We are only proving that the words themselves were said. An example where hearsay evidence is identified correctly: > The informant is called to give evidence. > During his evidence, the informant states on the stand: "The accused said, 'I did it, I killed the guy.'" This **is** hearsay evidence. The previous representation is the phrase "I did it, I killed the guy." We are attempting to prove the existence of the fact that the accused killed the guy. # Basic test 1. Was it a [[30 - 39 Legislation and Common Law/31 Legislation (Annotated)/Evidence Act 2008/Dictionary/Previous representation|Previous representation]]; a representation made outside of the court proceeding? 2. Was the evidence of that previous representation adduced to prove the fact asserted within the previous representation? **Note:** Step 2 is a objective test of the intention behind the words used. As in, it is not about the subjective state of the person who made the previous representation. 4. Was it a [[30 - 39 Legislation and Common Law/36 Legal Concepts/Previous representation]]? 5. Was it made by *a person*? 6. Was it *adduced to prove the existence of a fact asserted*? 7. Can it be *reasonably supposed* person intended to *assert the existence of a fact*. 1. This is an *objective test* of intention. # Example John is the accused in a sexual assault hearing. Peter has made a statement, that Jane told him, "I saw john leave the club with Jo at 1am." This is captured by the hearsay rule: - It is a previous representation, made by a person, which is adduced to prove the existence that John and Jo left at 1am and it can be reasonably supposed that Jo intended to assert the existence of that fact. This could be admissible by way of s. 66 exception, if Jane were to be available to give this evidence and the representation was fresh in Jane's memory when she made that statement. # Exceptions - s. 60 Evidence relevant for non-hearsay purpose - Hearsay *does not apply* if evidence admitted because it is relevant for *another purpose* other than proof of the asserted fact. - The test is 1. Admissibility -> 2. court discretion if evidence used to prove truth of matters. - s. 62 Restriction to "first-hand" hearsay - Evidence from person who has *personal knowledge* of an asserted fact; saw, heard or otherwise perceived. - :0 -> :) (1st hand) -tells-> :) (2nd hand) - s. 65 Exception - maker not available (criminal proceedings) - Maker of the previous representation is *not available* - Person who saw/heard previous representation is called to give evidence. - The evidence can only be given if: - Under a duty to make that kind of representation; or - when/shortly after the asserted fact occurred *and* in circumstances that make it unlikely that the representation is a fabrication; or - A DREC / AFM providing evidence is a good example. - in circumstances that make it highly probable that the representation is reliably; or - was against the interests of the maker at the time of making the representation *and* in circumstances that make it likely the representation is reliable. - (6) example: IVO proceedings where finding made, AFM had given evidence, with opportunity to be cross examined. Transcript or recording would be admissible. - (8) allows accused to adduce first-hand hearsay, but must provide notice re: s. 67. - (9) allows us to respond to accused's hearsay evidence under (8) by adducing first-hand hearsay in response. - Where witness refuses to give evidence at all, although subpoenaed, he is considered an unavailable witness (Suteski [2002] NSWCCA 509). - A former co-accused who gave evidence in an earlier trial, but now refuses to give evidence, is also unavailable, and a transcript of his evidence at an earlier trial may be tendered (Taber and Styman [2007] NSWCCA 116) - If a witness merely cannot recall the matter (e.g. brain injury), they are not unavailable (R v Brown, Barwick and Brown [2006] NSWCCA 69) - ZL v The Queen [2010] VSCA 345, have to take reasonable steps to get the witness at court. This means phone record checks, Centrelink records, enquiries with senders of uncollected mail at the address, surveillance of possible addresses, etc. - s. 66 Exception - where maker is available - Maker available; will or has given evidence; previous representation must concern fact within maker's knowledge. - First-hand hearsay admissible if facts were fresh in the memory; or maker of representation is a victim in the proceedings and was under 18 at the time of making the representation. - *Fresh in the memory* must consider nature of the event concerned, age and health of the person, period of time between occurrence of fact and making of representation. - s. 66A Exception- contemporaneous statements about a person's health, etc. - Hearsay rule doesn't apply to representation about health, feelings, sensations, intention, knowledge or state of mind. -