Hearsay (NSW)

One of the most fundamental rules of evidence is the prohibition against hearsay. In New South Wales, the hearsay rule is set out in section 59 of the Evidence Act 1995. This page deals with hearsay in criminal matters in New South Wales.

What is the hearsay rule?

The hearsay rule prohibits evidence being given of what another person said where the evidence is given for the purpose of establishing the truth of the other person's statement. The hearsay rule applies in both civil and criminal matters; however, there are different exceptions to the rule that apply to criminal and civil proceedings.

Under the Evidence Act 1995 (NSW), hearsay is defined as a previous representation made by a person that is adduced to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation. This definition encompasses both oral and written statements, as well as non-verbal conduct intended as an assertion.

Practical Examples of Hearsay

The easiest way to illustrate the hearsay rule is with examples. If Person A is charged with assaulting Person B and Person C says that Person B told them that Person A assaulted them, Person C will not be allowed to give evidence of this as it would be inadmissible hearsay. This is because Person C would be giving evidence in order to establish the truth of what Person B said. Person C has no direct knowledge of what happened.

In contrast, if Person A is charged with making a threat to kill Person B and Person C heard the threat, then Person C could give evidence of what they heard. In this case, what is at issue is whether or not the threat was made, and Person C has direct knowledge of this. Therefore, their evidence is not inadmissible hearsay.

Types of Hearsay Evidence

Hearsay evidence can take various forms in criminal proceedings, including witness testimony about conversations, written statements or documents created by third parties, police interview records of other suspects, and social media posts or electronic communications. Each type requires careful analysis to determine whether it falls within the hearsay rule and whether any exceptions apply.

Rationale for the hearsay rule

The hearsay rule exists because evidence of what someone said is not generally a reliable indicator of what is true. Parties to criminal matters will not be allowed to call hearsay evidence unless an exception applies.

Reliability Concerns

The primary concern with hearsay evidence is its inherent unreliability. When a witness testifies about what another person said, several layers of potential error are introduced. The original speaker may have been mistaken, lying, or speaking carelessly. The witness may have misheard, misremembered, or misunderstood the statement. Additionally, the absence of the original speaker means the court cannot assess their credibility or allow cross-examination.

Right to Cross-Examination

In criminal law, the right to cross-examine witnesses is fundamental to a fair trial. Hearsay evidence undermines this right because the original maker of the statement is not present in court to be questioned about their knowledge, perception, memory, or honesty. This principle is particularly important in criminal matters where the burden of proof is beyond reasonable doubt.

Exceptions to the Hearsay Rule

The Evidence Act 1995 sets out the following exceptions to the hearsay rule.

Evidence relevant for a non-hearsay purpose

Under section 60, evidence of another person's previous statement may be called if it is relevant for a non-hearsay purpose (as in the above example). This exception applies when the evidence is not being tendered to prove the truth of what was said, but rather to prove that the statement was made or to establish some other relevant fact.

Where maker not available

Under section 65, evidence of another person's statement may be given if the person who made the statement is not available to give evidence and the statement was made:

• under a duty to make representations of that kind; or
• when or shortly after the stated fact occurred and in circumstances that make it unlikely it was a fabrication; or
• was made in circumstances that make it highly likely it is reliable; or
• was against the interests of the person making the statement and was made in circumstances that made it likely to be reliable.

A person is considered "not available" if they are dead, mentally or physically unable to give evidence, cannot be found after reasonable inquiry, or it would be unreasonable to require their attendance.

Where maker is available

Under section 66, when the person who made a statement is available to give evidence, the hearsay rule does not apply to their evidence or to a person who heard them make the statement provided the matter was fresh in their memory when the statement was made.

Other exceptions

There are a number of other exceptions to the hearsay rule set out in Part 32 of the Act. These include where evidence relates to business records, electronic communications, Aboriginal customs, or a person's age, family history, relationship status or family history. These exceptions recognise that certain types of statements are inherently more reliable due to their context or the circumstances in which they were made.

Admissions and Confessions in Criminal Cases

In criminal law, admissions made by an accused person are generally admissible as exceptions to the hearsay rule. Under section 81 of the Evidence Act 1995, admissions are excluded from the hearsay rule because they are statements made by or attributable to a party that are adverse to their interest in the outcome of the proceeding.

Police Interview Records

Electronic recordings of police interviews with accused persons are commonly admitted as evidence in NSW criminal courts. These recordings capture admissions made by the accused and are considered highly reliable due to their contemporaneous nature and the controlled environment in which they are made.

Informal Admissions

Statements made by accused persons to friends, family members, or other third parties may also be admissible as admissions. However, courts will carefully scrutinise such evidence to ensure it meets the reliability standards required under the Evidence Act.

Judicial Discretion and Unfair Prejudice

Even where hearsay evidence falls within an exception, NSW courts retain discretion to exclude it under sections 135-137 of the Evidence Act 1995. These provisions allow judges to exclude evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion, or if it would be misleading or result in an undue waste of time.

Balancing Test

In criminal matters, courts must carefully balance the probative value of hearsay evidence against potential prejudice to the accused. This is particularly important given the serious consequences that may flow from criminal convictions and the fundamental principle that guilt must be proven beyond reasonable doubt.

Frequently Asked Questions

Can police officers testify about what witnesses told them during investigations?

Generally, police officers cannot testify about what witnesses told them if the purpose is to prove the truth of those statements, as this would constitute hearsay. However, they may be able to testify about such statements if they fall within one of the exceptions to the hearsay rule, such as when the witness is unavailable or when the evidence is relevant for a non-hearsay purpose.

Are dying declarations admissible in NSW criminal courts?

Dying declarations may be admissible under section 65 of the Evidence Act 1995 if the person who made the declaration