The Hearsay Rule (Qld)

The hearsay rule is one of the most fundamental and best-known rules of evidence. At common law, the rule is that evidence of a statement made by another person is not admissible in order to establish the truth of the statement. In Queensland, the rules regarding evidence about statements made by others are set out in Part 6 of the Evidence Act 1977. This page deals with the hearsay rule in criminal matters in Queensland.

What is the hearsay rule?

The hearsay rule holds that evidence of what someone else represented to be true cannot be given in order to establish its truth. As well as statements, representations include conduct and the inferences that it conveys to the listener or watcher. For example, saying nothing when an allegation is made can amount to a representation that the allegation is true in circumstances where the listener would be expected to respond to the allegation with a denial or an explanation.

Written statements are also generally inadmissible hearsay unless they are adopted by the author in oral testimony.

The hearsay rule exists because evidence of what a person has heard another person say is generally not a reliable way of proving the existence of a fact. Parties to criminal matters are not permitted to call hearsay evidence, except where an exception applies.  

Subramaniam v Public Prosecutor

The 1956 Privy Council decision of Subramaniam v Public Prosecutor established the scope of the hearsay rule. In that decision, the court held that hearsay evidence can be admissible in certain circumstances, such as when it is the only available evidence and when the statements were made in circumstances that provide sufficient guarantees of their reliability.

The court also emphasized that judges must carefully assess the reliability of hearsay evidence before admitting it, taking into account factors such as the credibility of the witness who made the original statement, the circumstances in which the statement was made, and any corroboration or inconsistencies in the evidence.

The Privy Council summarised the hearsay rule as follows:

‘Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made. The fact that the statement was made, quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or of some other person in whose presence the statement was made.’

When evidence of a statement is not hearsay

A common example of where evidence of what another person said is not inadmissible hearsay is when a person is charged with making a threat. In that situation, a witness’s testimony that they heard the accused make the threat would be admissible as it would be used to prove that the threat was made and not that the statement the accused made was true.

Queensland Evidence Act

The Evidence Act 1977 contains a number of provisions relating to the admissibility of evidence of previous statements in specific situations. Some of these are outlined below.

Documentary evidence

Under section 93 of the Evidence Act 1977, documentary evidence of a fact is admissible in criminal proceedings in circumstances where oral evidence would be admissible if:

• The document is part of a business record made by person with personal knowledge of the matters it deals with; and
• The person who recorded the information is dead, unfit to attend to give evidence because of a mental or bodily condition, our of the state and unable to attend, cannot be found or identified or cannot be expected to remember the matters dealt with in the document.

Statements made by children

Under section 93A of the Evidence Act 1977, in a proceeding where oral evidence of a fact would be admissible, a statement contained in a document is admissible evidence of that fact if:

• The maker of the statement is a child or a person with a mental impairment who had personal knowledge of the matter; and
• The maker of the statement is available to give evidence.

Previous inconsistent statements

Under section 18 of the Evidence Act 1977, if a witness makes a statement during their testimony that is inconsistent with a previous statement they have made, proof of their earlier statement may be adduced and this does not amount to hearsay.

Where person is unavailable

Under section 93B of the Evidence At 1977, when a person cannot give evidence because they are dead or incapacitated, another person who heard or perceived a representation that the person made based on personal knowledge may give evidence of the representation if:

• It was made at the time of or shortly after the matter
• It was made in circumstances where it is highly likely to be reliable;
• It was against the interests of the person who made it.

It is worth noting that where evidence is admitted under this provision at trial, the jury must be given a warning that hearsay evidence may be unreliable and must be approached with caution if a party requests that this warning be given.

Documents produced by devices

Under section 95 of the Evidence Act 1977, a statement contained in a document or thing produced by a device or process is admissible as evidence of a fact.

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