Hearsay (NSW)
One of the most fundamental rules of evidence if 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.
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.
Rationale for the hearsay rule
The hearsay rule exists because evidence 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.
Exceptions
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).
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.
Where made 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.
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