The Hearsay Rule (Vic)
The hearsay rule is a fundamental and well-known rule of evidence. At common law, the hearsay rule is that evidence of another person’s previously statement is not admissible in order to prove the truth of the statement. However, evidence of what someone else said may be admissible as evidence for other purposes. In Victoria the Evidence Act 2008 contains the laws surrounding hearsay evidence and sets out a number of exceptions to the hearsay rule. This page deals with the hearsay rule in criminal matters in Victoria.
What is inadmissible hearsay?
Under section 59 of the Evidence Act 2008, evidence of what another person represented to be true cannot be given to establish the truth of the representation. A representation may be a statement (oral or written) or conduct that conveys an inference, such as saying nothing in response to an allegation.
Under section 60 of the Evidence Act 2008, the hearsay rule does not apply to evidence of a representation that is given for a purpose other than to establish the truth of the representation.
Rationale for the rule
The hearsay rule exists because evidence of what a person remembered hearing another person say is generally not considered a reliable way of proving the existence of a fact. Parties to criminal matters may not call hearsay evidence, except where an exception to the rule applies.
Subramaniam v Public Prosecutor
The 1956 UK Privy Council decision of Subramaniam v Public Prosecutor defined the scope of the hearsay rule. In that case, the court held that hearsay evidence can be admissible under 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 courts must carefully assess the reliability of hearsay evidence before admitting it, taking into account the credibility of the witness who made the statement, the circumstances in which it was made, any corroboration or inconsistencies in the evidence, and other factors.
The Privy Council provided the following summary of the hearsay rule:
‘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 situation where evidence of what another person said or represented does not amount to inadmissible hearsay is where an accused is charged with making a threat. In that situation, a witness may testimony that they heard the threat and this evidence would be admissible as it would be used to prove that the accused made the threat and not that the accused’s statement was true.
Exceptions to the hearsay rule in Victoria
Under the Evidence Act 2008, there are a number of exceptions to the hearsay rule that apply to criminal matters.
Where maker of statement is not available
Section 65 of the Evidence Act 2008 deals with the situation where the person who made the representation is not available to give evidence. In this situation, the hearsay rule does not apply to evidence of a representation the person made if:
- It was made under a duty to make such representations (for example, under mandatory reporting requirements); or
- It was made when or shortly after the asserted fact occurred; or
- It was made in circumstances where it is highly likely to be reliable; or
- It was made against the interests of the maker and in circumstances where it is highly likely to be reliable.
Where make of statement is available
Section 66 of the Evidence Act 2008 deals with the situation where the person who made a representation is available to give evidence. In this situation, the hearsay rule does not apply to evidence about the representation if:
- When the representation was made, the matter was fresh in the person’s memory; or
- The person who made the representation was the victim of an offence and was under 18.
The Evidence Act 2008 also contains a number of other exceptions to the hearsay rule that apply in limited circumstances and are set out in sections 69 to 75.
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