The Hearsay Rule | Armstrong Legal

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This article was written by Fernanda Dahlstrom - Content Editor - Brisbane

Fernanda Dahlstrom has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Legal Practice. She has also completed a Master’s in Writing and Literature. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory and in family law in Queensland.

The Hearsay Rule


The prohibition on inadmissible hearsay is one of the most well-known rule of evidence. However, the hearsay rule is often misunderstood. The prohibition on hearsay evidence is contained in Section 59 of the Commonwealth Evidence Act, which states that ‘evidence of a previous representation made by a person is not admissible to prove the existence of a fact it can reasonably be supposed that the person intended to assert by the representation.’

A simpler way to explain the prohibition on hearsay is that witnesses are only allowed to give evidence of things which they themselves have seen, heard or otherwise perceived

What is inadmissible hearsay?

Witnesses may give evidence of something they personally, saw, heard or experienced. They are not allowed to give evidence of something they only know because someone else told them.

If person A is giving evidence in a proceeding where person B has been charged with a home invasion, it would be inadmissible hearsay for person A to tell the court “I know that person B invaded the home. Person C told me that she saw it happen.’

This evidence would be inadmissible hearsay because it relies on person C’s statement about what she has perceived to establish a fact that person A has no direct knowledge of.

Why does the hearsay rule exist?

The hearsay rule is based on the following principles:

  • Statements made out of court are not made under oath or affirmation and so cannot be given the same weight as evidence that has been given under oath;
  • An out-of-court statement that is repeated in court cannot be tested during cross-examination. Its accuracy, therefore, cannot be evaluated;
  • When statements made out of court are repeated in court there is the possibility of exaggeration, fabrication, distortion or inaccuracy;
  • Hearsay evidence is not what is known as the best evidence. The ‘best evidence’ rule essentially means that evidence should be given by the person most qualified to give it. If person C witnessed events relevant to the proceeding, under the best evidence rule, person C should be called as a witness.

Exceptions to the hearsay rule

The hearsay rule has a number of exceptions. The most important ones are summarised below.

Statements that are relevant for non-hearsay purposes

It is sometimes necessary for a witness in a criminal proceeding to give evidence of what another person said for a non-hearsay purpose. Hearsay statements are admissible if they are given for a non-hearsay purpose (Section 60).

A non-hearsay purpose is when a person’s statement is being repeated in court not to establish that it is true, but as evidence that the statement was made. For example, if person A is alleged to have made a threat to kill person B, person C may give evidence that they heard person A make the threat. This is because person C heard the threat and can attest to the fact that the threat was made. In this situation, the purpose of the evidence is to establish what was said, not to establish that the statement was true

Out of court admissions

Admissions made by a person out of court are admissible as evidence under the Evidence Act (Section 81).

However, an admission made out of court is not admissible as evidence if it was made involuntarily – ie if it was induced by threats, violence or other oppressive or degrading conduct (Section 84). Therefore if an accused tells police that they committed an offence after the police have properly cautioned them and without being pressured to make an admission, the police officer who heard the admissions can give evidence of what was said. However, if an admission is made to police after threats, this evidence will not be admissible.

Private individuals can also give evidence of admissions another person has voluntarily made to them.

Where the maker of the statement is unavailable

Where the person who made the statement that is being repeated is unavailable to give evidence, their statement may be allowed into evidence under some circumstances (Section 65).

How Do Courts Avoid Hearing Hearsay Evidence?

There are a number of ways court ensure they do not hear hearsay evidence.

Oral Evidence

When oral evidence is being given in the form of examination-in-chief or cross-examination, lawyers generally avoid asking questions that tend to elicit hearsay statements in response. If a witness starts to say something that amounts to inadmissible hearsay, the other party will usually make an objection to the evidence and if the objection is accepted, the judge or magistrate will direct the lawyer to change the course of their questioning.

Documents

The contents of a document can also amount to inadmissible hearsay. It is common for a party to object to the tendering of a document in court if the author of the document has not been made available for cross-examination. This is because the statements contained in a document amount to hearsay unless the author of the document is present in court to adopt the contents of the document (by telling the court that they are its author and agreeing that the statements contained in it are true) and have the evidence tested through cross-examination.

Where a document contains hearsay statements but also contains other material that is admissible, a court may allow the document to be tendered provided the party seeking to tender it blacks out the hearsay passages.

Police witnesses

It is common for people who give evidence in court regularly and are familiar with the hearsay rule to give their evidence in a somewhat artificial way in order to avoid breaking the hearsay rule. It is common to hear a police witness say something along the lines of ‘We spoke to the victim and she told us certain things…’ This is so that the court can get an idea of what the officer’s involvement in a matter has been, without having to hear statements that amount to inadmissible hearsay.

If you have been charged with a criminal offence and need legal advice or representation, please contact Armstrong Legal.

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