The Hearsay Rule (NSW)

The hearsay rule is one of the most fundamental rules of evidence. In New South Wales, it is contained in section 59 of the Evidence Act 1995. However, the Evidence Act 1995 also sets out a number of exceptions to the hearsay rule. This page deals with the application of the hearsay rule in criminal matters in New South Wales.

Why do we have the hearsay rule?

The hearsay rule exists because evidence of what a witness has heard someone else say or imply is generally not a reliable way of proving the existence of that fact.

The hearsay rule is about the use to be made of a particular piece of evidence, and specifically, whether that evidence is relied on to establish the truth of the representation.

Parties will not be permitted to call hearsay evidence in a criminal proceeding, except where an exception applies.

Exceptions to the hearsay rule

Under section 60 of the Evidence Act 1995, evidence of another person’s statement may be admitted into evidence if it is relevant for a purpose other than establishing the truth of the statement. A common example of this is where a person is charged with the offence of intimidation, because of something they said to someone else. In this situation, evidence may be given by a person who heard the accused say something as this evidence is relevant for the purpose of establishing that something was actually said. Once admitted for this purpose, it can then be used for a “hearsay” use to prove that the statement was true.

Exceptions relating to first-hand hearsay

Division 2 of Part 3.2 of the The Evidence Act also sets out a number of exceptions to the hearsay rule that apply only in the case of first-hand hearsay. First-hand hearsay is evidence of a representation made by a person who had personal knowledge of the asserted fact. In other words, a person gives first-hand hearsay evidence if they give evidence of something they personally heard, saw or otherwise perceived. In criminal proceedings, these exceptions are split into two categories – depending on whether the maker of the representation is available or not.

It is important to note that whether or not someone is deemed as being available is covered by a specific definition in the Act and is not as simple as whether someone is physically at court or not.

Unavailability includes:

1. if a person is deceased, or
2. if a person is not competent or compellable; or
3. if it would be unlawful for the person to give evidence or the evidence act prohibits it; or
4. if all reasonable steps have been taken to find a person or compel their attendance but those steps have not been successful.

Where maker of representation is not available in criminal proceedings

Under section 65 of the Evidence Act 1995, there is an exception to the hearsay rule where the maker of the representation is not available to give evidence. In that situation, the hearsay rule does not apply if:

• the representation was made under a duty to make representation of that kind or
• the representation was made at the time of or shortly after the asserted event occurred and under the circumstances, it is unlikely to be a fabrication; or
• the representation was made under circumstances that make it highly likely it is reliable; or

Where maker of representation is available in criminal proceedings

Under section 66 of the Evidence Act 1995, when the maker of a representation is available to give evidence, the hearsay rule does not apply to their evidence or to the evidence of a person who saw, heard or perceived the representation being made if the matter was fresh in their memory when the representation was made.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.