HEARSAY AND ITS EXCEPTIONS

What is hearsay? Hearsay evidence is any out-of-court statement which makes expressly or impliedly an assertion with the aim of proving that the assertion is true. This means that there must be communication by way of words. Gestures are enough to constitute hearsay in circumstances of necessity.

Is it allowed in trial?
No, not generally. Hearsay evidence is prohibited but some exceptions exist. The prohibition only covers evidence which is considered to be a ‘statement’ which is used by a party to prove the truth of something described within the statement. It is only for the use of proving that the statement is true and is in narrative form that it cannot be used, it may be relevant and thus admissible for other reasons. Thus where an assertion is made by conduct the hearsay rule does not apply.

The position in Australia was that evidence which was obviously reliable but was prohibited under hearsay rule could be allowed under an exception. However more recently the courts being aware of statutory exceptions which have been implemented have been less inclined to create exceptions themselves.

Application:
 * Whether a witness has made an express or implied assertion is a question for the trier of fact to decide.
 * Assertions of knowledge, belief and intention: Third person statements from someone made just after an event is not considered to be hearsay. Where an intention is shown by an out-of-court statement it is admissible if it has independent sufficient relevance to the facts in issue.
 * Assertions of physical sensation and health: An admission of a physical condition that happened at the same time as the event in question is an exception to the hearsay rule.
 * Where the person who made the out-of-court statement is available as a witness then there will generally be no problem in admitting evidence which would otherwise be classified as hearsay. This is because it can be tested for reliability by questioning the witness. This may arise where the evidence is statement made by an interpreter. This may also arise where there are two or more witnesses who are able to testify about the statement in question.

Example: Witness F: "The parking inspector told me that he had seen a tall man wearing a black jumper near the blue car at lunchtime on Saturday." Here the witness is relating something that he was told by another and so the reliability of this statement cannot be confirmed by the court.

Three common law exceptions

 * 1) Reasons of necessity and reliability allow hearsay where serious illness or death prevents party from testifying at trial.
 * 2) Res gestae (see RES GESTAE)
 * 3) public documents

There are 6 situations where statement of someone who is since deceased is adequately reliable:
 * 1) statements made against pecuniary or proprietary interests
 * 2) statements made and reported in course of duty
 * 3) statements concerning public and general rights
 * 4) statements by deceased relatives as to pedigree
 * 5) statements by persons under a hopeless and settled expectation of death
 * 6) statements by testators about content of wills

Statutory exceptions

 * Authenticated documents are admissible under legislation.
 * Under legislation there is a distinction between civil and criminal proceedings in relation to rules of hearsay.
 * The Western Australian position is set out in the Evidence Act and the key rules are as follows:
 * 1) Documents that are created in the process of investigation of a crime or civil issue and those made for court are exempted from hearsay rules. If they will be prejudicial or misleading the judge can choose not to allow them.
 * 2) First-hand hearsay statements contained in documents are admissible as long as those making the statement are called as a witness
 * 3) Second-hand hearsay is also admissible
 * 4) Reliability is considered in how much weight to give to evidence
 * 5) The judge can decide not to allow certain evidence if they think it would be unfair to allow
 * Business records - statements which reproduces or comes from business records are allowed as evidence
 * A copy of an entry made into a banker’s book is also permitted