What You Should Know About Hearsay Evidence in Australia

Introduction

Hearsay evidence is a concept that frequently arises in the context of legal proceedings. It refers to statements made by a person outside of court that are offered as evidence in court to prove the truth of the matter asserted. In Australia, hearsay evidence is generally not admissible, with some exceptions. This blog post will provide an overview of hearsay evidence in Australia, including what it is, why it is not admissible, and the exceptions to this rule.

What is Hearsay Evidence?

Hearsay evidence is a statement made by a person who is not present in court but is offered as evidence to prove the truth of the matter asserted. For example, if a witness testifies that they overheard someone say that the defendant committed the crime, that would be hearsay evidence. The reason that hearsay evidence is generally not admissible is because it is considered unreliable. The person making the statement is not present in court to be cross-examined, so their credibility cannot be assessed.

Why is Hearsay Evidence Not Admissible?

Hearsay evidence is generally not admissible in Australia because it is considered unreliable. There are a number of reasons for this. Firstly, the person who made the statement is not present in court to be cross-examined. This means that their credibility cannot be assessed. Secondly, the person who made the statement may have had a motive to lie or may have been mistaken. Thirdly, the statement may have been misremembered or misinterpreted. Fourthly, the statement may have been made in circumstances where the person making the statement did not have a good view of what happened or did not have a good memory of what happened.

Exceptions to the Hearsay Rule

Although hearsay evidence is generally not admissible in Australia, there are some exceptions to this rule. These exceptions include:

1. Dying Declarations – A dying declaration is a statement made by a person who believes they are about to die. If the statement is made in relation to the cause of the person’s death, it is admissible as an exception to the hearsay rule.
2. Business Records – Business records are admissible as an exception to the hearsay rule if they were made in the course of a business and are kept in the ordinary course of business.
3. Confessions – A confession made by the accused is admissible as an exception to the hearsay rule.
4. Statements Against Interest – A statement made by a person against their own interest is admissible as an exception to the hearsay rule. For example, if a person admits to committing a crime in a statement to someone else, that statement may be admissible as evidence.
5. Statements Made in the Course of Duty – Statements made by a person in the course of their duty are admissible as an exception to the hearsay rule. For example, a police officer’s report of what a witness told them may be admissible as evidence.

Conclusion

Hearsay evidence is generally not admissible in Australia because it is considered unreliable. The person who made the statement is not present in court to be cross-examined, so their credibility cannot be assessed. However, there are some exceptions to the hearsay rule, including dying declarations, business records, confessions, statements against interest, and statements made in the course of duty. If you are involved in a legal proceeding in Australia, it is important to understand the rules around hearsay evidence and how they may impact your case.

While the exceptions to the hearsay rule may seem straightforward, there are still limitations to them. For example, with dying declarations, the statement must relate to the cause of the person’s death. If the statement is about something else, it may not be admissible as an exception to the hearsay rule. Similarly, with business records, the record must have been made in the course of a business and kept in the ordinary course of business. If the record was not made in the course of a business, it may not be admissible.

Confessions are also subject to limitations. A confession made by the accused may be admissible as an exception to the hearsay rule, but only if it was made voluntarily. If the confession was obtained through coercion or deception, it may not be admissible. Additionally, if the confession was made to someone else and that person is offering the confession as evidence, the confession may not be admissible if it was not made voluntarily.

Statements against interest are also subject to limitations. The statement must be against the person’s interest at the time it was made. If the person’s interests have changed since they made the statement, the statement may not be admissible as an exception to the hearsay rule.

It is also important to note that even if an exception to the hearsay rule applies, the statement may still be subject to other evidentiary rules. For example, the statement may be excluded if it is unfairly prejudicial, misleading, or confusing to the jury.

In addition to the exceptions to the hearsay rule, there are also other ways that hearsay evidence may be admissible. For example, if the statement is not being offered for the truth of the matter asserted, it may be admissible. This is known as a non-hearsay purpose. For example, if a witness testifies that they heard someone say “I’m going to kill you,” that statement may be admissible not as evidence that the person intended to kill someone, but as evidence of their state of mind.

Conclusion

Hearsay evidence is a complex area of the law, and it is important to understand the rules around it if you are involved in a legal proceeding in Australia. While hearsay evidence is generally not admissible, there are some exceptions to this rule, including dying declarations, business records, confessions, statements against interest, and statements made in the course of duty. However, even if an exception to the hearsay rule applies, the statement may still be subject to other evidentiary rules, and it is important to be aware of these as well. If you are unsure about the admissibility of a statement in a legal proceeding, it is always best to seek the advice of a qualified lawyer.

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