Hearsay Flashcards
s 59
The hearsay rule—exclusion of hearsay evidence
1.An out-of-court assertion of fact
2.Used to prove that the asserted fact is true
Intended → only for when the representation is an implied representation
s 60
Exception: evidence relevant for a non-hearsay purpose
s 136
General discretion to limit use of evidence
(a) be unfairly prejudicial to a party, or
(b) be misleading or confusing.
R v Welsh
s 60: Psychiatrist relying on what the accused told her
Intended to prove an asserted fact → no, it’s being used as one of the many things that she based her opinion on. It is the fact that he said it, not to prove the truth of what he said. It goes to the credibility of her opinion. Therefore, it is admissible for the non-hearsay purpose, and therefore the hearsay purpose can also be used to prove the hearsay purpose
s 61
Exceptions to the hearsay rule dependent on competency
(1) Hearsay evidence exceptions do not apply if the person who made it was not competent to give evidence about the fact because of section 13 (1) (can’t understand the question or can’t give an answer that can be understood).
(2) This section does not apply to a contemporaneous representation made by a person about his or her health, feelings, sensations, intention, knowledge or state of mind.
(3) presumption of competence
s 62
Restriction to “first-hand” hearsay
s 65
Exception: criminal proceedings if maker not available
s 66
Exception: criminal proceedings if maker available
s 66A
Exception: contemporaneous statements about a person’s health etc
The hearsay rule does not apply to evidence of a previous representation made by a person if the representation was a contemporaneous representation about the person’s health, feelings, sensations, intention, knowledge or state of mind.
s 67
Notice to be given if relying on s 65 (2), (3) and (8)
s 69
Exception: business records
(1) This section applies to a document that—
(a) either—
(i) is or forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a business, or
(ii) at any time was or formed part of such a record, and
(b) contains a previous representation made or recorded in the document in the course of, or for the purposes of, the business.
s 70
Exception: contents of tags, labels and writing
The hearsay rule does not apply to a tag or label attached to, or writing placed on, an object (including a document) if the tag or label or writing may reasonably be supposed to have been so attached or placed—
(a) in the course of a business, and
(b) for the purpose of describing or stating the identity, nature, ownership, destination, origin or weight of the object, or of the contents (if any) of the object.
s 71
Exception: electronic communications
The hearsay rule does not apply to a representation contained in a document recording an electronic communication so far as the representation is a representation as to—
(a) the identity of the person from whom or on whose behalf the communication was sent, or
(b) the date on which or the time at which the communication was sent, or
(c) the destination of the communication or the identity of the person to whom the communication was addressed.
s 72
Exception: Aboriginal and Torres Strait Islander traditional laws and customs
Conway v The Queen
Murdered wife case with mistress
Heroin overdose attempt
Coffee incident
exception in s 65 was relied on by the Crown - statements “unlikely to be a fabrication” in accordance with the second part of s 65(2)(b) because she had no need to bring a change to the status quo, as she had just received custody of her son before the incident [143]. She had nothing to gain from fabricating the information.
Diary incident
not admissible because they were unable to satisfy the requirement under s 65(3) that first hand hearsay is only admissible if the evidence is given by someone who ‘saw, heard or otherwise perceived the representation being made’.
