If you are a regular of law dramas like ‘Suits’ and ‘Rake’, you have probably heard the words “objection, hearsay!” many times before. It is often shouted by an impassioned barrister as they slam their hand down on the bar table after a witness reveals a case-altering piece of evidence. But what does hearsay actually mean and how does it really play it out in court?
What is hearsay evidence?
Section 59(1) of the Evidence Act 1995 (Cth) defines hearsay as “evidence of a previous representation made by a person used to prove the existence of a fact that it can be reasonably supposed that the person intended to assert by the representation.” In more basic terms, hearsay evidence is:
- evidence that someone other than the witness giving evidence in court,
- made an assertion of fact, AND
- that evidence is used to prove the truth of the fact.
For example, Bill watched Kim hit Terry with their car. Bill then told Jonah about what he saw. Jonah then testifies in Court that Bill told him that Kim hit Terry with their car. This is hearsay evidence and is generally not admissible.
Why restrict hearsay evidence?
Why does the hearsay rule exist? There are a few commonly accepted reasons for the existence of the hearsay evidence rule.
The first is that statements made out of court cannot and should not be given the same weight as those made in court and under oath. Assertions made in court and under oath are subject to oaths and affirmations, and individuals can be subject to serious penalties for making a false or misleading representations while giving testimony in court. In comparison, statements made outside of court are unlikely to be subject to any penalty for dishonesty unless there is some other aggravating factor.
Second, assertions made outside of court cannot be tested in cross-examination. Cross-examination is the tool by which assertions and oral testimony are scrutinised so as to explore potential fabrications, exaggerations or distortions. If individuals were able to use statements made by others about an event to prove that event occurred, the veracity of these statements would be unable to be tested.
Exceptions to the hearsay rule
Despite the strictness of section 59, there are 14 exceptions contained in the Evidence Act which detail circumstances where hearsay evidence may be admissible. We will walk through just three of the exceptions which come up more commonly in the criminal courtrooms.
Relevant for a non-hearsay purpose
Section 60 of the Evidence Act permits hearsay evidence when it is relevant “for a purpose other than proof of an asserted fact.”
Returning to our previous example of Bill telling Jonah about Kim hitting Terry, we know that Jonah’s testimony about Kim hitting Terry is hearsay. However, if Jonah gives the same testimony, it may be admissible if it is relevant for the purpose of only proving that Bill told Jonah something, rather than that Kim actually hit Terry, i.e. it is used for a non-hearsay purpose.
First-hand hearsay
The first-hand hearsay exception is covered in sections 63 to 66 of the Evidence Act. Each section relates to a slightly different context where someone may be permitted to give hearsay evidence if they heard the testimony directly from an eyewitness. In our example, Jonah would be the individual giving first-hand hearsay. If Jonah told his sister about what he’d heard from Bill, she would not be able to give evidence under this exception because she would be giving second-hand hearsay.
Section 65 covers situations in criminal proceedings where the initial eyewitness (i.e. Bill) is unavailable to give the testimony themselves. Under this section, Jonah may be able to give first-hand hearsay evidence if Bill is unavailable and the circumstances in which Bill told him about the incident were such that it is probable that the testimony is reliable.
Section 66 applies in criminal proceedings where the initial witness is available to give testimony. Under this section, Jonah may be able to give evidence if Bill has been or is to be called to give evidence and at the time that Bill told Jonah, the incident was fresh in Bill’s mind.
Admissions
Finally, under section 81, hearsay evidence is admissible when it concerns an admission. For example, if Bill told Jonah that he hit Kim, not Terry, Jonah would be able to give this evidence in Court to help prove that Bill is guilty, without offending the hearsay evidence rule.
You might be beginning to understand why the hearsay rule is so renowned, and why lawyers spend so much time studying and working with it. It is a complex rule that takes time and practice to understand and apply.
As well as being complex, the hearsay evidence rule can have far-reaching implications for how a trial is run and the prospects of success for either side. It is a rule that requires extensive experience to properly apply and utilise during witness examination.
Although it is not quite as exciting as it looks on TV (and much more confusing than they make it seem), the proper application of the hearsay evidence rule and its exceptions have the potential to completely change the types of evidence presented before a jury, judge or Magistrate.
This blog is intended to provide general information about matters than often come before the court and is not legal advice. For legal advice, please reach out to us and speak to one of our lawyers at Hugo Law Group.
Ben Woodward
