Hearsay evidence

Evidence given by a witness of words spoken or written by another person (literally words that the witness has heard said). Hearsay evidence is not usually admissible in ordinary courts of law.

The hearsay rule excludes hearsay evidence from admission under section 59 of the Evidence Act 1995 (NSW):
“Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.”

This can be translated to mean that hearsay evidence is inadmissible to prove the truth of a representation made, but admissible to prove simply that the representation was made.

e.g. The victim of an assault testifying that their assailant said “Stop arguing with me or I’ll hit you” would be admissible as it goes to proving that the victim heard those words spoken. The victim of the same assault testifying that a friend told them “My neighbor is the one that hit you” would be inadmissible, as it intends to assert the truth of those words spoken.

The primary exceptions to the hearsay rule are contained in ss 63-66 of the Civil Liability Act and specify rules for civil and criminal proceedings, where the witness to the hearsay is either available or unavailable. These exceptions apply only to first-hand hearsay (section 62).

The difference between first-hand and second-hand hearsay is as follows:
1. First-hand: X tells Y “I killed him”. Y gives evidence of this in court.
2. Second hand: X tells Y “I killed him”. Y tells Z what X said. Z gives evidence of this in court.

This can logically be extended into even more remote types hearsay, i.e. third-hand, fourth-hand, etc.

The other main exception to the hearsay rule is found at section 60:
“The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of the fact intended to be asserted by the representation.”

This can be translated to mean that if a representation is admitted into evidence for a reason other than to prove its truth (non-hearsay purpose), then it automatically becomes relevant for all purposes, including the hearsay purpose.

Other exceptions include contemporaneous statements about a person’s health, business records, tags, labels, and writing, electronic communications, Aboriginal and TSI traditional laws and customs, reputation as to relationships and age, reputation of general or public rights, and interlocutory proceedings.