17.08.2010

Introduction

8.1 The general hearsay rule established by s 59 of the uniform Evidence Acts is discussed in the previous chapter, along with a discussion of the exception in s 60 for hearsay that is admitted for a non-hearsay purpose and is relevant for a hearsay purpose.

8.2 This chapter discusses the remaining hearsay exceptions found in the uniform Evidence Acts. It was seen in Chapter 7 that s 60 is drafted to apply where there is ‘evidence of a previous representation’, irrespective of whether the evidence is first-hand or more remote hearsay. By contrast, whether the evidence of the previous representation is first-hand or more remote hearsay is crucial in deciding whether any of the hearsay exceptions discussed in this chapter apply.

8.3 Division 2 of Part 3.2 of the uniform Evidence Acts is restricted by s 62 to first-hand hearsay. Exceptions apply in civil[1] and in criminal proceedings.[2] The Division also contains a provision requiring notice to be given of intention to adduce first-hand hearsay evidence in certain civil and criminal proceedings[3] and a provision governing objections to the tender of hearsay evidence in civil proceedings where the maker of the out of court representation is available to testify but the required notice indicates an intention not to call the maker as a witness.[4]

8.4 Division 3 of Part 3.2 is headed ‘Other exceptions to the hearsay rule’. Exceptions are made for business records,[5] the contents of tags, labels and writing,[6] telecommunications,[7] contemporaneous statements about a person’s health etc,[8] reputation as to relationships and age,[9] reputation of public or general rights,[10] and interlocutory proceedings.[11]

8.5 This chapter makes a limited number of proposals for reform of the first-hand and second-hand hearsay provisions. Particular issues which will be discussed include the exceptions applying:

  • in civil proceedings if the maker of the representation is available;

  • in civil and criminal proceedings if the maker of the representation is not available;

  • in criminal proceedings to a representation made when relevant events were ‘fresh in the memory’ of the maker of the representation;

  • to business records; and

  • to contemporaneous statements.

[1]Uniform Evidence Acts ss 63–64.

[2]Ibid ss 65–66.

[3]Ibid s 67.

[4]Ibid s 68.

[5]Ibid s 69.

[6]Ibid s 70.

[7]Ibid s 71.

[8]Ibid s 72.

[9]Ibid s 73.

[10]Ibid s 74.

[11]Ibid s 75.