Hearsay Evidence Legal Guide

Summary

Hearsay evidence is generally inadmissible unless it meets specific exceptions under the Evidence Act 2008 (VIC). Sections 59-66A outline conditions for admissibility, focusing on first-hand hearsay and the availability of the person who made the original statement. Section 65 allows hearsay if the original speaker is unavailable, while Section 66 addresses admissibility when the speaker is available. Section 66A covers contemporaneous statements about personal conditions. Section 81 restricts hearsay in admissions unless directly perceived or documented. Legal advice is recommended for case-specific applications.

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what does this section of the evidence act * (vic) mean : * The hearsay rule—exclusion of hearsay evidence (*) 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. (*) Such a fact is in this Part referred to as an asserted fact. (2A) For the purposes of determining under subsection (*) whether it can reasonably be supposed that the person intended to assert a particular fact by the representation, the court may have regard to the circumstances in which the representation was made.
Section * of the Evidence Act * (VIC) means:
- Hearsay evidence (someone's statement used to prove the truth of the matter) is generally not admissible.
- An "asserted fact" is a fact someone intended to claim in their statement.
- The court can consider the circumstances of the statement to determine if a fact was asserted.
what abouse sectio0n * which talks about exceptions
Section * of the Evidence Act * (VIC) states:
- Hearsay evidence can be used if it's r****evant for a reason other than proving the fact it asserts.
- This is an exception to the general rule in Section *.
so what does that mean exactly
Section * means that hearsay evidence, normally not allowed, can be admitted if it's r****evant for a reason other than proving the fact it asserts. For example, to show the speaker's state of mind or motive.
what abouth this part: (*) This section applies whether or not the person who made the representation had personal knowledge of the asserted fact (within the meaning of section *(*)).
The part you're asking about means that Section * can apply even if the person who made the original statement didn't have personal knowledge of the fact they were asserting. This is interpreted according to section *(*).
what does this mean exactly
Section *(*) means that it doesn't matter whether the person who made the hearsay statement was personally aware of the facts they were talking about. The evidence can still be used under Section *'s exception if it's r****evant for reasons other than proving these facts.
what does this part mean: * Exceptions to the hearsay rule dependant on competency (*) This Part does not enable use of a previous representation to prove the existence of an asserted fact if, when the representation was made, the person who made it was not competent to give evidence about the fact because of section *(*). (*) This section does not apply to a contemporaneous representation made by a person about his or her health, fe****ings, sensations, intention, knowledge or state of mind.
Section * of the Evidence Act * (VIC) indicates that:
- A previous statement can't be used to prove a fact if the person who made the statement wasn't competent to testify about the fact.
- This doesn't apply to statements about a person's health, fe****ings, sensations, intentions, knowledge, or mental state made at the same time.
please explain this one for me: * Restriction to "first-hand" hearsay (*) A reference in this Division (other than in subsection (*)) to a previous representation is a reference to a previous representation that was made by a person who had personal knowledge of an asserted fact. (*) A person has personal knowledge of the asserted fact if his or her knowledge of the fact was, or might reasonably be supposed to have been, based on something that the person saw, heard or otherwise perceived, other than a previous representation made by another person about the fact. (*) For the purposes of section 66A, a person has personal knowledge of the asserted fact if it is a fact about the person's health, fe****ings, sensations, intention, knowledge or state of mind at the time the representation referred to in that section was made.
Section * of the Evidence Act * (VIC) means:
- Previous representations must be made by someone with personal knowledge of the fact asserted.
- Personal knowledge must be based on the person's direct perception, not hearsay.
- In section 66A's context, personal knowledge can r****ate to a person's health, fe****ings, sensations, intention, knowledge, or state of mind.
so does that mean if person x told person y something, person y could testify against person x as it is first-hand hearsay?
Yes, as per Section * of the Evidence Act * (VIC), if person Y has direct personal knowledge (heard, saw, perceived directly) of what person X said, this can be considered "first-hand hearsay" and might be admissible in court under certain circumstances.
but if person y told person z about what person x said, person z cant testify right?
Correct, under Section * of the Evidence Act * (VIC), Person Z's testimony would typically be considered "second-hand hearsay" and generally is not admissible, as they didn't directly perceive Person X's statement.
please explain this : * Exception—criminal proceedings if maker not available (*) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact. (*) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation— (a) was made under a duty to make that representation or to make representations of that kind; or (b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlik****y that the representation is a fabrication; or (c) was made in circumstances that make it highly probable that the representation is r****iable; or v
Section * of the Evidence Act * (VIC) indicates:
- It applies when the person who made a previous statement isn't available for testimony.
- The hearsay rule doesn't apply if the evidence comes from someone who perceived the statement directly, under certain conditions (e.g., made under duty, made in r****iable circumstances, or made shortly after the fact occurred).
and this part too (d) was— (i) against the interests of the person who made it at the time it was made; and (ii) made in circumstances that make it lik****y that the representation is r****iable.
This part of Section *(d) of the Evidence Act * (VIC) means:
- The hearsay statement was against the interests of the person who made it at the time.
- The statement was made in circumstances that make it lik****y to be r****iable.
so is this only for first-hand hearsay not second-hand
Yes, Section * of the Evidence Act * (VIC) generally applies to first-hand hearsay, not second-hand. The person providing the evidence must have directly perceived the original statement.
so if person x told person y something. and person x was unavailable. could person y testify against person x. what does that mean if person x is available or not
Under Section * of the Evidence Act * (VIC), if Person X is unavailable, Person Y might be able to testify about what Person X told them, provided certain conditions are met. If Person X is available, they would typically be called to testify directly.
what if person x is the accused
If Person X, the accused, is available, they'd testify directly. If unavailable and Person Y heard directly from X, Y could potentially testify under Section *, subject to conditions. This doesn't imply guilt/innocence of X.
what makes a person unavailable
Under Section * of the Evidence Act * (VIC), a person is considered "unavailable" if they are dead, outside Australia, unfit to testify due to mental or physical conditions, or cannot be found after reasonable steps have been taken to locate them.
i cant find it under section *
I apologize for the confusion. The definition of "unavailability of a person" is actually found under Section * of the Evidence Act * (VIC), not Section *. My previous response contained an error.
no sorry you are correct, it was under *. i was looking at a different section *
No problem at all, it's easy to get sections mixed up. I'm glad we were able to clarify. If you have any more questions about the Evidence Act * (VIC) or any other legal matters, fe**** free to ask.
what does this all mean: (*) The hearsay rule does not apply to evidence of a previous representation made in the course of giving evidence in an Australian or overseas proceeding if, in that proceeding, the accused in the proceeding to which this section is being applied— (a) cross-examined the person who made the representation about it; or (b) had a reasonable opportunity to crossexamine the person who made the representation about it. Note Section * imposes notice requirements r****ating to this subsection. (*) If there is more than one accused in the criminal proceeding, evidence of a previous representation that— (a) is given in an Australian or overseas proceeding; and (b) is admitted into evidence in the criminal proceeding because of subsection (*)— cannot be used against an accused who did not cross-examine, and did not have a reasonable opportunity to cross-examine, the person about the representation. S. *(*) amendedby No. */* s. *(Sch. item *.*). S. *(*) amendedby No. */* s. *(Sch. item *.*). Authorised by the Chief Parliamentary Couns**** Part *.*—Hearsay Evidence Act * No. * of * * (*) For the purposes of subsections (*) and (*), an accused is taken to have had a reasonable opportunity to cross-examine a person if the accused was not present at a time when the crossexamination of a person might have been conducted but— (a) could reasonably have been present at that time; and (b) if present could have cross-examined the person. (*) Evidence of the making of a representation to which subsection (*) applies may be adduced by producing a transcript, or a recording, of the representation that is authenticated by— (a) the person to whom, or the court or other body to which, the representation was made; or (b) if applicable, the registrar or other proper officer of the court or other body to which the representation was made; or (c) the person or body responsible for producing the transcript or recording. (*) Without limiting subsection (*)(d), a representation is taken for the purposes of that subsection to be against the interests of the person who made it if it tends— (a) to damage the person's reputation; or (b) to show that the person has committed an offence for which the person has not been convicted; or (c) to show that the person is liable in an action for damages. S. *(*) amendedby No. */* s. *(Sch. item *.*). Authorised by the Chief Parliamentary Couns**** Part *.*—Hearsay Evidence Act * No. * of * * (*) The hearsay rule does not apply to— (a) evidence of a previous representation adduced by an accused if the evidence is given by a person who saw, heard or otherwise perceived the representation being made; or (b) a document tendered as evidence by an accused so far as it contains a previous representation, or another representation to which it is reasonably necessary to refer in order to understand the representation. Note Section * imposes notice requirements r****ating to this subsection. (*) If evidence of a previous representation about a matter has been adduced by an accused and has been admitted, the hearsay rule does not apply to evidence of another representation about the matter that— (a) is adduced by another party; and (b) is given by a person who saw, heard or otherwise perceived the other representation being made.
The text you provided refers to various exceptions to the hearsay rule under Section * of the Evidence Act * (VIC). Key points include:
- Hearsay doesn't apply if the accused had the opportunity to cross-examine the person who made the representation (*(*)).
- Evidence of a previous representation can't be used against an accused who didn't have the opportunity to cross-examine the person who made it (*(*)).
- An accused is considered to have had a reasonable opportunity to cross-examine a person if they could reasonably have been present (*(*)).
- Evidence of the representation can be adduced by producing a transcript or a recording (*(*)).
- A representation is seen as against the interests of the person who made it if it tends to damage their reputation, show they committed an offence, or show they are liable in a damages action (*(*)).
- The hearsay rule doesn't apply to evidence of a previous representation adduced by an accused or to a document tendered as evidence by an accused (*(*)).
- If evidence of a previous representation has been adduced by an accused and admitted, the hearsay rule doesn't apply to evidence of another representation about the matter (*(*
so according to this. if the accused told person y something. and person y wanted to testify in court against the accused. what would happen?
If the accused (Person X) told something to Person Y, and Person Y wished to testify in court against Person X, it could be possible under Section * of the Evidence Act * (VIC). However, this would be subject to certain conditions such as the availability of Person X and whether the testimony meets the criteria for exceptions to the hearsay rule.
wouldnt it meet the criteria as an excpetion under the hearsay rule if it is first-hand hearsay. also wouldnt the accused be available so theyd cross-examine him? i dont understand what happens to first-hand hearsay if it came from an accused rather than another person
If Person X (the accused) is available, they can be cross-examined directly. If the statement is first-hand hearsay from the accused and meets the criteria under Section * of the Evidence Act * (VIC), it might be admissible. It's essential to consult with a legal professional for case-specific advice.
what criteria
The criteria under Section * of the Evidence Act * (VIC) for admitting first-hand hearsay evidence can include:
- The person who made the representation is unavailable.
- The representation was made under certain circumstances like a duty, or when the fact occurred.
- The representation was against the interests of the person who made it.
- The accused had the opportunity to cross-examine the person who made the representation.
is an accused classifies as unavailable if theyre the ones being charged?
No, being the accused or charged does not make a person "unavailable" in legal terms. Under Section * of the Evidence Act * (VIC), a person is deemed "unavailable" due to factors like death, absence from Australia, or unfitness to testify due to physical or mental conditions.
h****p me understand this section: Exception—criminal proceedings if maker available (*) This section applies in a criminal proceeding if a person who made a previous representation is available to give evidence about an asserted fact. S. *(*) substituted by No. */* s. *. (*) The hearsay rule does not apply to evidence of the representation that is given by the person who made the representation or a person who saw, heard or otherwise perceived the representation being made if— (a) the person who made the representation has been or is to be called to give evidence; and (b) either— (i) when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation; or (ii) the person who made the representation is a victim of an offence to which the proceeding r****ates and was under the age of 18 years when the representation was made. Note Subsection (*) differs from the Commonwealth Act and New South Wales Act. (2A) In determining whether the occurrence of the asserted fact was fresh in the memory of a person, the court may take into account all matters that it considers are r****evant to the question, including— (a) the nature of the event concerned; and (b) the age and health of the person; and (c) the period of time between the occurrence of the asserted fact and the making of the representation. Note Subsection (2A) was inserted as a response to the decision of the High Court of Australia in Graham v The Queen (*) * CLR *. (*) If a representation was made for the purpose of indicating the evidence that the person who made it would be able to give in an Australian or overseas proceeding, subsection (*) does not apply to evidence adduced by the prosecutor of the representation unless the representation concerns the identity of a person, place or thing. (*) A document containing a representation to which subsection (*) applies must not be tendered before the conclusion of the examination in chief of the person who made the representation, unless the court gives leave.
This section of the Evidence Act * (VIC) essentially means:
- It's applicable when a person who made a previous representation is available to testify about an asserted fact (*(*)).
- The hearsay rule doesn't apply if the person who made the statement or someone who perceived it gives evidence, under certain conditions (*(*)).
- The court can consider various factors to determine if the asserted fact was fresh in the person's memory (*(2A)).
- If the statement was made to indicate potential evidence in a proceeding, it doesn't apply unless it concerns the identity of a person, place, or thing (*(*)).
- A document containing a statement must not be tendered before the conclusion of the examination in chief of the person who made it, unless the court gives leave (*(*)).
so if person x (the accused) told person y something and person y wants to testify as a witness against the accused. what would happen
If person X (the accused) told something to person Y, and person Y wants to testify in court, it could be possible under Section * of the Evidence Act * (VIC). This is because person Y directly perceived the representation. However, it would be subject to conditions like whether the fact was fresh in person X's memory when they made the statement. Consult a legal professional for detailed advice.
but since the accused is the one who said it and available, wouldnt they put him on the stand. or does this not matter for first-hand hearsay
Typically, the accused can be called to the stand to testify directly. However, even if the accused is available, the testimony of Person Y might still be r****evant under certain circumstances, such as if it provides additional context or perspective. The applicability of first-hand hearsay can depend on various factors and legal considerations.
so does section * and * apply specifically to second-hand hearsay?
No, Sections * and * of the Evidence Act * (VIC) generally apply to first-hand hearsay. These sections allow for certain exceptions where first-hand hearsay evidence may be admitted in court, under specific conditions. They do not typically apply to second-hand hearsay.
are these sections more tendered towards other people, or the accused. example hearing first-hand hearsay from another person, compared to the accused
These sections apply to both the accused and other people. However, the applicability depends on circumstances such as the availability of the person who made the original statement and the conditions under which the statement was made. The aim is to ensure fair and r****iable evidence is presented in court.
im confused. if its first-hand hearsay, why would we need the person who made the original statement. isnt first-hand hearsay already admissible
While first-hand hearsay can be admissible, it must meet certain conditions under the Evidence Act * (VIC). The person who made the original statement may be required for various reasons, such as to allow for cross-examination or to provide additional context or clarity to their statement. It's always subject to the court's discretion.
so if person x told person y something, and person y told person z. lets say person z wanted to testify against person x. this is secon hadn hearsay, so does this mean section * would not apply?
Correct, Section * of the Evidence Act * (VIC) generally applies to first-hand hearsay. Since Person Z's knowledge is based on what they heard from Person Y, not directly from Person X, this would be considered second-hand hearsay and Section * would typically not apply.
so how would section * work if the original statement came from the accused
Section * of the Evidence Act * (VIC) could apply if the original statement came from the accused (Person X) and was directly heard by another person (Person Y). If Person Y wants to testify, the statement could be admissible if it meets certain conditions, such as the fact being fresh in Person X's memory when they made the statement.
but how does this section work seperat****y to the section that allows for first-hand hearsay
Section * of the Evidence Act * (VIC) provides specific conditions for when first-hand hearsay might be admissible. It works alongside general first-hand hearsay rules, adding criteria like the fact being fresh in the memory when the statement was made. It's not a separate rule, but a refinement of the existing hearsay rules.
explain: EVIDENCE ACT * - SECT 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, fe****ings, sensations, intention, knowledge or state of mind.
Section 66A of the Evidence Act * (VIC) means:
- The hearsay rule doesn't apply to a statement about a person's health, fe****ings, sensations, intention, knowledge, or state of mind if the statement was made at the same time as the conditions being described.
but what if its second-hand hearsay
If it's second-hand hearsay, under most circumstances, it would not be admissible. Section 66A of the Evidence Act * (VIC) generally applies to first-hand hearsay. The person making the statement must have direct personal knowledge of their health, fe****ings, sensations, intention, knowledge, or state of mind.
please explain this section: Exclusion of evidence of admissions that is not first-hand Section * does not prevent the application of the hearsay rule to evidence of an admission unless— (a) it is given by a person who saw, heard or otherwise perceived the admission being made; or (b) it is a document in which the admission is made. Note Section * does not apply in a criminal proceeding to evidence of an admission.
Section * of the Evidence Act * (VIC) means:
- The hearsay rule may still apply to admissions unless they are first-hand.
- Evidence of an admission must be given by a person who directly perceived the admission being made or it must be in a document where the admission was made.
- Section *, which allows for certain exceptions to the hearsay rule, does not apply to evidence of an admission in a criminal proceeding.
what does previous representation mean in law
In legal terms, a "previous representation" refers to a statement or assertion made by a person in the past. This can include spoken or written words, gestures, conduct and even silence, depending on the context. It's often discussed in the context of hearsay rules in evidence law.
can you explain this easier: (*) 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 means that the court generally won't accept a statement someone made in the past as evidence to prove a fact they were trying to express in that statement. It's about the rule against hearsay evidence in court.
does section * refer to the person who made the previous representation, or the person who heard the previous representation (first-hand hearsay)
Section * of the Evidence Act * (VIC) refers to the person who made the previous representation. It discusses their personal knowledge of the asserted fact, based on their own perceptions, not hearsay from others. The person who heard the statement is not the focus of this section.
please explain section * - im really confused on how to apply it. What if the accused is the person who made the previous representation, and a person who heard it first hadn wants to testify against the accused
Section * of the Evidence Act * (VIC) provides exceptions to admit hearsay evidence in criminal proceedings if the person who made the statement is unavailable. If the accused (Person X) made the statement and Person Y heard it directly, Person Y might testify if Person X is unavailable and the statement meets specific criteria, like being made under duty or in r****iable circumstances. Legal advice should be sought for case-specific guidance.
but wouldnt the accused be available since theyre the one being charged? so if theyre available does that mean person y cant testify by thems****ves, they need to get the original person who said it (the accused)
If the accused (Person X) is available, they are typically the one to testify. However, in some circumstances, Person Y might still be able to testify about what Person X said. This could depend on factors such as the nature of the statement and its r****evance to the case. Legal advice should be sought for case-specific guidance.