Hearsay: Unveiling Truth from Fiction in the Legal World

Have you ever played a game of “telephone” where a message gets distorted as it’s passed around? Well, that’s like hearsay in the legal world. Let’s dive in to this Business Kitz blog and learn more!

What is the Evidence Act?

The Evidence Act 1995 is an Australian law that sets out the rules and standards for evidence in legal proceedings. It outlines what evidence can be presented and is admissible in court. The Act aims to ensure fairness and consistency in the treatment of evidence across different types of cases.

What is hearsay in Australia?

In Australia, hearsay refers to any statement made by a person other than the one giving evidence in court, which is offered as evidence to prove the truth of the matter asserted. The hearsay rule, which is applicable in all courts and tribunals, prohibits hearsay evidence from being admitted unless it falls within a specific exception or exclusion.

Section 59 of the Evidence Act 1995 (Cth), defines hearsay evidence as “evidence of a previous representation made otherwise than by a person while giving evidence in the proceeding, that is tendered to prove the existence of a fact that the representation conveys.”

The Uniform Evidence Law (UEL) reforms, which were implemented across Australian states and territories, have introduced several exceptions and exclusions to the hearsay rule. These include the business records exception, the dying declarations exception, and the statements against interest exception. Additionally, the UEL reforms have abolished the distinction between hearsay and original evidence, which means that hearsay evidence may now be admitted as “tendency” or “coincidence” evidence if it has probative value about a fact in issue.

Overall, the hearsay rule plays an important role in maintaining the integrity and reliability of evidence presented in court, and its exceptions and exclusions help ensure that relevant and reliable hearsay evidence is not excluded.

What is hearsay vs non-hearsay?

A hearsay is a statement made by a person other than the witness being called upon to repeat it in court, and it is offered as evidence to prove the truth asserted in a statement. Hearsay evidence is generally inadmissible because the court cannot determine it’s reliability and it is not subject to cross-examination.

Non-hearsay evidence is a testimony based on a witness’s knowledge of the events or facts being discussed. Non hearsay evidence is admissible because of this. A non-hearsay purpose is a use of a statement that is not being offered to prove the truth of the matter asserted in the statement. In other words, the statement is not being used as evidence of what it says, but rather for some other purpose that does not require the truth of the statement to be established. For example, a witness might testify that they overheard a conversation between two people, not to prove what was said in the conversation, but to show that the conversation occurred and that the witness was present to hear it. This use of the statement would be a non-hearsay purpose.

The distinction between hearsay and non-hearsay evidence is important. This is due to whether the evidence is admissible. Evidence must be carefully analysed by the courts, to determine its admissibility to ensure that the jury and judge are provided with only reliable and probative evidence.

Can an affidavit include hearsay?

An affidavit can include hearsay if it falls under an exception to the hearsay rule, such as a statement made by a person who is now unavailable to testify. However, if the affidavit contains hearsay that is not admissible, it may be struck out by the court. Therefore, affiants should be careful not to include hearsay in their affidavits unless it is relevant and admissible under the rules of evidence.

What is an example of hearsay in Australia?

An example of hearsay in Australia would be if a witness in a criminal trial testifies that they heard a third party say that the defendant had admitted to committing the crime. This would be considered hearsay because the witness is relaying an out-of-court statement made by someone else, and the statement is being offered to prove the truth of the matter asserted, namely that the defendant committed the crime.

Under the Evidence Act 1995 (Cth), hearsay evidence is generally not admissible in court. When the statement was made by someone who is unavailable to testify or when the statement was made in circumstances that provide a guarantee of reliability, the court may allow exceptions to the hearsay rule. In such cases, the hearsay evidence may be admissible.

What is first hand hearsay?

The term “first-hand hearsay” is oxymoronic because hearsay, by definition, is an out-of-court statement made by someone other than the witness who is repeating it in court. Therefore, any statement that a witness makes in court about something they heard or were told outside of court is hearsay, whether it was from a firsthand source or not. However, a witness may testify about something they personally observed, which is not hearsay because it is based on their firsthand knowledge.

Legal advice

If you have any questions about legal matters concerning what hearsay is and how it might affect you, please do not hesitate to contact our sister company, Legal Kitz to assist you. To arrange a FREE 30-minute consultation with one of their highly experienced solicitors. Additionally, you can also check out our Business Kitz Subscription to access our full range of legal, commercial and employment document templates to begin your business with a solid foundation that ensures compliance.  

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