Admissibility of Hearsay Evidence in Criminal Proceedings under Australian Evidence Act 1995

This article discusses the admissibility of hearsay evidence in criminal proceedings under the Australian Evidence Act 1995. It explains the general rule of hearsay evidence and the exceptions to the rule. The article applies the law to a given scenario and concludes that the hearsay evidence of an unavailable witness is admissible under section 65 of the Evidence Act. The article also cites relevant cases and legislation.

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Facts
Jill gives a written evidence statement to the police admitting that she saw Simon
punching Jack on the face, and then Jack fell on the floor with blood all over his face. Jack is
charged with assault, and Jill dies by the time of trial. The issue is whether the statement by Jill
is admissible in evidence.
Rule
The hearsay rule is one of the most fundamental rules in giving evidence and under the
Australian Evidence Act of 1995. The general rule of hearsay evidence is that a person should
give evidence based on their fist account on matters and not statements made by other persons.
Therefore, oral evidence or written submissions of persons, other than the one testifying as the
witness is inadmissible as evidence as to the truth of what was asserted.
Section 59 1of the Evidence Act asserts that a previous representation made by a person
to prove a fact, which a person intended to assert is not admissible. How the Act has formulated
the hearsay rule is similar to the common law formulation stated in 2Subramaniam v Public
Prosecutor stating that statement made to a witness are admissible to prove that such statements
were made and not to prove the fact. This rule is an exception to the hearsay rule of evidence.
The exception to the hearsay rule is in Section 653 for criminal proceedings, when the
witness is not available. Section 65 states that evidence of a witness who is not available
1 Evidence Act 1995 Australia s 59
2 See Subramaniam v Public Prosecutor [1956] 1 WLR 965
3 Evidence Act 1995 Australia s 65

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tendered by the prosecution is admissible if the witness had the duty to make such a
representation. If the representation was made immediately after the incident and the
circumstances make such statements highly reliable, then the statements will be admissible.
Regina v Williams shows the importance of freshness of mind at the time of making statements.
A person is considered unavailable if they are dead if they have become incompetent in
giving evidence, if they are prohibited to give evidence under the Evidence Act and if the person
has been compelled unsuccessfully to give evidence. Section 62, limits hearsay to only first-hand
hearsay, the similar view was held in Lee v Queen and Regina v Eastman4.
In Welsh v R, evidence in written statements was admitted in court after the witness
refused to testify all the facts which were written in the statements. Two police officers testified
to prove that the witness had written and signed the statement and hence was admitted in court5.
Application
In the scenario above, Jill is an unavailable witness because she dies. Her statements can
normally be considered hearsay because most of the admissions will be based on what she said,
she will not be presenting fats as a witness. Her statements will be read out while refereeing to
her previous statements. This is a case of assault, hence a criminal proceeding, hence section 65
of the Evidence Act applies to this scenario as the exception to admitting her evidence.
4 See Regina v Eastman (SC ACT 10/8/95)
5 See Welsh v R (1996) 90 A Crim R 364

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Conclusion
Jill's absence makes her unavailable witness. Therefore, her evidence is admissible under
section 65 of the Evidence Act as an unavailable witness. Also in R v Rose6, accusatory
statements made by the witness can be admitted by the prosecutions side to prove that the
statements were made and not the truth to such statements. Accordingly like in Lee v R, the
police can admit as to the statements made to make Jill's statements of a witness admissible. Jill's
evidence also was made immediately after the incidence and is crucial to convicting the accused
as qualified by section 65, hence admissible. The prosecution could also consider Jill’s
intoxication in admitting her evidence.
6 See R v Rose [2002] NSWCCA 455

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Bibliography
Cases
Lee v The Queen (1998) 195 CLR 594
R v Rose [2002] NSWCCA 455
Regina v Eastman (SC ACT 10/8/95)
Subramaniam v Public Prosecutor [1956] 1 WLR 965
Welsh v R (1996) 90 A Crim R 364
Legislation
Evidence Act 1995 Australia