Hearsay Evidence and Its Exceptions under Evidence Law
Added on 2023-06-15
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Running head: EVIDENCE LAW
Evidence Law
Name of the student:
Name of the university:
Author note
Evidence Law
Name of the student:
Name of the university:
Author note
1EVIDENCE LAW
Answer to topic 1
Hearsay evidence and its exception:
When a crime has been committed, it poses threat to the society. Under the
Evidence law, there are certain grounds that are acceptable as evidence during the trial
section1. By the interpretation of the term, evidence means anything that supports either the
parties to a case. When a criminal case has been filed before a competent authority, certain
processes have been taken to clarify the facts of the case and the main intention of the same is
to identify the criminal. There are certain types of evidence that are produced before the court
to come into a conclusion. Documentary evidence, circumstantial evidence, real evidence and
hearsay evidence are some of the instances to the rule. In many countries, it has been ruled
out that hearsay evidence is no evidence2. In Australia, Uniform Evidence Act governs the
criminal acts. The hearsay rule has been engraved under section 59 and section 60 of the Act.
According to section 59 of the Act, any person will not be allowed to make any
representation regarding the existence of a fact. In simple words, it can be stated that a person
is allowed to assert a fact only when he himself experience the crime or the incident. If a
person went to the court with the statement that he gains the information from others, it will
not be accepted in the court. Hearsay evidence can be of three types such as oral, written and
conduct-based. Such an evidence is generally not accepted in the court proceeding. In case of
hearsay evidence, there is a term named previous representation3. It means certain
representation which has been made outside the definition of due course of evidence that are
1 Keane, Adrian, and Paul McKeown. The modern law of evidence. Oxford University Press, USA, 2014.
2 Keyes, Mary. "Australia: Foreign Law in Australian International Litigation: Developing the Common
Law." Treatment of Foreign Law-Dynamics towards Convergence?. Springer, Cham, 2017. 503-528.
3 Gulson, Brian, and Alan Taylor. "A simple lead dust fall method predicts children's blood lead level: New
evidence from Australia." Environmental research 159 (2017): 76-81.
Answer to topic 1
Hearsay evidence and its exception:
When a crime has been committed, it poses threat to the society. Under the
Evidence law, there are certain grounds that are acceptable as evidence during the trial
section1. By the interpretation of the term, evidence means anything that supports either the
parties to a case. When a criminal case has been filed before a competent authority, certain
processes have been taken to clarify the facts of the case and the main intention of the same is
to identify the criminal. There are certain types of evidence that are produced before the court
to come into a conclusion. Documentary evidence, circumstantial evidence, real evidence and
hearsay evidence are some of the instances to the rule. In many countries, it has been ruled
out that hearsay evidence is no evidence2. In Australia, Uniform Evidence Act governs the
criminal acts. The hearsay rule has been engraved under section 59 and section 60 of the Act.
According to section 59 of the Act, any person will not be allowed to make any
representation regarding the existence of a fact. In simple words, it can be stated that a person
is allowed to assert a fact only when he himself experience the crime or the incident. If a
person went to the court with the statement that he gains the information from others, it will
not be accepted in the court. Hearsay evidence can be of three types such as oral, written and
conduct-based. Such an evidence is generally not accepted in the court proceeding. In case of
hearsay evidence, there is a term named previous representation3. It means certain
representation which has been made outside the definition of due course of evidence that are
1 Keane, Adrian, and Paul McKeown. The modern law of evidence. Oxford University Press, USA, 2014.
2 Keyes, Mary. "Australia: Foreign Law in Australian International Litigation: Developing the Common
Law." Treatment of Foreign Law-Dynamics towards Convergence?. Springer, Cham, 2017. 503-528.
3 Gulson, Brian, and Alan Taylor. "A simple lead dust fall method predicts children's blood lead level: New
evidence from Australia." Environmental research 159 (2017): 76-81.
2EVIDENCE LAW
sought to be adduced. Representation can be of oral or written in version4. Hearsay evidence
is not come under the category of best evidence and therefore, such evidence is not treated as
evidence in a court. However, there are certain exceptions to the rules that can be taken as
evidence in the court. In the Australian Act, certain effects of the hearsay evidence have been
prescribed under section 605. It has been observed under the section that in case a
representation has been rejected for ground of non-hearsay purpose that can be accepted as
hearsay evidence in subsequent event. However, under this Act, certain discretionary
provisions are there mentioned under section 136 of the Act.
The admissibility of the hearsay evidence has been well described under the case
study of Lee v The Queen6. In this case, certain robbery has been taken place and it has been
observed that one of the defence witnesses conveyed that he had heard that the convict told
him that he had fired two shots and the prosecution case was based on him by treating him as
a prime witness of the case. However, it has been observed that the witness, on later stage
forgot about all the statement. It has been observed in this case that the main intention of the
hearsay evidence is to find out the intention of the party that he wants to assert through the
case. The Australian Law Commission has concluded that certain problems are cropped up in
case of hearsay evidence. In many cases, it has been observed that inconsistencies can be
observed in between the previous and present statement of the witnesses. It has further been
stated by the Law Commission that inconsistencies can be made between the statement of the
witnesses and the evidential report of the expert7. In addition to this, according to section 60
4 Gulson, Brian, and Alan Taylor. "A simple lead dust fall method predicts children's blood lead level: New
evidence from Australia." Environmental research 159 (2017): 76-81.
5 Spencer, John R. Hearsay evidence in criminal proceedings. Bloomsbury Publishing, 2014.
6 (1998) 195 CLR 594
7 Ng, Jenny. "International cybercrime, transnational evidence gathering and the challenges in Australia: finding
the delicate balance." International Journal of Information and Communication Technology 9.2 (2016): 177-
198.
sought to be adduced. Representation can be of oral or written in version4. Hearsay evidence
is not come under the category of best evidence and therefore, such evidence is not treated as
evidence in a court. However, there are certain exceptions to the rules that can be taken as
evidence in the court. In the Australian Act, certain effects of the hearsay evidence have been
prescribed under section 605. It has been observed under the section that in case a
representation has been rejected for ground of non-hearsay purpose that can be accepted as
hearsay evidence in subsequent event. However, under this Act, certain discretionary
provisions are there mentioned under section 136 of the Act.
The admissibility of the hearsay evidence has been well described under the case
study of Lee v The Queen6. In this case, certain robbery has been taken place and it has been
observed that one of the defence witnesses conveyed that he had heard that the convict told
him that he had fired two shots and the prosecution case was based on him by treating him as
a prime witness of the case. However, it has been observed that the witness, on later stage
forgot about all the statement. It has been observed in this case that the main intention of the
hearsay evidence is to find out the intention of the party that he wants to assert through the
case. The Australian Law Commission has concluded that certain problems are cropped up in
case of hearsay evidence. In many cases, it has been observed that inconsistencies can be
observed in between the previous and present statement of the witnesses. It has further been
stated by the Law Commission that inconsistencies can be made between the statement of the
witnesses and the evidential report of the expert7. In addition to this, according to section 60
4 Gulson, Brian, and Alan Taylor. "A simple lead dust fall method predicts children's blood lead level: New
evidence from Australia." Environmental research 159 (2017): 76-81.
5 Spencer, John R. Hearsay evidence in criminal proceedings. Bloomsbury Publishing, 2014.
6 (1998) 195 CLR 594
7 Ng, Jenny. "International cybercrime, transnational evidence gathering and the challenges in Australia: finding
the delicate balance." International Journal of Information and Communication Technology 9.2 (2016): 177-
198.
3EVIDENCE LAW
of the Uniform Evidence Act, “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”. It has further been mentioned under section 59
of the Act that any evidence regarding the previous representation could not be treated as
admissible if the witness is intending to assert the same by representation. Representation is a
process by which the experience of a person regarding an offence has been induced before
the court. Further founding has been made in the case where it has been mentioned that
difficulties can be raised regarding the prior statement and it is troublesome to determine the
evidence in later stage. However, learned court has observed that any unintended implied
assertion can be treated as evidence and it can be come under the light of the exception of
hearsay rules8.
It has been observed from section 60 of the Act that certain effects are created
regarding the expert opinion and it has been observed that the factual matters upon which the
experts are depending are inadmissible in nature and that cannot be used for assertion of
facts. The matter of Lee is historical in the evidential case of Australia. The case has certain
serious implications on the conduct litigation.
The most important and common problem of hearsay evidence is that
inconsistencies can be found in between the previous statement and the present statement. On
this basis, in most of the countries, hearsay evidence is treated as no evidence. However,
there are certain exceptions to the rule. According to the Evidence Law, if any statement has
been made immediately after the declaring party has been perceived the same. It is quite
difficult to consider the admissible grounds of the hearsay rule; however, in Brand v HMA
[2011], the court has stated that if a co-accused state certain things about the other accused in
8 Spencer, J. R. "Ohio v. Clark in comparative perspective." Psychology, Public Policy, and Law 21.4 (2015):
389.
of the Uniform Evidence Act, “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”. It has further been mentioned under section 59
of the Act that any evidence regarding the previous representation could not be treated as
admissible if the witness is intending to assert the same by representation. Representation is a
process by which the experience of a person regarding an offence has been induced before
the court. Further founding has been made in the case where it has been mentioned that
difficulties can be raised regarding the prior statement and it is troublesome to determine the
evidence in later stage. However, learned court has observed that any unintended implied
assertion can be treated as evidence and it can be come under the light of the exception of
hearsay rules8.
It has been observed from section 60 of the Act that certain effects are created
regarding the expert opinion and it has been observed that the factual matters upon which the
experts are depending are inadmissible in nature and that cannot be used for assertion of
facts. The matter of Lee is historical in the evidential case of Australia. The case has certain
serious implications on the conduct litigation.
The most important and common problem of hearsay evidence is that
inconsistencies can be found in between the previous statement and the present statement. On
this basis, in most of the countries, hearsay evidence is treated as no evidence. However,
there are certain exceptions to the rule. According to the Evidence Law, if any statement has
been made immediately after the declaring party has been perceived the same. It is quite
difficult to consider the admissible grounds of the hearsay rule; however, in Brand v HMA
[2011], the court has stated that if a co-accused state certain things about the other accused in
8 Spencer, J. R. "Ohio v. Clark in comparative perspective." Psychology, Public Policy, and Law 21.4 (2015):
389.
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