Hearsay Evidence and Its Exceptions under Evidence Law

This article discusses hearsay evidence and its exceptions under evidence law, with a focus on the Uniform Evidence Act in Australia. It covers the definition of hearsay evidence, its admissibility, exceptions to the rule, and problems associated with it. The article also includes case studies and expert opinions on the subject.

Running head: EVIDENCE LAW
Evidence Law
Name of the student:
Name of the university:
Author note

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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.

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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.

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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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the present of him, the statement made by the co-accused will be regarded as acceptable as
the exception of the hearsay rule. Under the legal provision, the statement that has been
collected during the medical treatment should be treated as the exception to the hearsay
evidence. Further, under the Electronic Transmission Act, any recorded statement could be
treated as an exception to the hearsay evidence. However, the question is what type of
recorded statement could be treated as acceptable under the law. According to the rule of
evidence, when a witness has given a statement in the previous occasion regarding the same
case and forget about his statement and in case his submission has been recorded by the
court, the said recording could be used in subsequent event to testify the statement.
The case of R v Smith9 is regarded as revolution in the case of hearsay evidence. In
this case it has been observed by the court that where the testimony of the witness is based on
reliability, the said statement could be regarded as acceptable as hearsay evidence. In this
case, it has been observed that the mother of the victim had received certain phone calls
where the deceased had told about the illegal offer made by the killer and her voice was
tracked at the murder spot. The statement of the mother is accepted as the rule of hearsay
evidence. In R v Starr10, it has been held by the court that if the statement made by the
witnesses is based on certain standard that goes beyond the reasonable doubt, the same
should be come under the purview of exception to the hearsay rule and should be accepted as
evidence. It has been observed in R v Khelawon11 that where certain similarities can be
observed in between the statement given by two witnesses, the same will be regarded as
acceptable. This rule is based on the principle of principled approach. In case of hearsay
evidence, confrontation rule is a well-known principle. According to the rule, the accused can
9 [1992] 2 SCR 915
10 [2000] 2 SCR 144
11 2006 SCC 57

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be present in the court when the witnesses have been collected and the accused can confront
against the witnesses. Crawford v. Washington12 is one of the leading case to this effect.
It has therefore been observed that hearsay evidence has certain loopholes and the
base of the rule is not that much firm like the documentary evidence or circumstantial
evidence. However, there are certain exceptions to this rule and according to the decisions
observed by various courts, it can be stated that the rules of hearsay evidence cannot fully be
rejected. To certain extent, hearsay evidences can be acceptable.
The most problematic thing about the subject matter is that there is no perfect
definition about the hearsay evidence. It has been observed by Professor Rupert Cross that in
case of oral evidence, there are certain exceptions regarding the hearsay evidence. It has been
stated by him that no oral evidence adduced by any third party other that the party in concern
could be accepted by the court. Further, it has been analyzed by Phipson that formal oral
evidence adduced by a party, who has not witnessed the matter could not be accepted by the
court. For an example, it can be stated that the an oral evidence made by a police officer
regarding an offence that he did not experienced himself cannot be accepted. Phipson has
demonstrated that in case of an arrest made for drunken driving could not be accepted by the
court if the police officer stated that the other rider of the car confessed that the driver had
consumed alcohol before getting into the car. The scope of the hearsay evidence is quite wide
in nature. The term does not applicable only on the statement, but it is applicable in case of
the signs, drawings, gestures and photographs as well. A broad interpretation regarding the
hearsay evidence has been observed in the case of Cullen v Clarke13 that” In view of some of
the arguments addressed to the Court. It is necessary to emphasize that there is no general
rule of evidence to the effect that a witness may not testify as to the words spoken by a
person who is not produced as a witness. There is a general rule subject to many exceptions
12 541 U.S. 36 (2004)
13 [1963] I.R. 368

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that evidence of the speaking of such words is inadmissible to prove the truth of the facts,
which they assert; this is the rule known as the rule against hearsay. If the fact that the words
were spoken rather than their truth is what it is sought to prove, a statement is admissible.”
Therefore, it can be understood from the above written note that there are many
exceptions to the rule of hearsay evidence. For an instance, it can be stated that in case of a
labour, who has sustained injury could not be denied in case of an employment and the
evidence of the same will be depended on the grounds where the employer has given negative
signal regarding the employment of the employee. However, there are certain grounds that
reveal the fact that admissibility of the hearsay evidence has caused serious problem to the
witnesses. It has been observed that following are some general problems that might be arisen
in case of hearsay evidence:
The first problem regarding the same is that the contents of the hearsay evidence cause
injustice to the parties. In case where a witness has been pleaded guilty and the same has been
proved by the documents could not be set free if any other party has contended that the
witness had stated them that the documents are false in nature.
Further, the content of the hearsay evidence creates serious impact on the witnesses. It
has been observed that the effectiveness of the hearsay evidence is quite dramatic and all the
reliable evidence has been excluded from the hearsay evidence in certain circumstances. The
statements of the witness under this rule make other witnesses confuse and the same affect
the justice system14.
It has been observed in such cases that the nature of the hearsay evidence is quite
complex in nature. It is a fact that the content of the documentary evidence is stable and the
subject matter of the matters will remain same after many years. However, in case of hearsay
14 Hawkins, Derek. "Exclusion of Hearsay Evidence." Wisconsin Law Journal (2017).

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or oral evidence, this can be varied or altered. It is an obvious fact that the memory of the
witness can be shortened regarding the matter and after certain years, a witness could not
remember his previous statement. In this case, it is very tough to conclude based on those
statements15. Therefore, hearsay evidence could not be accepted in every possible case.
Further, evidences are playing important role in case of giving a judgment. Therefore, it is
required that the base of the evidence should be strong and direct. However, both of these
qualities are not included in the case of hearsay evidence. According to the Evidence Act,
hearsay evidence is weaker in nature. Further, it is secondary in nature and therefore, could
not be accepted at all the circumstances.
It has been observed by the court that the nature of the hearsay evidence is often
based on the gossip statements and it very tough to prove the contents of the hearsay
evidence. There are chances to distort such evidences and therefore, it is very tough to prove
the veracity of the content of the task. Further, it has been observed that the in case of hearsay
evidence, certain processes are taken to prove the originality of the evidence. In many cases,
the evidence are verified by the experts and the court will then precedes with the terms and
contents of the evidence. According to the Evidence Act 1995, if any matter of the case
requires any evidences from the expert, or any party to the case wants to submit any
statement made by an expert, the court may accept the evidence16. The general principle of
law is that the experts know about certain topics more than the presiding officers of the court
does and they can give the evidence precisely and prove the facts of the case scientifically. It
has been stated under the Uniform Civil Procedure Rules 2005 (NSW) that the court should
have to give consent over the expert evidence and the experts are only required to provide
15 Spencer, John R. Hearsay evidence in criminal proceedings. Bloomsbury Publishing, 2014.
16 Jackson, Graham, Colin Aitken, and Paul Roberts. "Case assessment and interpretation of expert
evidence." Guidance for judges, lawyers, forensic scientists and expert witnesses. Practitioner guide 4 (2015).

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evidence that are required reasonably so as to resolve the dispute cropped up. The court is
expected to grant permission for securing the interest of the parties through the expert
evidence and it should ensure fair trial by the expert evidence17. However, the court should
have to understand the fact that unnecessary cost can be avoided to this effect. The hearsay
evidence can be relevant after certain other processes and when all the essentials of the
relevant evidence have been fulfilled can verify the same.
There are certain processes when it can be stated that evidence is relevant in nature.
All the essentials of the relevant evidence must be taken under observation. It will make the
process of collection of evidence secured. The Evidence Act 1995 has identified certain
essentials to this effect. The requirements are as follows:
 The evidence has a tendency to make certain possible facts regarding the specific
case and the case will not be proved without the proper submission of those
evidences;
 The facts that will be come out from the evidence will determine the veracity and
consequence of the case.
According to the law, evidence cannot be treated as the relevant on the basis of its
inherent characteristics. It has been mentioned under the law that the acceptability power of
the evidence is based on the probability of the facts that can be appropriate to prove the case.
according to the court of USA, the relevancy of a case can be proved by identifying the
matter that can be properly provable. In the case of United States v Foster18, it has been
17 Park, Roger C. "Exporting the Hearsay Provisions of the Federal Rules of Evidence." BU Int'l LJ 33 (2015): 327.
18 986 F.2d 541

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observed that the relevancy of evidence can be proved based on the discovery of
proposition19.
There is a common saying that states, “The Hearsay rule and its prohibition is
designed to prevent bad evidence from being put before a Court. There is no situation in
which hearsay is acceptable”. The reasons behind the same are as follows:
 There are certain rules regarding the acceptance or production of evidence before the
court. It has been observed that most of the evidences are given on oath. However, in
case of hearsay evidence, the statements are not taking on oath. Further, in case of
hearsay evidence, most of the adduced evidences are based on the out of court
settlement20.
 In case of trial process, the method of cross-examination is vital in nature. This
process helps to identify the truthfulness of evidence. Further, it has been stated that
the power of perception and limited liabilities of the witnesses are get approved in the
case of cross-witness. Further, to certain extent the problem of ambiguities in case of
evidence can be removed by the cross-examination. However, in case of hearsay
evidence, such facilities are not available and therefore, in many cases, this system of
evidence are not regarded as the evidence in general.
 Certain court-based redundancies are observed in case of hearsay evidence. It has
been observed that the hearsay evidence has given birth to multiplication of evidence
on a single point and various types of evidence often confuse the witnesses. Further,
the investigation report reveals the different issues in certain cases. Therefore, this
19 Canaway, Rachel, et al. "Perceived barriers to effective implementation of public reporting of hospital
performance data in Australia: a qualitative study." BMC health services research 17.1 (2017): 391.
20 Stockdale, Michael, and Andrea O’Cain. "Defendant’s Hearsay Evidence which Exculpates One Co-defendant by
Incriminating Another: R v Sliogeris [2015] EWCA Crim 22." The Journal of Criminal Law 79.2 (2015): 81-85.

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process has faded the contents of judicial reluctances. All these disadvantages made
the admissibility process of hearsay evidence restricted.
 The nature of the judicature is adversary and the judges or the presiding officers are
not actively participated in the court. All their decisions are based on the evidences
presented to him by both the parties and their advocates21. It has been observed that
they are relied on the evidences that can be challenged and that can be verified by way
of cross-examination. However, hearsay evidence has certain loopholes to the effect
and therefore, in many cases, the matter of admissibility does not arise and the courts
are not passing their order based on the hearsay evidence.
Considering the weak points of the hearsay evidence, it has been raised that the process of
hearsay evidence should be abolished. It has been observed that the law makers are of the
view that the contents of the hearsay evidence should be changed, but they do not mention
the process and therefore, dispute has been cropped up to this effect. Further, it has been
observed that difference in the opinions make the alteration process difficult. According to
the supporter of abolition process of hearsay evidence, the court can get relief from non-
presentation of unreliable evidence any more. Further, the traditional approach of oral
evidence can be established in the court again and the process of judicature can be progressed
by the same. Rachel (2017) has opined that “Abolition would lead to reliance on second-hand
documentary evidence which could not be tested”22. According to Adrian Keane (2014), the
court should based their judgment on reliable evidences and not on the evidences that could
be opaque in nature. further, it has been recommended that the court should accept the
evidences that has been experienced particularly by the witness and if it has been p[roved that
he has no particular observation on the same, the court will reject the content of the case.
21 Brodin, Mark S. "The British Experience with Hearsay Reform: A Cautionary Tale." Fordham L. Rev. 84 (2015): 1417.
22 Maloney, Frank, and John M. Schmolesky. "Evidence." Texas Criminal Practice Guide 3 (2016).

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However, it has been observed that the courts and the law commissions are not tried
to abolish the system; rather they are trying to make certain rules for the hearsay evidence.
The law commission that the hearsay evidence has no particular rule and therefore, certain
problems are cropped up due to it has recommended it. Unnecessary interruption of the
witnesses should be avoided in case of hearsay evidence and the evidences should be
reasonably consistent in nature. If all these things can be resolved, the rule of hearsay
evidence can be accepted.
If it has been observed by the court that the witness have stated the fact and the fact
has observed by him, the same can be accepted in nature. according to the law commission,
there are certain other reliable way that can make the process of hearsay evidence much
stronger. It has been stated by the commission that” The opportunity to cross-examine
depends on the person who made the statement being a witness23. If he is, we recommend that
a statement, which satisfies the reliability test, be admissible as evidence; whether it supports
the evidence, he gives in court, contradicts it, or fills in a gap resulting from lapse of memory
or other cause. If he is not to be a witness, a party who wishes to put his statement in
evidence will have to show justification for not calling him. The draft Bill spells out what is
sufficient justification”.
There are certain reasons that make the process of abolishment of hearsay rules
difficult. It has been observed that the required changes regarding the hearsay rules are quite
simple. The process of hearsay evidence can be rejected but if the process has been done
without making any amendment regarding the same, the process of justice can be avoided.
23 Imwinkelried, Edward J. "The Case for the Present Sense Impression Hearsay Exemption: The Relevance of the Original
Version of Federal Rule of Evidence 803 to Judge Posner's Criticismm of the Exeption." U. Louisville L. Rev. 54 (2016):
455.

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Certain law makers are of the view that the wide range of hearsay evidence could give the
judges an opportunity to revive the judgment and in this process, the veracity of the witnesses
can be strong and firm. However, if necessary amendments are required in this field, it can be
done in subsequent event. Therefore, it is my opinion too that the process of admissibility
regarding the hearsay evidence should not be abolished wholly.
It has further been stated that the abolishment of the rule of hearsay can give birth so
many obstacles and therefore, it is required to verify the system of hearsay evidence more
particularly. Certain possible changes in the rule of hearsay evidence can make certain scope
regarding the reliable evidences. Direct observation of any matter can be taken as a reliable
source of evidence. Further, if the statements of any witnesses are repeated in nature, the
content of the statement can be accurate and therefore, this rule regarding the hearsay
evidence is required to be modified. If in a case, the original statement has been made orally,
it is required to be proved that there are some person who have seen that the statement has
been made in the presence of him. If the person who saw the event, he will consider as first
hand hearsay. The same principle will be applied in case where the original statement has
been made in documentary form. Therefore, it can be stated that if sufficient changes can be
made in case of hearsay rule, the same can be held as accepted before that court.

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Gulson, Brian, and Alan Taylor. "A simple lead dust fall method predicts children's blood
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