Week 8 Class 9 – Analysing the rule against hearsay; hearsay exceptions

Lecture notes

Judicial college of Victoria chart – hearsay in criminal proceedings  good chart to look at

judicialcollege.vic.edu.au/resources/uniform-evidence-resources

- Flow charts for exclusionary rules

The materials on Moodle is about the scope of the rule of hearsay – the role and the purpose of the
evidence

- Hearsay is a purposive rule – catching not necessarily the evidence/prior representation

itself, but concerned with controlling the use of that evidence.

Phrases that we need to focus on

- What is a previous representation?

- Reasonably be supposed that the person intended to assert  rule only catches intended
representations
o Unintended assertions that we might be able to infer from conduct/words are not
caught by the rule d admissible to ground the evidence that we say that the words
go to.

First-hand hearsay – s 62 (Part 3.2 Division 2)

- That the person speaking about the event has first hand knowledge of the event  we are
not too remote from the event itself.
- Divided according to whether the maker is available
o If not, then s 65, they are then s 66 (in crim proceedings)
o If contemporaneous assertion about state of mind, health, intention  s 66A (crim).
 Only used where the assertion is relevant

Other exceptions

- Relevant for non-hearsay purposes s 60

o That evidence already been admitted for another purpose (eg credibility)  s 60
permits it to be used for two purposes.  this discussed in Thursday’s class.
 Tends to involve cases with medical opinion.
- Remote hearsay exceptions
o Eg business records, electronic communications
o Some broad and some narrow  tend to come up in civil proceedings.
- Admissions – governed under another section (s 81)
- Judgments and convictions
- Character evidence – character evidence lifts the application of the hearsay rule.
Then need to consider discretionary and mandatory exclusions at the very end.

When considering a prior inconsistent statement, you need to think about whether hearsay comes
into it.

- In s 101A – second limb of credibility evidence where evidence needs to be admissible for
another purpose

s 60

- If evidence admitted for its non-hearsay purpose or truth purpose, jury would need a
direction to make sure that they used the evidence for the other purpose.
- Hearsay evidence is inadmissible if what you’re trying to prove is what the person
reasonably supposed to intended to assert in the previous representation is true ->
purposive rule
o Unintended representations not caught by the rule (BUT we can draw inference)
- Statements are not captured by the hearsay rule if all you’re trying to prove is that the
statement was said.

Res gestae doctrine

- Common law doctrine – UEA is more straightforward as to what is caught and what is not.
o Don’t worry about this doctrine when applying UEA
- Related to an exception to the hearsay rule – s 65(2)(b)
- Evidence contemporaneous with the time of the event.
- So much part of the event itself – in a sense it is not hearsay but it is just information of the
event.