Hearsay? Evidence Act 2008 Section 59 The hearsay ruleexclusion of - - PowerPoint PPT Presentation

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Hearsay? Evidence Act 2008 Section 59 The hearsay ruleexclusion of - - PowerPoint PPT Presentation

Sep 02, 2022 324 likes •442 views

What is Hearsay? Evidence Act 2008 Section 59 The hearsay ruleexclusion of hearsay evidence (1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed

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What is

Hearsay?

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SLIDE 2

Evidence Act 2008 — Section 59

The hearsay rule—exclusion of hearsay evidence (1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation. (2) Such a fact is in this Part referred to as an asserted fact. (2A) For the purposes of determining under subsection (1) whether it can reasonably be supposed that the person intended to assert a particular fact by the representation, the court may have regard to the circumstances in which the representation was made.

Note Subsection (2A) was inserted as a response to the decision of the Supreme Court of New South Wales inR v Hannes(2000) 158 FLR 359.

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Evidence Act 2008 — Section 59

The hearsay rule—exclusion of hearsay evidence (1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation. (2) Such a fact is in this Part referred to as an asserted fact. (2A) For the purposes of determining under subsection (1) whether it can reasonably be supposed that the person intended to assert a particular fact by the representation, the court may have regard to the circumstances in which the representation was made.

Note Subsection (2A) was inserted as a response to the decision of the Supreme Court of New South Wales inR v Hannes(2000) 158 FLR 359.

  • 1. a previous representation
  • 2. made by a person
  • 3. containing an asserted fact
  • 4. intended to be asserted by the

maker (objectively determined)

  • 5. adduced by a party to prove the

asserted fact

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  • Maker of previous representation

must be human.

  • Not usually a contentious issue.
  • Obviously excludes animals.
  • Query whether it excludes

computer generated statements.

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  • Express assertions are easy to

decipher.

  • Implied assertions involve

reading between then lines (e.g. Walton v R – “Hello Daddy”).

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  • Maker of previous representation

must intend to assert fact.

  • What are her intentions right now?
  • Intention determined objectively
  • Intention not contentious in

relation to express assertions.

  • Can implied assertions be

unintended?

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  • Why is counsel adducing evidence?
  • How is it relevant?
  • Is it relevant because it proves the

asserted fact? If so, it’s hearsay.

  • Is it relevant for another purpose?
  • Is it relevant for multiple purposes?
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  • Why is counsel adducing evidence?
  • How is it relevant?
  • Is it relevant because it proves the

asserted fact? If so, it’s hearsay.

  • Is it relevant for another purpose?
  • Is it relevant for multiple purposes?
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  • Section 59 excludes the evidence being

admitted for a hearsay purpose.

  • But consider whether an exception might apply

(e.g. s 60, 62-67, 69, 81).

  • Is it relevant because it proves the asserted fact?

If so, it’s hearsay.

  • Is it relevant for another purpose?
  • Is it relevant for multiple purposes?

Don’t forget the exceptions!