Chapter 2 - Hearsay & Exceptions to Hearsay Rule
Hearsay
1. General Rule
What is the hearsay rule? s 59 (1) UEL: Evidence of a previous representation (which the Acts define as a representation made otherwise than in the course of giving evidence in the current proceedings) made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation.
S59 (2): Such a fact in this Part referred to as an asserted fact.
The CL definition differs from that given in the uniform Evidence Acts. 2. What is hearsay – definitional issues
(a) 'previous representation'
Defined in s 3(1) Evidence Act 2001 (Tas): as a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced.
Representation includes:
a. an express or implied representation (whether oral or writing); and
b. a representation to be inferred from words and conduct made by person; and
c. a representation not intended by its maker to be communicated to or seen by another person; and (intentional assertion)
d. Tendered to prove the truth of the fact of that the maker intended to assert
Lee v R (1998) 195 CLR 594 at [21]: HC commented that ‘representation is often used in the law to refer to words that are intended to induce action or inaction by the person who hears or reads them.
(b) Intentional assertions of fact
Lee v R: Lee was indicted was on a charge of assault of Patricia Jones with intent to rob whilst armed. Mr. Calin gave evidence in a written statement stating that the appellant said to him that he fired two shots but during trial he said he did not recall saying that. The trial judge ruled that there was evidence from which the jury could conclude that Mr.Calin had made the statement. The statements made by Mr.Calin were of two kinds:
He gave an account of what he had seen and done: “I was walking up the street near Hyatt”… “I saw this bloke…he walked past me and I saw he was sweaty and
1. General Rule
What is the hearsay rule? s 59 (1) UEL: Evidence of a previous representation (which the Acts define as a representation made otherwise than in the course of giving evidence in the current proceedings) made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation.
S59 (2): Such a fact in this Part referred to as an asserted fact.
The CL definition differs from that given in the uniform Evidence Acts. 2. What is hearsay – definitional issues
(a) 'previous representation'
Defined in s 3(1) Evidence Act 2001 (Tas): as a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced.
Representation includes:
a. an express or implied representation (whether oral or writing); and
b. a representation to be inferred from words and conduct made by person; and
c. a representation not intended by its maker to be communicated to or seen by another person; and (intentional assertion)
d. Tendered to prove the truth of the fact of that the maker intended to assert
Lee v R (1998) 195 CLR 594 at [21]: HC commented that ‘representation is often used in the law to refer to words that are intended to induce action or inaction by the person who hears or reads them.
(b) Intentional assertions of fact
Lee v R: Lee was indicted was on a charge of assault of Patricia Jones with intent to rob whilst armed. Mr. Calin gave evidence in a written statement stating that the appellant said to him that he fired two shots but during trial he said he did not recall saying that. The trial judge ruled that there was evidence from which the jury could conclude that Mr.Calin had made the statement. The statements made by Mr.Calin were of two kinds:
He gave an account of what he had seen and done: “I was walking up the street near Hyatt”… “I saw this bloke…he walked past me and I saw he was sweaty and