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Act index » Chapter 3 - Admissibility of evidence Introductory Note » Part 3.2 - Hearsay » Division 1 - The hearsay rule
(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.
Subsection (2A) was inserted as a response to the decision of the Supreme Court of New South Wales in R v Hannes
(2000)158 FLR 359.
1The Commonwealth Act and New South Wales Act include another subsection.
2Specific exceptions to the hearsay rule are as follows— • evidence relevant for a non-hearsay purpose (section 60) • first-hand hearsay— • civil proceedings, if the maker of the representation is unavailable (section 63) or available (section 64) • criminal proceedings, if the maker of the representation is unavailable (section 65) or available (section 66) • contemporaneous statements about a person's health etc. (section 66A) • business records (section 69) • tags and labels (section 70) • electronic communications (section 71) • Aboriginal and Torres Strait Islander traditional laws and customs (section 72) • marriage, family history or family relationships (section 73) • public or general rights (section 74) • use of evidence in interlocutory proceedings (section 75) • admissions (section 81) • representations about employment or authority (section 87(2)) • exceptions to the rule excluding evidence of judgments and convictions (section 92(3)) • character of and expert opinion about an accused (sections 110 and 111). Other provisions of this Act, or of other laws, may operate as further exceptions.
1 D is the accused in a sexual assault trial. W has made a statement to the police that X told W that X had seen D leave a night club with the victim shortly before the sexual assault is alleged to have occurred. Unless an exception to the hearsay rule applies, evidence of what X told W cannot be given at the trial. 2 P had told W that the handbrake on W's car did not work. Unless an exception to the hearsay rule applies, evidence of that statement cannot be given by P, W or anyone else to prove that the handbrake was defective. 3 W had bought a video cassette recorder and written down its serial number on a document. Unless an exception to the hearsay rule applies, the document is inadmissible to prove that a video cassette recorder later found in D's possession was the video cassette recorder bought by W.