LAWS50037 · Evidence And Proof
The Hearsay Rule
Hearsay is the big admissibility topic. The legal question is: can an out-of-court statement be used to prove that what it asserted is true? The starting rule is no (s 59) — but only where the evidence is tendered to prove a fact the maker intended to assert. So the analysis is always two steps: (1) does s 59 even bite? — find the non-hearsay use first; and (2) if it does, which exception lets it in? The exceptions form a map: s 60 (the non-hearsay-purpose dual-use route, with the s 60(3) carve-out for admissions), the first-hand exceptions in Division 2 (s 65 maker unavailable, s 66 maker available and ‘fresh in the memory’, s 66A contemporaneous state of mind, plus the s 67 notice requirement), and the other exceptions in ss 69–75 such as business records. Jurisdiction is the Uniform Evidence Law as enacted in Victoria — the Evidence Act 2008 (Vic), with Victorian section numbers throughout.
What this chapter covers
- 01The three defined terms: representation, previous representation, asserted fact
- 02s 59 — the rule, and the intended-assertion hinge
- 03s 60 — the non-hearsay-purpose dual-use exception (and the s 60(3) admissions carve-out)
- 04First-hand hearsay, Division 2 (ss 62–68)
- 05s 65 maker unavailable · s 66 maker available · s 66A state of mind
- 06‘Fresh in the memory’ — Graham v The Queen
- 07Other exceptions ss 69–75 — business records
Worked example: does s 59 bite, and is there an exception?
- +1(a) Fix the use and test s 59. The statement is a previous representation led to prove the fact the maker intended to assert (a red ute was involved). That is a hearsay use, so s 59 applies — check first whether there is a non-hearsay use; here there is not.
- +1(b) First-hand? The witness perceived the event directly, so it is first-hand hearsay within Division 2 — the first-hand exceptions are in play.
- +1(b) Choose the exception. If the maker is available and called, s 66 applies, turning on whether the asserted fact was ‘fresh in the memory’ when the representation was made.
- +1Apply the condition. Per Graham v The Queen, ‘fresh’ is about temporal closeness and vividness; minutes after the event, contemporaneous and vivid, this is comfortably fresh, so s 66 admits it (subject to any discretion).
Key terms
- Hearsay rule (s 59)
- Evidence of a previous representation is not admissible to prove the existence of a fact that the maker intended to assert by it. The rule only bites where the tendered use is to prove the intended asserted fact.
- Previous representation
- A representation (express or implied; oral, written or by conduct) made otherwise than in the course of giving evidence in the proceeding in which it is being adduced — i.e. out of this court. Includes representations not intended to be communicated.
- Asserted fact
- The fact the maker can reasonably be supposed to have intended to assert by the representation. The intention element is the hinge: if the fact you want is not what the maker intended to assert, s 59 does not apply at all.
- s 60 (non-hearsay-purpose exception)
- If a representation is admitted for a purpose other than proving an asserted fact, the hearsay rule does not stop it being used for the hearsay purpose too — except s 60(3) carves out evidence of an admission in a criminal proceeding.
- s 66 (‘fresh in the memory’)
- A first-hand exception where the maker is available and called: a previous representation is admissible if, when it was made, the asserted fact was fresh in the maker’s memory. Per Graham v The Queen, freshness turns on temporal closeness and vividness, not merely accuracy.
The Hearsay Rule FAQ
How do I decide whether the hearsay rule applies at all?
Ask what the statement is being used to prove. The rule (s 59) only bites if the use is to prove a fact the maker intended to assert. If the statement is led for another purpose — to show it was made, to prove the listener’s state of mind, or to attack credibility — s 59 does not apply, and you say so. Always find the non-hearsay use first; many ‘hearsay’ problems dissolve at this step.
What is the difference between s 65 and s 66?
Both are first-hand hearsay exceptions in criminal proceedings, split by whether the maker is available. s 65 applies when the maker is not available to give evidence and sets out its own conditions (e.g. made in circumstances making fabrication unlikely). s 66 applies when the maker is available and is called, and turns on the asserted fact being ‘fresh in the memory’ when the representation was made. Pick the section by the maker’s availability first.
Does s 60 let me use any out-of-court statement for its truth once it is in?
Almost — but mind the carve-out. Section 60 lets evidence admitted for a non-hearsay purpose also be used for its hearsay purpose. However s 60(3) bars that dual-use route for evidence of an admission in a criminal proceeding. So the way into an accused’s own admission is s 81 (the admissions exception), not s 60. The dual-use route can still apply where the maker is not a party to the future trial.
Is hearsay the only rule I need to clear for an out-of-court statement?
No — the rules are cumulative, not alternatives. The same statement may be an opinion (so s 76 also applies) or be led as tendency evidence (so s 97 applies as well). An expert’s out-of-court report, for instance, must clear both the hearsay rule and s 79. Clearing one rule does not cure the others, and the discretions (ss 135–138) still sit at the end of the ladder.
Exam move
Drill the two-step every time: first ask whether s 59 even bites (state the precise rational use and check for a non-hearsay purpose), then, only if it does, choose the exception. Memorise the three defined terms exactly — representation, previous representation, asserted fact — because the intended-assertion hinge decides whether the rule applies. Build a decision-tab for the exceptions keyed on maker availability (s 65 unavailable / s 66 available, fresh in the memory per Graham; s 66A state of mind; ss 69–75 business records and others) and the s 67 notice requirement. Keep the s 60(3) admissions carve-out flagged, and remember hearsay is cumulative with opinion, tendency and the discretions.
