Commonwealth Consolidated Acts

EVIDENCE ACT 1995 - SECT 59

  (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 NSW in R. v Hannes (2000) 158 FLR 359.

  (3)   Subsection   (1) does not apply to evidence of a representation contained in a certificate or other document given or made under regulations made under an Act other than this Act to the extent to which the regulations provide that the certificate or other document has evidentiary effect.

Note:   Specific 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 (subsection   87(2));
• exceptions to the rule excluding evidence of judgments and convictions (subsection   92(3));
• character of and expert opinion about accused persons (sections   110 and 111).

  Other provisions of this Act, or of other laws, may operate as further exceptions.

Examples:

(1)   D is the defendant 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.