Civil Trials Bench Book — Evidence

This chapter is predominantly concerned with the Evidence Act’s treatment of hearsay evidence. The High Court has recently confirmed its earlier view (Bannon v The Queen (1995) 185 CLR 1) that, in jurisdictions where the Evidence Act has not been enacted, hearsay confessional statements made by one accused prior to a joint trial will not ordinarily be admitted to exculpate the other accused: Baker v The Queen (2012) 245 CLR 632 at [54]–[56]. To be admitted, it must be shown that the maker of the confessional statement apprehended that it was to his prejudice to have made admissions implicating himself alone as opposed to having acted in concert with the other accused: at [49]. The High Court held that even in these circumstances there will invariably be a real issue as to the reliability of the confession: at [52]. There was no warrant in altering the common law of evidence simply because of the enactment of the Evidence Act in a number of states throughout Australia.

The hearsay rule is stated in s 59: 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 (subs (1)); and in determining that issue the court may have regard to the circumstances in which the representation was made (subs (2A)). The specific exceptions to the hearsay rule provided by the Evidence Act otherwise than by s 60 are listed in the Note to the text of s 59, and include contemporaneous statements about a person’s health or state of mind (s 66A) (previously s 72), business records (s 69), Aboriginal and Torres Strait Islander laws and customs (s 72) and admissions (s 81).

The terms “previous representation” and “representation” are defined in the Dictionary to the Evidence Act.

A representation includes both statements and conduct, and encompasses all that those statements or that conduct would convey to the listener, reader or observer: Lee v The Queen (1998) 195 CLR 594 at [21]–[22]. (That statement does not appear to be affected by the amendments made to ss 59–60 by the Evidence Amendment Act 2007 as a result of ALRC Report 102, responding to the decisions of Lee v The Queen and R v Hannes [2000] NSWCCA 503, but the restriction which Lee imposed — that it is limited to those assertions which were in fact intended by the maker of the representation — has been removed by the deletion from what is now s 60(1) of the words “the fact intended to be asserted by the representation”.)

Silence in the face of an allegation can amount to a representation that the allegation is true where in the circumstances it is reasonable to expect that the allegation would be answered by an explanation or denial; such an expectation would not be reasonable where the allegation is made to a suspect who has been warned that he has the right to remain silent: R v Rose (2002) 55 NSWLR 701 at [260]–[261].

A finding pursuant to s 88 of the Evidence Act, that it is reasonably open that a person made a particular admission (representation), is made only for the purpose of determining whether evidence of an admission is admissible; it is not a finding made for all purposes, and if the evidence is admitted the question of whether the admission was in fact made remains: R v Lodhi (2006) 163 A Crim R 526 at [23]; ACCC v Pratt (No 3) (2009) 175 FCR 558 at [63]–[64].

“can reasonably be supposed that the person intended to assert”: In determining whether a person can reasonably be supposed to have intended to assert the existence of facts contained in a previous representation, the test to be applied is an objective one — what, in the circumstances in which the representation was made, it can reasonably be supposed that a person in the position of the maker of the representation intended to convey: ALRC Report 102, 7.60-62. The ALRC stated (at 7.61) that this test is “external” to the maker of the representation, and that an investigation into the subjective mindset of the representor is “not required”.

The operation of the hearsay rule requires consideration first of why it is sought to lead evidence of something said or done out of court (a previous representation). What is it that the previous representation is led to prove? If it is sought to lead it to prove the existence of a fact that the person who made the representation intended to assert, it is hearsay: Lee v The Queen (1998)195 CLR 594 at [22]; Li v R (2010) 199 A Crim R 419 at [50]–[54].

A representation is not confined to a matter which is relevant to the immediate facts in issue; it may include a matter which is relevant to facts relevant to the facts in issue: R v Ambrosoli (2002) 55 NSWLR 603 at [18]–[25], [36]–[37].

A previous representation in s 59 is, in general law parlance, an out-of-court statement, although it may also be a representation by conduct: Trimcoll Pty Ltd v Deputy Commissioner of Taxation [2007] NSWCA 307 at [29].

A recorded telephone conversation between two people who are not called as witnesses may be admissible to establish a relevant fact in issue in the case such as the association of the accused with the money being discussed: Li v R (2010) 199 A Crim R 419. It is respectfully suggested that care be taken in the application of this decision.

“personal knowledge”: In Lee v The Queen, at [34]–[35], the High Court held that the “first-hand” hearsay provisions in Div 2 (ss 62–68) of the Evidence Act were confined to previous representations made by persons who had personal knowledge of the asserted facts, because the ALRC had made the point in ALRC 26 (at par 678) that second-hand hearsay is generally so unreliable that it should be inadmissible except where some guarantees of reliability can be shown together with a need for its admissibility. Section 60(2) was inserted to provide that s 60 applies whether or not the person who made the representation had personal knowledge of the asserted fact (within the meaning of s 62(2)).

Section 60(3) excludes the operation of s 60 in relation to admissions in criminal trials.

“purpose”: The “purpose” in s 60 for which the evidence is led does not refer to the motive or the subjective purpose of the party seeking to adduce the evidence; the word “purpose” refers to the use to which the evidence, if admitted, would be put as objectively ascertained: R v Adam (1999) 47 NSWLR 267 at [115]–[116] (an appeal to the High Court was dismissed, without specific reference to this issue: Adam v The Queen (2001) 207 CLR 96). (This statement does not appear to be affected by the amendments made to ss 59–60 by the Evidence Amendment Act as a result of ALRC Report 102, responding to the decision of Adam v The Queen on a different issue.) The issue is: What is it that the previous representation is led to prove? If it is led in order to prove the existence of a fact that the person who made the representation intended to assert by it (in the sense already discussed under “can reasonably be supposed that the person be intended to assert”), the hearsay rule applies to it, and the evidence is not admissible to prove the existence of that fact: Lee v The Queen at [22]; R v Adam at [121]–[124].

Facts intentionally asserted out of court by a witness (in the same sense) and adduced in evidence, if adduced in order to prove the truth of those facts, necessarily involves a hearsay use of that evidence. However, if the evidence is led merely to prove, for example, a previous statement by the maker of the representation which is inconsistent with evidence he subsequently gives, that purpose is a non-hearsay one and, subject to relevance and issues of unfair prejudice, the previous statement is evidence of the fact asserted in that previous statement. In this way, s 60 reverses the common law as stated in, for example, Ramsay v Watson (1961) 108 CLR 642 at 649; Kilby v The Queen (1973) 129 CLR 460 at 472; and Walton v The Queen (1989) 166 CLR 283 at 307. See ALRC 26, vol 1, par 685; R v Welsh (1996) 90 A Crim R 364 at 367–369; Eastman v R (1997) 158 ALR 107 at 170; R v BD (1997) 94 A Crim R 131 at 137. Thus, the history given to a medical practitioner, and recited by the practitioner as the basis for his expert opinion, establishes the truth of that history: R v Welsh, above, at 367–369; subject to the power to limit its use for that purpose pursuant to s 136 (see, for example, Quick v Stoland Pty Ltd (1998) 87 FCR 371 at 625).

Another example of a non-hearsay use of evidence is to be found where, in a trial on a charge of deemed supply (based on the possession of the required quantity of drugs), an agreement to supply the drugs was also established — based on oral statements between the accused and an undercover police officer: R v Macraild (unrep, 18/12/97, NSWCCA) at 10.

In Lee v The Queen (1998) 195 CLR 594, the High Court agreed (at [39]) that s 60 was intended to make previous inconsistent statements made by a witness evidence of the truth of that inconsistent statement, and the history given to a medical practitioner evidence of the truth of that history. However, the High Court’s view (at [40]) that there was no basis for concluding that s 60 was intended to provide a gateway for the proof of any form of hearsay, however remote, has now been met by the amendments made to s 60, which confirm that the section operates for such evidence to prove the truth of the facts asserted in the representation whether or not the evidence is first-hand or more remote hearsay — but subject to the exclusionary provisions in Pt 3.11 of the Evidence Act (Discretionary and mandatory exclusions, ss 135–139): ALRC Report 102, 7.105.

Where the evidence of prior statements of a witness is admitted to establish that witness’s state of mind (and where that is a relevant issue), they are admissible for that purpose pursuant to s 66A (previously s 72) (Exception: contemporaneous statements about a person’s health etc) as an exception to the hearsay rule: see [4-0365].

Statements made by way of complaint in sexual assault cases frequently ascribe a particular state of mind to the accused; such evidence is admissible to show consistency on the part of the complainant and becomes evidence of the truth of what was stated pursuant to s 60: R v Whyte [2006] NSWCCA 75 at [28]–[31], [65].

Where the Crown relies on a previous representation of a witness contained in statements made by him for the purpose of identifying the evidence he would give, and thus not subject to the hearsay rule (in accordance with s 66), the previous representation may still be admissible in cross-examination as to the credit of the witness (once leave to cross-examine has been granted pursuant to s 38) and thus becomes evidence of its truth in accordance with s 60: Aslett v R [2006] NSWCCA 49 at [71]–[72], following Adam v The Queen, above, at [36]–[37]. (This statement does not appear to be affected by the amendments made to ss 59–60 by the Evidence Amendment Act as a result of ALRC Report 102, responding to the decision of Adam v The Queen.)

Evidence given through an interpreter is not regarded as hearsay; it is an integral part of communicating the evidence in another language so that it is intelligible. That was the position at common law: Gaio v The Queen (1960) 104 CLR 419 at 421, 429, 430; R v Salameh (1985) 4 NSWLR 369 at 373. Those cases have been applied to the Evidence Act in Tsang Chi Ming v Uvanna Pty Ltd t/as North West Immigration Services (1996) 140 ALR 273 at 281–282 and in R v Morton (2008) 191 A Crim R 333 at [38].

A witness who asserts that he agrees with the evidence given (either orally or by affidavit) by another witness infringes the hearsay rule, and caution is required before that evidence is permitted where the evidence in question is in dispute; the Evidence Act requires a witness to give unambiguous evidence of what that witness saw or heard where the subject of that evidence is in dispute: Singh v Singh [2007] NSWSC 1357 at [8]–[14].

There remains the difficult question whether “not admissible” in s 59 means “not admissible over objection” or “not admissible” regardless of whether an objection has been taken. The NSWCCA has recently affirmed a strong preference for the former view: Perish v R (2016) 92 NSWLR 161; [2016] NSWCCA 89. However it refrained from an affirmative position on the proper interpretation of s 137: see [4-1630]. The better view is that in a criminal trial there is always a positive and overriding duty to ensure a fair trial and to prevent a miscarriage of justice. In Panayi v DC of T [2017] NSWCA 93, the NSW Court of Appeal agreed with the Court of Criminal Appeal decision in Perish v R, above, that the words “not admissible” in s 59 mean “not admissible over objection”.

Section 61(1) requires that a previous representation may not be used to prove the existence of the fact asserted in the hearsay evidence tendered if the person who made the representation was not competent him or herself to give evidence of that fact because of s 13(1).

Section 13(1) has been reformulated by the Evidence Amendment Act. The test of competence remains the capacity of the witness to understand a question about the particular fact or to give an answer to a question about that fact: s 13. It permits a person not competent to give sworn evidence to give unsworn evidence about that fact. A person not competent to give evidence about the particular fact may give evidence about other facts if competent to do so.

Section 61(2) excludes the operation of s 61 in relation to evidence of a contemporaneous representation made by a person about his or her health, feelings, sensations, intention, knowledge or state of mind (see s 66A, previously s 72, discussed in [4-0365]).

In R v Baladjam (No 43) [2008] NSWSC 1461 an accused, charged with conspiracy to do acts in preparation for a terrorist act, was found to be unfit for trial. A number of statements to his alleged co-conspirators were sought to be tendered by the Crown in the trial against the other men. Objection was taken on the basis that lack of competency required exclusion of the material. The scope and purpose of the section was discussed (Whealy J) at length. Ultimately, the material was allowed as falling within the exception contained in s 61(2).

Anderson, Williams and Clegg, in The New Law of Evidence (2nd edn, 2009), suggest (at 61.1) that hearsay evidence of a toddler’s cry of pain (assuming that it can reasonably be assumed in the circumstances of the particular case that there was an intention to communicate pain) would be admissible to prove the existence of that pain, even though the toddler would not be competent to give evidence of that fact for the purposes of s 13(1).

Odgers, Uniform Evidence Law, had suggested in editions prior to the ninth (2010) edition (at [1.3.1020]) that s 61 — which had not been expressly recommended by the Australian Law Reform Commission — was intended to ensure that the out-of-court representations were made by a person who was competent at the time the representations were made but not at the time of trial, as that such a person is “unavailable to give evidence” as that phrase is defined in the Dictionary, Pt 2 cl 4(1)(b).

“First-hand” hearsay — Pt 3.2 Div 2 (ss 62–68)

The phrase “personal knowledge of an asserted fact” is defined in s 62(2). It does not require a finding that the person did have the requisite knowledge; the judge need conclude only that the representation might reasonably be supposed to have been based on personal knowledge. Such a conclusion cannot be reached where it is at least equally possible (and where there is no other indication on face of the material) that the person may have been given the information by somebody else: Citibank Ltd v Liu [2003] NSWSC 69 at [4].

Proof that the person had the requisite personal knowledge requires the judge’s satisfaction of that fact on the balance of probabilities (s 142); the gravity of the charge in a criminal trial is irrelevant to that decision (notwithstanding Briginshaw v Briginshaw (1938) 60 CLR 336 at 362–363): R v Vincent (2002) 133 A Crim R 206 at [19].

Where first-hand hearsay is sought to be tendered, the first task is to identify the “previous representation” sought to be admitted and by whom it is said to have been made; the second task is to identify the “fact” that person intended to assert in that representation; and the third task is to identify the fact in issue (or the fact relevant to a fact in issue) the probability of the existence of which is said to be affected by the evidence: Vickers v R (2006) 160 A Crim R 195 at [51]. (The third task invokes the issue of relevance in accordance with s 55; see [4-0200].) Thus, if the fact to be established is said to be relevant to the issue of whether a party did a particular act, and if that fact is sought to be proved by a previous representation by a person who intended to say only that he had heard the party say (or imply) that he had done that act, such a representation is inadmissible to establish that he had done that act because the person had not seen the party do so: Vickers v R at [50]–[53]. See also Caterpillar Inc v John Deere Ltd (No 2) [2000] FCA 1903 at [15].

Section 62(3) (a person has personal knowledge of an asserted fact if it is about that person’s health, feelings, sensations, intention, knowledge or state of mind at the time the representation was made) was inserted in order to limit the exception to the hearsay rule relating to the admissibility of contemporaneous statements concerning those matters (in s 66A, previously s 72) to first-hand hearsay: Explanatory Memorandum to the Evidence Amendment Act, Item 25.

The terms “civil proceeding”, “previous representation” and “representation” are defined in Pt 1 of the Dictionary to the Evidence Act: see [4-0300]. The phrase “not available to give evidence” is dealt with in Pt 2 of the Dictionary. The fact “intended to be asserted” by the maker of the representation is also discussed at [4-0300].

“not available”: The Dictionary to the Evidence Act provides that a person is taken to be not available to give evidence about a fact if that person is not competent to do so. Section 13(1) provides that a person is not competent to give evidence about a fact:

This provision is expressed in substantially different terms to those considered in Cox v NSW (2007) 71 NSWLR 225 at [15]–[17], which appears to be no longer relevant to the issues raised under s 13 in its present form.

The fact that giving evidence may be detrimental to a witness’s psychological health and welfare does not render the witness unavailable within the meaning of s 63: Clancy v Plaintiffs A, B, C and D; Bird v Plaintiffs A, B, C and D [2022] NSWCA 119 at [70].

“attendance”: The attendance (to give evidence) referred to in cl 4(1)(f), in Pt 2 of the Dictionary (Unavailability of persons), is attendance by way of physical presence in the courtroom or other place in which the relevant proceedings are being conducted, with that courtroom or other place being understood as encompassing any remote location deemed by relevant legislation such as the Evidence (Audio and Audio Visual Links) Act 1998 to be included within it; whereas a person examined pursuant to the Evidence on Commission Act 1995, on the other hand, is never “in attendance” to give evidence in a New South Wales court: Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2009] NSWSC 769 at [24]; Singh v Newbridge Property Group Pty Ltd [2010] NSWSC 411 at [14].

“reasonable steps”: Reasonable steps to have the maker of the representation attend to give evidence include the retention of an experienced investigator who has carried out inquiries that might reasonably be expected to have been taken by a competent investigator to locate a proposed witness: AJW v State of NSW [2003] NSWSC 803 at [15].

There is a distinction drawn in the Dictionary between taking all reasonable steps without success:

The requirements are disjunctive, and it is only necessary to satisfy one or the other of them: Quintano v BW Rose Pty Ltd [2008] NSWSC 1012 at [13]–[14].

A conclusion that a witness is unavailable within the definition in cl 4(1)(f) is an evaluative determination and is not an exercise of the court’s discretion: Clancy v Plaintiffs A, B, C and D; Bird v Plaintiffs A, B, C and D, above, at [73] (disapproving the judgment of Stein AJA in Longhurst v Hunt [2004] NSWCA 91 at [43]). Hence, the constraints on appellate intervention imposed by House v The King (1936) 55 CLR 499 are not applicable.

Clause 4(1)(f) might be satisfied by a compulsive process such as a subpoena: Clancy v Plaintiffs A, B, C and D; Bird v Plaintiffs A, B, C and D, above, at [69] and [74] (in this case no subpoena had been served — nothing had been done to secure the child witness’s attendance beyond asking her mother — hence the Court of Appeal’s finding that the primary judge erred in holding the child witness was not available to give evidence).

Clause 4(1)(g) becomes applicable only where, despite that person’s attendance, he or she declines to give evidence — on the basis of a claim of privilege, or simply refuses to give evidence notwithstanding the consequences of being in contempt of court: Mindshare Communications Ltd v Orleans Investments Pty Ltd [2007] NSWSC 976 at [14]–[16]. If the witness refuses to answer, he or she is taken to be “not available” within cl 4(1)(g): R v Suteski (2002) 56 NSWLR 182 at [83] (this statement would appear to have survived other criticisms of that decision by the Law Reform Commission in ALRC Report 102; note: cl 4 was renumbered by Evidence Amendment Act 2010, Sch 1 [7], commenced 14.1.2011). However, the mere fact that a witness refuses to answer questions, without more, will not always satisfy the requirements of cl 4(1)(g); there must be some evidence that “all reasonable steps” have been taken to compel the witness to give evidence: RC v R [2022] NSWCCA 281 at [114]–[115]. What constitutes “all reasonable steps” will depend upon the circumstances of the particular case, with some relevant considerations including the nature of the case, the importance of the evidence, the higher standard of proof in a criminal trial and the importance of the liberty of the individual.

Whether “reasonable steps” require the trouble and expense of taking evidence from an absent witness in a foreign court depends on whether the witness would give evidence in such proceedings in any useful form: Mindshare Communications Ltd v Orleans Investments Pty Ltd, above, at [23]. Where a witness has given a statement of evidence critical to the success of a party, but departs or is about to depart for overseas for an indefinite period shortly before the trial, “reasonable steps” may require taking the witness’s evidence prior to that departure, or serving a subpoena to attend the trial and obtaining a bench warrant to prevent the departure, or taking evidence by way of audio-visual link after the departure, or seeking an adjournment of the trial: Longhurst v Hunt, above, at [41]–[42]. However, if the witness, having been served with a subpoena to attend and give evidence, leaves the country in order to avoid giving evidence, it is open to a trial judge to rule that all reasonable steps had been taken to compel the witness to give evidence: Puchalski v R [2007] NSWCCA 220 at [98].

The mere unwillingness of a witness to attend in compliance with a subpoena is not sufficient to establish that the witness is unavailable if reasonable steps are not taken to enforce the subpoena: Darlaston v Parker (2010) 196 IR 307 at [252]–[255].

“reasonable notice”: Reasonable notice enables the opposing party to reconsider how it is going to conduct its case and whether it needs to call another witness to prove what it reasonably hoped to elicit from the unavailable witness: Puchalski v R [2007] NSWCCA 220 at [102].

Miscellaneous: An affidavit is not documentary hearsay, and may be read into evidence in accordance with the rules of court, and in accordance with the previous practice of the court; it thus does not fall within the terms of s 63: Protective Commissioner v B (unrep, 23/6/97, NSWSC) at 3–4; In the Marriage of Chang and Su (2002) 29 Fam LR 406 at [45]–[49].

The representation need not be in a form which could, over objection, properly have been given as direct oral evidence by its maker if called as a witness: John Fairfax & Sons Ltd v Vilo [2001] NSWCA 290 (reported on other issues at (2001) 52 NSWLR 373) at [74].

There will always be a degree of prejudice to another party where the maker of the statement is unavailable for cross-examination. Generally speaking, that degree of prejudice is treated by s 63 as not rendering the admission of the material necessarily unfair. The effect of ss 63 and 135 in combination is that the party opposing admission will generally bear the persuasive burden of satisfying the court that any probative value is substantially outweighed by the danger of unfair prejudice to it: Workers Compensation (Dust Diseases) Board of NSW v Smith [2010] NSWCA 19 at [84].

Representations made by a person as to the contents of a will he had made are, contrary to the common law, admissible after his death as evidence of the execution of that will and its contents: In the Estate of Ralston (unrep, 12/9/96, NSWSC) at 7–8.

Where the person who made the representation has not and will not be called as a witness, evidence relevant only to that person’s credibility is admissible where it has substantial probative value: s 108A.

Notice: Notice of an intention to adduce evidence in accordance with s 63(2) is required: s 67.

Clause 4(1) of the Dictionary identifies the various situations in which a person is taken to be not available to give evidence about a fact — where the person is dead or not competent to give evidence about the fact (otherwise than in accordance with s 16); where it would be unlawful for that person to give evidence about the fact or the Evidence Act prohibits the evidence to be given; and where all reasonable steps have been taken by the party seeking to find or to secure the attendance of the person or to compel that person to give evidence, without success. Clause 4(2) provides that in all other cases the person is taken to be available to give evidence about that fact.

The hearsay rule applies if the person who made the previous representation is available to give evidence about an asserted fact, but not if it would cause undue expense or undue delay, or would not be reasonably practicable, to call the person who made the representation to give evidence.

Whether the expense would be “undue” if the person who made the representation were to be called to give evidence may be determined by comparison of that cost with the value of what is at stake in the litigation and an assessment of the importance of the evidence that person might give: Caterpillar Inc v John Deere Ltd (No 2) [2000] FCA 1903 at [25]; Citibank Ltd v Liu [2003] NSWSC 69 at [6]–[9]. Whether the delay caused by having to call that person to give evidence is “undue” may be determined by comparison with the overall length of the proceedings, taking into account the importance of the evidence and the extent to which the evidence to be given is disputed: De Rose v South Australia (No 4) [2001] FCA 1616 at [13]–[16]; Citibank Ltd v Liu, above, at [5]. Also relevant is the willingness of the witness to give evidence, whether in person or by means of electronic technology: Citibank Ltd v Liu at [6], [8].

The hearsay rule will not apply to the previous representation made by a person if that person gives evidence: s 64(3). Since the Evidence Amendment Act, where the maker of the representation is available and giving evidence, it is no longer a requirement that the occurrence of the asserted fact was fresh in the memory of that person when making the representation. The previous representation must, however, have been made with personal knowledge of the asserted fact: s 64(2)(a).

Where a witness has concluded his evidence and is not to be recalled, evidence from another source of a representation made by that witness is not admissible pursuant to s 64(1): Osborne Metal Industries v Bullock (No 1) [2011] NSWSC 636 at [26].

Where the person who made the representation has not and will not be called as a witness, evidence relevant only to that person’s credibility is admissible only where it has substantial probative value (s 108A) — the same phrase used in s 103, where the evidence must be capable of bearing significantly on the assessment of that person’s credibility: R v RPS (unrep, 13/8/97, NSWCCA) at 29; Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 595 at [85]–[88]; R v El-Azzi [2004] NSWCCA 455 at [179]–[183].

Notice: Notice of an intention to adduce evidence in accordance with s 64(2) is required: s 67.

The terms “criminal proceeding”, “previous representation” and “representation” are defined in Pt 1 of the Dictionary to the Evidence Act. The second and third of those phrases and the phrase “intended to be asserted” by the maker of the representation are also discussed in Div 1 of this Chapter at [4-0300]. The phrase “not available to give evidence” is dealt with in Pt 2 of the Dictionary, and is discussed under s 63, at [4-0330].

The Evidence Amendment Act has amended s 65(2)(d) so as to require that a representation, made against the interests of the person who made it at the time it was made, must also be made in circumstances that made it likely that the representation is reliable, thus overcoming a previous interpretation of s 65 that the two indicia were alternatives (R v Suteski (2002) 56 NSWLR 182 at [83]–[84]), and strengthening the comment made by Gleeson CJ, when the High Court refused special leave to appeal (Suteski v R [2003] HCATrans 493 at 3), that s 65 required some “[r]easonable assurance” of reliability. The proposition stated in R v Morton (2008) 191 A Crim R 333 at [35], insofar as it may suggest that it is sufficient if either test is satisfied, is no longer applicable.

Section 65 does not render admissible an entry in a document where that entry was neither seen nor otherwise perceived to have been made: Conway v R [2000] 98 FCR 204 at [154] (this issue did not arise in the appeal to the High Court: Conway v The Queen (2002) 209 CLR 203).

The previous representation is not confined to the alleged crime itself: R v Ambrolosi (2002) 55 NSWLR 603 at [25].

Evidence given by doctors in other proceedings recited in a judgment and given in a judgment on appeal from those proceedings does not constitute first-hand hearsay evidence of the facts stated by those doctors in that evidence in subsequent proceedings: Cvetkovic v R [2010] NSWCCA 329 at [300].

Section 65 is not restricted in its application to prosecution witnesses only; its terms extend to previous representations by a co-accused and, insofar as the previous representation identifies an admission made by the accused, the admissibility of that evidence is governed by s 65 and not s 82 (Exclusion of evidence of admission that is not first-hand): Taber v R (2007) 170 A Crim R 427 at [38].

An example of a person under a duty to make a representation of a particular kind in giving information to the authorities to whom s 65(2)(a) would apply, who may also be an accomplice with an interest to serve, was suggested in argument in a special leave application in the High Court, to be a corporate wrongdoer: Suteski v R, above, at 4 (see R v Suteski (No 4) (2002) 128 A Crim R 275, Kirby J, at [21], [27]).

Reliability: Evidence which tends only to prove the asserted fact is irrelevant to this issue: R v Ambrosoli, above, at [34]; Harris v R (2005) 158 A Crim R 454 at [41]. Evidence other than of the immediate circumstances in which the representation was made may, however, be relevant to establish either a subsequent (genuine) retraction by the maker of the representation or an incapacity of the witness to have seen, heard or otherwise perceive the matter which was the subject of the representation being made: R v Ambrosoli at [29]. The identified statements in these two cases appear to have survived the amendment made to s 65.

For a fabrication to have been unlikely the representation must have been made “when or shortly after” the asserted fact occurred, in the context of demonstrating that the circumstances make it unlikely that the representation is a fabrication the phrase “when or shortly after” is not directed to the state of recollection by the maker of the representation; the reliability of the representation is dependent on the representation having been made spontaneously during or under the proximate pressure of the events: Williams v R (2000) 119 A Crim R 490 at [47]–[49]; R v Ambrolosi at [25]. Compare Harris v R, above, at [37]–[46], where it was held that it had been open to the trial judge to hold that twenty-four hours was “shortly after” the events. The decision in Harris has been criticised by S Odgers, Uniform Evidence Law at [1.3.2060]. The Full Court of the Federal Court, when deciding Williams v R, above, did not refer to its earlier decision in Conway v R (2000) 98 FCR 204 where it had held (at [134]) that the phrase “shortly after” was intended to reflect “the subject matter of the event and by how long the memory of such an event is likely to have remained clear in the mind”. It is suggested that the approach of the Full Court of the Federal Court in Williams and of the NSW Court of Criminal Appeal in Ambrolosi is to be preferred to that in Conway v R and Harris.

The requirements of s 65(2)(c) (reliability highly probable) are more onerous than those of s 65(2)(b) (fabrication unlikely): R v Toki (No 3) (2000) 116 A Crim R 536 at [95]; Williams v R at [55], following Conway v The Queen on this point. The Law Reform Commissions saw no harm in the overlap between the two requirements: ALRC Report 102 (at 8.49).

Where a witness claims no present recollection of facts of which he had given evidence in previous proceedings, in circumstances demonstrating that he is not telling the truth in relation to that recollection, s 65 has no application to make that previous evidence admissible, and s 38 (leave to cross-examine) provides the appropriate remedy: Tan v R (2008) 192 A Crim R 310 at [56]–[61].

Against interest: In determining whether a representation was against the interests of the person who made it at to the time (s 65(2)(d)), s 65(7) provides a non-exhaustive list of circumstances in which are taken for the purposes of s 65(2)(d) to be against the interests of the person who made the representation.

A statement made by a person implicating himself in a joint criminal enterprise with the accused to bash the victim was held to be against that person’s interests; notwithstanding that his interests as an accomplice may also have been served, the statement he made (albeit with mixed motives) was nevertheless objectively against his interests at the time they were made: R v Suteski (No 4) [2002] NSWSC 218 (Kirby J) at [25]–[28], [50]. That decision was held to be correct on appeal: R v Suteski (2002) 56 NSWLR 182 at [92]–[94]. Special leave to appeal was refused by the High Court ([2003] HCATrans 493), the point being made by Gleeson CJ during argument that s 65(7) is in part a deeming provision. The absence of knowledge on the part of the maker of the representation that it was against his interests may be relevant to the exercise of the discretion under s 137 (R v Suteski (No 4) (Kirby J) at [53]), where the weight to be given to the representation was held to be less substantial because its maker had not fully perceived that the statement was against his interests.

The High Court has recently examined the requirement in s 65(2)(d), “made in circumstances that make it likely that the representation is reliable”, in Sio v The Queen (2016) 259 CLR 47. The appellant was convicted of armed robbery with wounding for his role in the robbery of a brothel by his co-offender who had stabbed and killed an employee of the brothel. The co-offender (who was tried separately) had given an ERISP interview to police. In the interview, he claimed the appellant had encouraged him to commit the robbery (“he gave me the knife”): see [14]. These hearsay statements were admitted against the appellant at trial pursuant to s 65(2)(d). The High Court allowed the appellant’s appeal unanimously. One basis was the erroneous admission of the co-offender’s hearsay statements. The NSWCCA had erred in taking a “compendious approach” to s 65 (see [51]); it had considered the issue of the likely reliability of the accomplice’s statement by examining the timing of the statement and the “overall impression” gained from his evidence as a whole. Properly understood, s 65 requires that the court identify each material fact that would be proved by a hearsay statement and that the section be applied to that statement. Here, the accomplice’s statement was “apt to minimise his own culpability by maximising” that of the appellant and did not satisfy the statutory test: see [68].

Opportunity to cross-examine: The admissibility of evidence pursuant to s 65(3) of a previous representation given in earlier proceedings by a person who is not available to give evidence is not limited to the situation where that person saw, heard or otherwise perceived the representation being made. The Law Reform Commission explained that the previous evidence was already the subject of “the pressures against fabrication”, but it suggested that it may be appropriate to restrict such evidence to routine matters and to reject other such evidence on discretionary grounds where the accused would be prejudiced by the inability of the jury to judge the witness’s demeanour and by the absence of the opportunity to cross-examine: ALRC Report 26, vol 1, par 692.

An example of the application of s 65(3) is to be found in R v Cross (unrep, 8/9/98, NSWCCA) at 9–10, where the transcript of evidence given by a witness in the committal proceedings (who had since died) was tendered at the trial.

The accused has been regarded as “unavailable” for the purposes of s 65 where the prosecution tenders evidence of statements made by him to the police in the course of their investigation: R v Salama [1999] NSWCCA 105 at [85]. Section 17(2) of the Evidence Act specifically provides that the accused is not competent to give evidence as a witness for the prosecution. However, in R v Parkes (2003) 147 A Crim R 450 at [47]–[49], it was held by majority that the concept of “availability” in ss 65–66 makes the accused “notionally” available in his own case to give evidence to confirm the statement he made to the police. No reference was made by the majority to Salama. In R v Lodhi (2006) 163 A Crim R 526 at [43], Whealy J cited Parkes at 459 (which page includes [47]–[49]) as authority for the obvious proposition that the accused is not available in the Crown case to give evidence in relation to the asserted facts, but found it unnecessary to go further because there was no evidence that the accused had made the representations in question. Although not expressly stated, it appears that it would follow that such a statement made by the accused thereby becomes admissible in the Crown case pursuant to s 65.

Subsections (3), (4) and (5) of s 65 are concerned with the application of the hearsay rule where evidence of a previous representation made by an accused person is admitted in other proceedings where that accused person cross-examined, or had a reasonable opportunity to cross-examine, the witness giving that evidence. In such a case, the hearsay rule does not apply: s 65(3). In subsequent proceedings in which evidence of that previous representation is tendered pursuant to s 65(3), and if there is more than one accused person, s 65(4) provides that the evidence cannot be used against the accused person to whom the evidence related if that accused person did not cross-examine, and did not have a reasonable opportunity to cross-examine, the witness who gave it in the earlier proceedings. Section 65(5) provides that the accused person is taken to have had a reasonable opportunity to cross-examine the witness if the accused person was not present when the evidence was given but could have been present at that time, or if present at that time could have cross-examined the witness.

Where the accused had the opportunity to cross-examine a Crown witness at a committal hearing, but the witness does not comply with a subpoena to appear at the trial, s 65(3)(b) may be applicable but the fact that the nature of cross-examination at the committal may be in practice very different to that of cross-examination at the trial is not relevant: Puchalski v R [2007] NSWCCA 220 at [95].

An alternative method of producing such evidence where it was given in previous proceedings before a judge is to be found in s 285 of the Criminal Procedure Act 1986 if the evidence was given in the presence of the accused and he had the opportunity to cross-examine the witness at that time. Section 285 was inserted (originally as s 112) in the Criminal Procedure Act in 1999, and it must be considered as operating according to its own terms notwithstanding the more stringent terms of s 65 of the Evidence Act (Patterson v R [2001] NSWCCA 316 at [40], [48]), where it was held that the Crown did not have to demonstrate that reasonable efforts had been made to secure the attendance of a witness who gave evidence at the committal but who was overseas at the time of the trial.

Section 65(8) permits the accused to adduce evidence of a previous representation if the person giving the evidence saw, heard or otherwise perceived the representation being made where the maker of the representation is unavailable to give evidence. Proof of the reliability of that representation such as is required of the prosecution by s 65(2) is not required of the accused, but s 65(9) permits the prosecution (or another accused) the same freedom to retaliate without proof of the reliability required by s 65(2).

There does not appear to have been any consideration given so far to the relationship between s 65(8) and the requirement now imposed by the amendment to s 65(2)(d) requiring a representation against interest also to be made in circumstances that make it likely that the representation is reliable.

Section 65(8) makes it easier for an accused to lead evidence of a third party confession where the circumstances in which it was made are capable of rationally affecting the issue of the accused’s guilt: R v Hemmelstein [2001] NSWCCA 220 at [17], [41]. Such evidence was generally held to be inadmissible at common law: see Bannon v The Queen (1995) 185 CLR 1, in which the High Court denied any relevance of the reliability of hearsay to its admissibility.

Credit of representor: Where the person who made the representation has not and will not be called as a witness, evidence relevant only to that person’s credibility is admissible where it has substantial probative value: s 108A. The phrase “substantial probative evidence” is discussed under s 64, at [4-0340].

“Retaliatory” evidence: It has been suggested that the “retaliatory” provisions of s 65(9) (so described in MJ Beazley, “Hearsay and Related Evidence — A New Era?” (1995) 18 UNSWLJ 39 at 49) may be wide enough to apply where evidence of a previous representation has been admitted under some provision of the Evidence Act other than s 65(8) (such as s 60): Eastman v R (1997) 76 FCR 9 at 173. There is also an issue (so far unresolved) as to whether “the matter” in relation to which the first previous representation was admitted should be given a liberal or a narrow construction: R v Mankotia (unrep, 27/7/98, NSWSC) at 13; the point did not arise in the appeal against conviction in that case: R v Mankotia (2001) 120 A Crim R 492.

It has been said that s 65(9) appears to require the prosecution to lead its retaliatory hearsay in reply where part of the hearsay evidence was to be led in the accused’s case: R v Mrish (unrep, 4/10/96, NSWSC) at 3. In that case, the Crown prosecutor accepted that all of the hearsay should be led in its case in chief so as to comply with R v Chin (1985) 157 CLR 671 at 676–679, and the parties agreed pursuant to s 190(1) to waive the requirements of s 65(9).

Where the retaliatory evidence is contained in a document, s 65(9) requires the document to be proved by a person who saw the document being produced, notwithstanding that s 65(8)(b) permits the accused to tender the previous representation without evidence from such a witness: R v Mrish, above, at 9–10.

Recorded representations: Where the representation was made in the course of a video-recorded police interview, the making of the representation may be established by playing the video-recording, together with a transcript if necessary to follow what was being said: R v Suteski (No 4) [2002] NSWSC 218 at [30]–[35].

Notice: Notice of an intention to adduce evidence in accordance with s 65(2), (3) and (8) is required: s 67.

The terms “criminal proceeding”, “previous representation” and “representation” are defined in Pt 1 of the Dictionary to the Evidence Act. The second and third of those phrases and the phrase “intended to be asserted” by the maker of the representation are also discussed in Div 1 of this Chapter, at [4-0300].

The hearsay rule does not apply to a representation made by a person where that person has been or is to be called to give evidence if, when the representation was made, the occurrence was “fresh in the memory” of that person.

“fresh in the memory”: In determining this issue, the court may take into account all matters it considers are relevant to the question, including the nature of the event concerned, the age and health of that person, and the period of time between the occurrence of the asserted fact and the making of the representation: s 66(2A). This subsection was inserted as a response to the decision of the High Court in Graham v The Queen (1998) 195 CLR 606, which had restricted the meaning of “fresh” to “recent” or “immediate”, a decision that had being interpreted as very likely requiring the representation to have been made within hours and days and not months: see, for example, Langbein v R (2008) 181 A Crim R 378 at [82]–[84].

It is for the trial judge to determine as a preliminary question of fact whether the fact asserted in the representation was fresh in the memory of the maker, and if need be that question should be determined in a voir dire; the issue will depend on, among other things, the nature of the fact, its significance to the person making the representation, and the interposition of other events that may interfere with a clear recollection: R v Crisologo (1997) 99 A Crim R 178 at 188–189; R v Moussa (No 2) (2002) 134 A Crim R 296 at [12]–[13]. It is not necessary for the trial judge to explain to the jury the basis on which such evidence is admitted, unless there is a limitation on the use to which it is put: R v Lebler [2003] NSWCCA 362 at [1], [103], [106].

Section 66(2A) now makes it clear that, in determining whether the occurrence of the asserted fact was “fresh in the memory” of that person, the court may take into account “all matters that it considers are relevant to the question”. The views of the High Court in Graham v The Queen, above, that “fresh” means “recent” or “immediate”, requiring a temporal relationship between the occurrence of the asserted fact and the time of making the representation that will very likely be measured in hours and days, have been rejected. The new sub-section makes it clear that all matters considered by the court are relevant, of which the temporal relationship remains relevant but by no means any longer determinative of the question. Importantly, the court must now take into account the nature of the event concerned: R v XY (2010) 79 NSWLR 629 at [76]–[79].

Where a person identifies the accused from a photograph, the phrase “fresh in the memory of the person who made the representation” in s 66(2)(b) relates to the remembered circumstance (seeing the person committing the crime) and not to the identification of that person from the photograph: R v Barbaro (2000) 112 A Crim R 551 at [34].

Evidence of a conversation — prior to an attack alleged to have been made by the accused on the victim — between the victim and another person which demonstrated a friendly relationship between the victim and the accused, and which would have militated against the probability that the accused would have been the attacker, was held to have been admissible under s 66(2) and wrongly rejected at the trial: R v Diamond (unrep, 19/6/98, NSWCCA), Ground 1.

Evidence that a complaint was made some time after the offence occurred, led in order to disprove subsequent concoction and not in order to prove its truth, does not breach the hearsay rule: Bellemore v State of Tasmania (2006) 170 A Crim R 1 at [175] et seq (Blow J).

Identification: Where the asserted fact in the previous representation is the identification of the accused, and where the representation was that the maker had recognised the person shown in a security camera photograph as the accused, what must be fresh in the memory of the person who made the representation is his or her continuing familiarity with the features of the person depicted in that photograph at the time of recognition; whereas where the subsequent identification of the accused as the person seen by the witness at the time of the event in question, what must be fresh in the memory of the person who made the representation is the event itself, the formation of the image which is later drawn on at the time of making the representation: R v Gee (2000) 113 A Crim R 376 at [1], [10].

Proofs of evidence: Section 66(3) excludes statements or proofs of evidence from the exception to the hearsay rule, unless the representation made concerns the identity of a person, place or thing. The Australian Law Reform Commission (in ALRC Report 26, vol 1 at par 694) recognised that proofs of evidence are usually compiled by skilled interrogators who are accustomed to converting jumbled and half-coherent answers into passages of connected prose, and not really the witness’s own narrative. Some limitation was seen to be needed as a safeguard.

In each case, the issue under s 66(3) will turn on the purposes for which the representations were made; a formal proof of evidence will be caught, but a representation made during the course of routine investigations, where it is not known whether the maker of the representation is a suspect or a potential witness, will not: R v Esposito (1998) 45 NSWLR 442 at 450. Nor does s 66(3) prevent a witness being examined on a formal proof of evidence, when a ground has been properly laid, pursuant to either ss 38 or 108 of the Evidence Act: R v Esposito at 450.

Exculpatory evidence: The Evidence Act has effected a substantial change to the common law (or to a practice long accepted in New South Wales and elsewhere prior to the statute) whereby evidence of what was said by an accused by way of denial when first questioned by the police was admissible in order to show his reaction to the allegations against him: R v Coats [1932] NZLR 401 at 407, Adams J; Woon v The Queen (1964) 109 CLR 529 at 537–538; Ratten v R [1972] AC 378 at 387, 389, 391; R v Pearce (1979) 69 Cr App R 365 at 369–370 (even when the evidential value of such statements is “small”); R v R E Astill (unrep, 17/7/92, NSWCCA) at 8–9; R v S L Astill (1992) 63 A Crim R 148 at 156; R v Reeves (1992) 29 NSWLR 109 at 114–115; R v Keevers (unrep, 26/7/94, NSWCCA) at 4; R v Familic (1994) 75 A Crim R 229 at 235.

In R v Rymer (2005) 156 A Crim R 84, it was accepted (at [32]) that such was long standing practice in this State both before and (to a significant extent) since the Evidence Act, but it was held (at [52]–[53]) that s 59 of the Evidence Act had subordinated the common law to the terms of the statute and that such exculpatory evidence was admissible only pursuant to s 60 after it had been tendered for a non-hearsay purpose, although the Court of Criminal Appeal did state (at [59]–[61]) that, absent some particular reason for refraining from doing so, such evidence of the response by the accused to confrontation by denial should continue to be put before the court by the prosecution. The accused’s denial is admissible as an exception to the hearsay rule as demonstrating his credibility by the circumstances of his denial, and thus becomes evidence of its truth pursuant to s 60 (at [64]). The decision is not authority enabling the prosecution to call evidence in its case challenging the general credibility of the accused: R v Rymer at [62]; R v Sood (Ruling No 3) [2006] NSWSC 762 at [80]–[84].

Statements made by a suspect during an ERISP interview do not fall within s 66(3) (“representation made for the purpose of indicating the evidence that the person who made it would be able to give”): Stevens v McCallum [2006] ACTCA 13 at [161].

Representations by vulnerable persons: Evidence from vulnerable persons (including children and complainants in sexual assault case) is now governed by the Criminal Procedure Act 1986, Ch 6 (Evidentiary matters), Pt 6 (Giving of evidence by vulnerable persons), Div 3 (Giving evidence of out-of-court representations) which inter alia permits evidence of previous representations made by such persons when interviewed by investigating officials to be given in the form of a recording of that interview. Section 306V provides that neither the hearsay rule nor the opinion rule prevents such evidence being given in that way. Division 4 permits such evidence to be given by closed-circuit television. The new legislation commenced on 12 October 2007, and applies to proceedings commenced on or after that date. The proceedings for trial on indictment commence on the filing or presentation of a valid indictment (R v Janceski (2005) 64 NSWLR 10 at [219]); the practice as to when such an indictment (rather than a draft indictment) is filed or presented differs: R v Howard (1992) 29 NSWLR 242 at 247. The trial itself commences with the presentation of the indictment and arraignment of the accused before the jury panel: R v Nicolaidis (1994) 33 NSWLR 364 at 367; DPP v B (1998) 194 CLR 566 at [17], [32]; The Queen v Gee (2003) 212 CLR 230 at [43]–[44]; Gilham v R (2007) 73 NSWLR 308 at [174]–[176], [237]. See also s 130 of the Criminal Procedure Act: Cornwell v The Queen (2007) 231 CLR 260 at [87]–[88]; R v JS (2007) 175 A Crim R 108 at [49].

This was previously s 72, except that this section now refers to a previous representation made by a person, rather than merely a representation. Section 72 had not been in the draft statute originally proposed by the ALRC, and the only amendment recommended by it was to bring the provision within Pt 3.2 Div 2 so that it is necessarily restricted to first-hand hearsay: ALRC Report 102, pars 8.171–174.

The common law provided that statements made by a person as to his health, intentions, state of mind etc are admissible to prove that fact even though self-serving and whether or not contemporaneously expressed: R v Beserick (1993) 30 NSWLR 510 at 521; Gross v Weston (2007) 69 NSWLR 279 at [32].

Otherwise than in relation to its restriction to first-hand hearsay, s 66A (as did the former s 72) appears otherwise to reflect the common law, although individual members of the High Court have, inconclusively, expressed doubts as to the extent to which a person’s intention to carry out a particular act can establish that the fact that the intention was in fact carried out: Kamleh v The Queen (2005) 213 ALR 97 at [27]–[28], [33], [39]; cf [22]–[23]. Kamleh has been referred to in subsequent cases, but not any further in the context of the Evidence Act. See, for example R v Efandis (No 2) [2008] VSC 274 at [10]. ALRC Report 102, after referring to this point (at 8.165–166) as being “unclear”, states (at 8.167) that the Evidence Act appeared to be operating satisfactorily in this respect and that there had been no suggestion that the provision should be amended. It pointed out (at 8.169) that the former s 72 was a statutory counterpart to the common law res gestae exception under which evidence within the exception is admissible as evidence of its truth.

In R v Clark (2001) 123 A Crim R 506 at [147], Heydon JA (at [158]) commented that the former s 72 was “significantly wider than the equivalent common law rules” that had been stated in the older cases such as Wilson v The Queen (1970) 123 CLR 334 and Ratten v R [1972] AC 378, and he drew attention to Walton v The Queen (1989) 166 CLR 283. The comment would appear to apply equally to the new s 66A. Although referring to R v Clark in relation to a different issue, ALRC Report 102 is silent in relation to this comment.

Evidence of an intention on the part of the victim in a murder case may be called by the Crown to establish a motive for killing the deceased (R v Serratore (1999) 48 NSWLR 101 at [19]); or of an intention on the part of the accused to murder the victim: R v Serratore [2001] NSWCCA 123 (an appeal from the retrial) at [33]–[41]. But the intention of an accused must be relevant to the time the criminal act is alleged to have been committed by him: R v Hannes [2000] NSWCCA 503 at [480] (this statement does not appear to have been affected by the amendments directed to that decision on a different issue — as to whether the representor intended to assert a particular fact: see [4-0300], above).

Evidence given by affidavit of the terms of a conversation was admissible pursuant to the former s 72 to show that one of the participants in the conversation held a belief manifested by the terms of that conversation: McGregor v Nichol [2003] NSWSC 332 at [31]. That decision has been described as “clearly correct”: Mid-City Skin Cancer & Laser Centre Pty Ltd v Zahedi-Anarak [2006] NSWSC 615 at [8]–[9].

Evidence of a state of mind may be elicited by the defence to establish a reason for the possession of otherwise incriminating property (R v Hemmelstein [2001] NSWCCA 220 at [8], [14]–[15], [27]); or as indicating a willingness to have sexual intercourse with the accused in a sexual assault case: R v Van Dyk [2000] NSWCCA 67 at [31], [52]–[57].

Expressions of concern by the deceased that the accused may obtain a key to her residence would be admissible to rebut any possible innocent explanation for evidence that the accused had been inside her residence: R v Hillier (2004) 154 ACTR 46 at [27].

If the person alleged to have made the previous representation denies when called to give evidence that he made it, evidence is admissible from another person that the first person did make it, as he “could give evidence of it”: R v Nguyen (2008) 184 A Crim R 207 at [21].

Whether protestations of innocence when confronted by allegations of illegally importing cigarettes would be admissible as contemporaneous statements of state of mind has been queried: CEO of Customs v Pham [2006] NSWSC 285 at [35]–[36]. It is suggested that the evidence would strictly be admissible, but usually of only minimal weight.

In a trademark and copyright infringement suit between two foreign language newspapers, in which it was alleged that one newspaper used four Chinese characters as a trademark in a style that was deceptively similar to the way in which the other newspaper used the same characters, evidence was led from newsagents that, shortly after the defendant changed the style of its trademark, customers picked up one newspaper and then replaced it by the other newspaper after conversations with the newsagent, in order to demonstrate that the customers were confused by the deceptive similarity of the characters adopted by the defendant to those adopted by the plaintiff: Southern Cross Refrigerating Co v Toowoomba Foundry Pty Ltd (1954) 91 CLR 592 at 595, 597–598; Melbourne Chinese Press Pty Ltd v Australian Chinese Newspapers Pty Ltd (2004) 63 IPR 38 at [51]. It was tentatively held (at [50]) that evidence of what was said to the newsagents fell within the definition of hearsay in s 59 of the Evidence Act, but was subject to the specific exclusion from the hearsay rule by the former s 72. The evidence of the newsagents’ observations of their customers’ confusion was direct and not hearsay evidence of that confusion (at [50]). Finally, it was held (at [54]) that the intention to deceive should be presumed to be likely to deceive or confuse in accordance with Australian Woollen Mills Ltd v F S Walton & Co Ltd (1937) 58 CLR 641 at 657:

This passage was quoted with approval as relevant to the Evidence Act by the Full Court of the Federal Court in Melbourne Chinese Press Pty Ltd v Australian Chinese Newspapers Pty Ltd at [49].

Evidence admissible under s 66A may be subject to a limitation on its effect pursuant to ss 135–137. Examples of such an exclusion are to be found in R v Lock (1997) 91 A Crim R 356 at 358ff (discussed in Anderson, Williams and Clegg, in The New Law of Evidence (2nd edn, 2009), at 66A.3); and R v Burrell [2001] NSWSC 120 (Sully J) at [111]–[119], discussed in Anderson, Williams and Clegg, (2nd edn, 2009), at 251 (n 384).

Note that s 61(2) provides that the requirement of s 61(1), that evidence of the making of the relevant representation is admissible only if the person making that representation was competent to give evidence about the fact represented, does not apply to the exception now provided by s 66A.

Sections 63(2) (see [4-0330]), 64(2) (see [4-0340]) and 65(2), (3) and (8) (see [4-0350]) do not apply to evidence adduced by a party unless that party has given reasonable notice in writing to each other party of the party’s intention to adduce the evidence. The court has power to permit the evidence to be given despite the party’s failure to give notice, subject to such conditions (if any) as the court thinks fit: ss 67(4) and 67(5).

Lack of notice is unimportant where the other party is unlikely to have found the missing witness either: Quintano v BW Rose Pty Ltd (2008) 186 A Crim R 448 at [7].

Both the Commonwealth Evidence Regulations 1995 and the Evidence Regulation 2020 make provision (by cl 4 “Notice of previous representation”) as to the content of the notice required. The notice must identify the substance of the particular representation and the relevant part of any document in which it is to be found: ACCC v CC (NSW) Pty Ltd [1998] ATPR ¶41-650 at 10. It must also notify the substance of all other representations made by the person who made that previous representation, so far as they are known to the notifying party; for that reason, knowledge of the contents of a statement which is later tendered without notice may not be a sufficient basis for dispensing with the notice requirement: Trewin v Felton [2007] NSWSC 919 at [2].

Section 67 requires the notice to be given at least 21 days prior to the occasion upon which the evidence to be used. UCPR r 31.5 nominates a period of no later than 21 days before the callover to fix dates for hearing or (if no date is fixed for determining the date for hearing) no later than 21 days before the date on which the court in fact determines the date for hearing. This rule has been rigorously applied: Tobin v Ezekiel [2009] NSWSC 1209 at [5]–[6].

The intention of this section is to provide a procedure whereby the obligation to call witnesses at the trial may be determined before the trial: ALRC Report 26, vol 1, par 695.

Other exceptions to the hearsay rule — Pt 3.2 Div 3 (ss 69–75)

The word “document” is defined in Pt 1 of the Dictionary to the Evidence Act. The “references to documents” and “references to businesses” are dealt with in Pt 2 of the Dictionary. It was thought that the fact that statements in business records are to be used in the business provided a strong incentive for accuracy: ALRC Report 26, vol 1, par 703.

Intention of statute: The business records provisions of the Evidence Act introduced fundamental changes to the previous business records provisions of Pt IIC of the Evidence Act 1898: Schipp v Cameron (No 3) (unrep, 9/10/97, NSWSC) at 2. Both the inclusive and the exclusionary provisions of s 69 of the Evidence Act 1995 should be regarded as being of wide import and construed accordingly (Lewis v Nortex Pty Ltd (in liq) [2002] NSWSC 1083 at [4](3)); as should the term “business”: Valoutin Pty Ltd and Harpur v Furst, Tremback and Official Trustee in Bankruptcy [1998] FCA 339 at 129; Seeley International Pty Ltd v Newtronics Pty Ltd [2001] FCA 1862 at [293].

The purpose of the current provisions is to prevent the introduction through this exception to the hearsay rule of hearsay material prepared in an atmosphere or context which may cause it to be self-serving: Vitali v Stachnik [2001] NSWSC 303 at [12]; ACCC v Advanced Medical Institute Pty Ltd (No 2) (2005) 147 FCR 235 at [27]; Mid-City Skin Cancer and Laser Centre Pty Ltd v Zahedi-Anarak [2006] NSWSC 615 at [9]; Street v Luna Park Sydney Pty Ltd [2007] NSWSC 695 at [4].

See also Hillig v Battaglia [2018] NSWCA 67. Also Averkin v Insurance Australia (2016) 92 NSWLR 68.

“business records”: Business records are the documents or other means of holding information by which the activities of the business are recorded: Rixon v Star City Pty Ltd (2001) 53 NSWLR 98 at [47], citing Compafina Bank v ANZ Banking Group Ltd [1982] 1 NSWLR 409 at 412; Atra v Farmers and Graziers Co-op Co Ltd (1986) 5 NSWLR 281 at 288; Roach v Page (No 15) [2003] NSWSC 939 at [5]; Silver v Dome Resources NL [2005] NSWSC 348 at [7]. However, such records are restricted to those kept in the ordinary course of business, and they do not include the products or marketing documents of that business — even where such documents purport to record activities of the business: Roach v Page (No 27) [2003] NSWSC 1046 at [9]; ASIC v Rich [2005] NSWSC 417 at [180]–[182], [188]; Hansen Beverage Co v Bickfords (Australia) Pty Ltd (2008) 75 IPR 505 at [133]. An expert audit report on a company’s financial position can fall within that description, and the lack of opportunity to test the contents of the report is not automatically fatal to its admission as a business record: Forbes Engineering (Asia) Pte Ltd v Forbes (No 4) [2009] FCA 675 at [103]–[104].

The activities of a Royal Commission constitute a business as defined in cl 1(1)(d) of Pt 2 of the Dictionary to the Evidence Act: Thomas v NSW [2007] NSWSC 160 at [3]; and statements made in the course of the Royal Commission are not made in the course of a proceeding in a court: at [15].

Minutes prepared by an officer of the Department of Foreign Affairs and Trade, present at a meeting between the Minister and the Chairman of AWB Ltd, recording statements made by the Chairman to the Minister are admissible pursuant to s 69 as business records made by a person who had personal knowledge of what the Chairman had said: AWB Ltd v Cole (No 5) (2006) 155 FCR 30 at [82].

A solicitor’s bill of costs, and correspondence with the client, are business records: Nikolaidis v Legal Services Commissioner [2007] NSWCA 130 at [59]; the certificates and reasons for determination by the Costs Review Panel are also business records, but are excluded because they are prepared for, or obtained in contemplation of or in connection with, a legal proceeding: at [60].

Documents prepared by the plaintiff, as the manager of the defendant’s business, at the end of each business day relating to what had been said to him by the defendant during that day for the future management of the business are the defendant’s business records, and the representations made therein are the defendant’s representations: Gordon v Ross [2006] NSWCA 157 at [37]–[38].

A report commissioned by the respondent to address a clean-up notice from the Council at a time when litigation was not likely or reasonably probable was found to be a business record of the respondent within s 69: Di Liristi v Matautia Developments Pty Ltd [2021] NSWCA 328 at [55], [60]. The file copy of the report held by the commissioned company and the file copies of the laboratory certificates produced by a third party were also business records.

A valuation is an opinion expressed by an expert, and becomes both an asserted fact and a business record within the meaning of s 69: Ringrow Pty Ltd v BP Australia Ltd (2003) 130 FCR 569 at [13]–[18]; Investmentsource v Knox St Apartments [2007] NSWSC 1128 at [19]–[21]; Street v Luna Park Sydney Pty Ltd [2007] NSWSC 688 at [5].

Similarly, an expert auditor’s report on the financial position of a company can fall within the terms of s 69 as “part of the records belonging to or kept by … [an] organisation in the course of, or for the purposes of, a business”: Forbes Engineering (Asia) Pte Ltd v Forbes (No 4) [2009] FCA 675 at [103].

A document may be a business record even if it is a draft, or otherwise appears to be a document “along the way” to completion of a final document: Timms v Commonwealth Bank of Australia [2003] NSWSC 576 at [17]; NT Power Generation Pty Ltd v Power and Water Authority [1999] FCA 1549 at [9]; ASIC v Rich [2005] NSWSC 417 at [188]. A “one-off” record of a meeting may be a business record; it need not be part of systemic record-keeping involving more than a single document: Feltafield Pty Ltd v Heidelberg Graphic Equipment (1995) 56 FCR 481 at 483; ASIC v Rich at [190].

A faxed copy of a document may be a business record of the person who received the facsimile even though the original document faxed may not be a business record of the person who sent the fax: Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2008] NSWSC 654 at [36]. A rough diagram made by a police officer based on what he had been told by two witnesses, and which denied the basic allegation by the plaintiff that another vehicle was involved in his accident, is a business record of what is recorded in accordance with s 69 and, as such, is evidence of the facts recorded: Tran v Nominal Defendant (2011) 58 MVR 462 at [177]–[178].

In Panayi v DC of T [2017] NSWCA 93, the appellant sought review of penalties imposed on him as a director of a company. The evidence against him had included an ASIC report providing reasons for disqualifying him from managing companies for a period. The court held that the ASIC document plainly fell within the definition of a business record. Thus it was, in the circumstances of the case, properly admitted and capable of rebutting the appellant’s assertions that he was not responsible for the unremitted tax at the core of the proceedings against him. The ASIC report did not fall within the language of s 69(3). This subsection “carves out” certain representations from the exception to the hearsay rule.

In Averkin v Insurance Australia Ltd , see above, the court examined s 69(3)(b) which makes the section inapplicable “if the representation … was made in connection with an investigation relating or leading to a criminal proceeding”. In a claim for theft and loss of a motor vehicle, the insurance company sought to tender a bundle of documents including a police record and pages from a police notebook. There was no doubt that the documents formed part of a business record. The majority held that the initial part of the police report (dealing with the finding and location of a burnt vehicle at some distance from the plaintiff’s home) was both relevant and admissible. The remainder of the material was not. The distinction arose because s 69(3)(b), while it does not require the litigation to be in existence when the representation is made (indeed it may never eventuate), does require that the investigation be extant at the time the representation is made. “Investigation” is not defined, and will turn on the facts of the case. The court held that an investigation had not commenced merely upon the police recording a report of a burning vehicle in a particular location. When the vehicle was examined, an investigation had commenced. See also Hillig v Battaglia [2018] NSWCA 67; Di Liristi v Matautia Developments Pty Ltd, above, at [55].

Leeming JA’s decision in Capital Securities XV Pty Ltd v Calleja [2018] NSWCA 26, is a valuable illustration of the approach to be taken in determining whether representations in business records tendered at a hearing may be accepted as an exception to the hearsay rule. In this case, the appellant sought possession of a property at Heatherbrae owned by the respondents. The claim was based in default under a guarantee arising in connection with a mortgage. The appellant’s claim was dismissed by the primary judge. An important issue in the trial related to copies of Baycorp “file notes” produced on subpoena and subsequently included in the Court Book. Ultimately, these documents were rejected by the primary judge on the basis that they were not accurate business records and that they contained errors or misleading statements. In the event, this aspect of her decision was incorrect. She also rejected them under s 135 Evidence Act as being overly prejudicial.

The Court of Appeal overruled each of these findings and upheld the appeal. Leeming JA (with whom Basten and Gleeson JJA agreed) made these points:

“previous representation”: The phrase “previous representation” is discussed under s 62 at [4-0320]. The fact that the person who made the representation in a business record is not an employee of the business does not necessarily lead to the conclusion that it was not made for the purposes of the business: Ringrow Pty Ltd v BP Australia Ltd (2003) 130 FCR 569 at [12].

“personal knowledge”: The phrase “personal knowledge of a fact” is defined in s 69(5) in the same terms as the phrase “personal knowledge of an asserted fact” is defined in s 62(2) at [4-0320].

It is enough that the court is able to conclude, on the balance of probabilities, that the representation was made by, or on the basis of information supplied by, someone (not necessarily identified) falling within one of the alternative descriptions in s 69(2): ASIC v Rich, above, at [197]; and it would greatly diminish the utility of s 69 if such a requirement existed: Guest v FCT 2007 ATC 4265 at [25]–[29].

The court may draw inferences from the form of the document and from the nature of the information contained in it as to whether the person who supplied the information to the person making the representation “might reasonably be supposed to have had personal knowledge of the asserted fact” (see s 69(2)(a)): Rickard Constructions v Rickard Hails Moretti [2004] NSWSC 984 at [19] where the finding was based on the precision of the information recorded in the document: Wood v Inglis [2009] NSWSC 313 at [5].

Evidence has been rejected on the basis that personal knowledge on the part of the person making the representation has not been established where the documents were unsigned and, although some sources of information are referred to, it is not possible to attribute any particular source to any particular statement, let alone come to any view as to whether the source had the requisite personal knowledge of the particular fact: Watson v AWB Ltd (No 4) [2009] FCA 1175 at [11].

Opinion: A previous representation may include an expression of opinion — such as an opinion by a valuer as to the value of property: Ringrow Pty Ltd v BP Australia Ltd, above, at [13]–[21]. The valuer would have personal knowledge of the asserted fact because the asserted fact consists of the opinion formed and expressed by the valuer: Ringrow Pty Ltd v BP Australia Ltd at [19]. That decision has been accepted in a number of cases: Young v Coupe [2004] NSWSC 999 at [12]–[13]; New South Wales v Mannall [2005] NSWCA 367 at [145]; Covington-Thomas v Commonwealth [2007] NSWSC 779 at [496]; Investmentsource v Knox Street Apartments [2007] NSWSC 1128 at [19]–[21]. Ringrow has been criticised by Odgers, Uniform Evidence Law at [1.3.2860], but the subsequent Report of the three Law Reform Commissions (ALRC Report 102; NSWLRC Report 112; VLRC Final Report, at 8.144) recommended against an amendment of s 69 to overcome the Ringrow decision, and no such amendment was made by the Evidence Amendment Act 2007.

Reliability: There is no requirement that the representation be recorded contemporaneously with the facts recorded; rather, the section assumes that the status of the document as a business record will give sufficient assurance as to its reliability for it to be admissible. The weight of the business record may nevertheless need to be carefully assessed if it is made sometime after the representation was made: Gordon v Ross [2006] NSWCA 157 at [37] (Basten JA, with whom Hodgson and Bryson JJA agreed on this issue).

“in contemplation of”: A representation prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with legal proceedings or in connection with an investigation relating to or leading to a criminal proceeding, is excluded from the business records exception by s 69(3). This provision does not exclude statements made or kept in documents as part of a regular system merely because they may be of utility if legal proceedings were to occur: Atra v Farmers and Graziers Co-op Co Ltd (1986) 5 NSWLR 281 at 290; Creighton v Barnes (unrep, 18/9/95, NSWSC) at 2–3. The provision includes statements made in contemplation of or in connection with proceedings other than the proceedings in which they are tendered, and no question of dominant or substantial purpose arises: Vitali v Stachnik [2001] NSWSC 303 at [17]; Street v Luna Park Sydney Pty Ltd [2007] NSWSC 695 at [5]–[12].

The words “in contemplation of” add something to the words “for the purpose of”; they express more than a temporal connection, and suggest that the prospect of legal proceedings must at least be the occasion for the representation being made: S and Y Investments (No 2) Pty Ltd v Commercial Union Assurance Co of Australia Ltd (1986) 21 A Crim R 204 at 152. It is sufficient that the maker of the representation had the proceedings “in mind” when making the representation: Atra v Farmers and Graziers Co-op Co Ltd, above, at 290; or if the possibility of a legal proceeding played “some part in the decision to prepare it”: Timms v Commonwealth Bank of Australia [2003] NSWSC 576 at [15]; Rickard Constructions v Rickard Hails Moretti [2004] NSWSC 984 at [25]. The expression “in connection with” is a notoriously wide one: Vitali v Stachnik, above, at [17]. See also Street v Luna Park Sydney Pty Ltd, above, at [9].

This provision is expressed in words of wide meaning: R v Rondo (2001) 126 A Crim R 562 at [96]; Lewis v Nortex Pty Ltd (in liq) [2002] NSWSC 1083 at [4](3). The person whose contemplation is relevant is the person who prepared or obtained the representation — that is, all who might cause a representation to be made in the form in which it takes: ACCC v Advanced Medical Institute Pty Ltd (No 2) (2005) 147 FCR 235 at [27].

The legal proceedings in contemplation may be any such proceedings; it is unnecessary that the precise proceedings in which the evidence is tendered were contemplated: Lewis v Nortex Pty Ltd (in liq), above, at [4](4). This is because any proceedings in contemplation may lead even persons of good intent to make purely self-serving statements: Lewis v Nortex Pty Ltd (in liq) at [4](6). Nevertheless, the mere possibility or chance of proceedings is insufficient; legal proceedings must be likely or reasonably probable: Creighton v Barnes, above, at 2; Waterwell Shipping Inc v HIH Casualty and General Insurance Ltd (unrep, 8/9/97, NSWSC) at 5–6; Lewis v Nortex Pty Ltd (in liq) at [9]; ACCC v Advanced Medical Institute Pty Ltd (No 2), above, at [40]–[43]; Nikolaidis v Legal Services Commissioner [2007] NSWCA 130 at [61] (although a dissenting judgment, this was not the issue on which the disagreement was based).

It has been held that the proceedings contemplated must mean proceedings to which the party otherwise entitled to the document is a party: Sellers Fabrics Pty Ltd v Hapag-Lloyd, (unrep, 15/10/98, NSWSC) at 2. Rolfe J conceded that, by reference to the generality of the definition of “Australian or overseas proceeding”, it was open to argument that the reference was to any such proceeding, but he said that it seemed that “the only sensible meaning that can be attributed is one to which the owner of the business record is a party”. Odgers, Uniform Evidence Law, at [1.3.2880], has criticised the decision of Rolfe J in Sellers Fabrics Pty Ltd v Hapag-Lloyd as “surprising”.

In Vitali v Stachnik [2001] NSWSC 303 at [13]–[14], Barrett J found it unnecessary to determine whether the Sellers Fabrics decision was a “surprising” one because the representation in that case was made by a company of which the party to the proceedings was the sole director and shareholder, and thus its alter ego. In Rickard Constructions v Rickard Hails Moretti [2004] NSWSC 984 at [35], McDougall J found it unnecessary to determine whether the decision of Rolfe J was correct because he had already found (at [32]) that the document was prepared to enable the recipient to consider its prospects of recovery in the event it was held liable in other litigation. In Kang v Kwan [2002] NSWSC 1187, Santow J (at [177]) gave consideration only to the contemplation of the proceedings before him (which he held had been a mere possibility at the relevant time) and disregarded other proceedings in the District Court then in contemplation, having stated the purpose of the exclusion described by Barrett J in Vitali v Stachnik, above. There does not appear to be any reference to this issue in the Report of the three Law Reform Commissions, and certainly no amendment has been made to s 69.

A document prepared in contemplation of a coronial inquiry has been held to fall within the terms of s 69, a coroner being a “person … authorised by an Australian law … to hear, receive and examine evidence” referred to in the Dictionary definition of “Australian court”: BestCare Foods Ltd v Origin Energy LPG Ltd [2010] NSWSC 1304 at [12].

“in connection with”: The phrase is of considerable width, and is satisfied by a link or association or a relationship, summed up in the phrase “having to do with”: Elkateb v Lawindi (1997) 42 NSWLR 396 at 402; Thomas v NSW (2008) 74 NSWLR 34 at [19]. They are words of wide import, and their meaning is to be gained from their context: R v Orcher (1999) 48 NSWLR 273 at [30]–[32].

“Negative hearsay”: Where a system of business records has been followed of making and keeping a record of all events of a particular kind, s 69(4) permits proof that such an act did not occur if no record of it has been kept in that system. This has been described as “negative hearsay” in J Heydon, Cross on Evidence at [35545]. In Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542, one issue was whether an orthopaedic surgeon, having recognised a physical indication of the probability that the plaintiff’s spine was abnormal and that he should therefore obtain the advice of a neurosurgeon colleague before applying traction to her spine, went ahead and applied that traction without obtaining that advice (which would have been not to do so), causing irreversible injury to the plaintiff. The defendant hospital called no evidence. It was held that, on the evidence of the hospital records (which had been wrongly rejected at the trial), the neurosurgeon was under a duty to record any advice he gave in the hospital records. There was no record that he had done so. A new trial was ordered: see Albrighton, above, at 555 ([31]–[32]), 556 [39], 557 [44] (the paragraph numbers have been added to the NSWLR report in CaseBase). See also Baiada v Waste Recycling & Processing Service of NSW [1999] NSWCA 139 at [57], in which reliance was placed on the principle that, if a duty existed to record matters when they occur, and if no record of such matters is found, such matters did not occur.

General: As the purpose of the exclusion in s 69(3) is to avoid purely self-serving hearsay statements in business records to establish the truth of what they state (Lewis v Nortex Pty Ltd (in liq) [2002] NSWSC 1083 at [4](6)), it is suggested that the inquiry should be as to the extent of the interest of the maker of the representation in the contemplated proceedings at the relevant time, whether as a party or otherwise.

The definition of “document” identified in the business records section at [4-0390] is also relevant to this section.

The party tendering this evidence need establish only that it “may reasonably be supposed” that the circumstances in which the tag etc was attached or placed fall within the terms of the section — a phrase used in s 62 and now added to s 59. Section 182 of the Commonwealth Evidence Act 1995 extends the operation of s 70 in relation to documents which are Commonwealth records (as defined in the Dictionary), and it defines “tags or objects attached to objects” as including “writing placed on objects”. (There is no s 182 in the NSW Evidence Act.) Section 183 permits reasonable inferences to be drawn from the document or thing and from other matters from which inferences may properly be drawn as to the application of this provision.

At common law, secondary evidence of labels affixed to objects was admissible to identify the object (Commissioner for Railways (NSW) v Young (1962) 106 CLR 535 at 546, 548–549, 552–553, 556–557); but both the label itself and secondary evidence of its contents remained only hearsay evidence of the facts stated in the label. There were, however, many common law cases where inferences as to the truth of labels could be drawn; for example, as circumstantial evidence of the contents of the container: R v Leroy [1984] 2 NSWLR 441 at 445, 447; Rybicki v Lynch [2006] SASC 34 at [31]–[33]. Such documents now become evidence of the representations contained in them pursuant to s 70. The section enables a person carrying out tests to rely on the labels for identification of the material tested: Sharwood v R [2006] NSWCCA 157 at [33].

It has been suggested that provisions such as s 70 refer to material that has an inherent likelihood of its integrity and accuracy: Australian Petroleum Pty Ltd v Parnell Transport Industries Pty Ltd (1998) 88 FCR 537 at 481.

The tag or label must be attached to or written on the object to be identified before the exception applies; signs in the near vicinity of objects on display containing representations do not fall within that exception: Daniel v Western Australia [2000] FCA 413 at [25]–[26].

The Commonwealth Act, by s 70(2), excludes this exception in relation to customs and excise prosecutions conducted in all Australian courts.

The definition of “document” identified in the business records section, above at [4-0390], is also relevant to this section.

There are a number of statutory presumptions in aid of the application of this section. Where a document purports to be a record of a telex, lettergram or telegram, ss 161–162 make such presumptions (unless the evidence is sufficient to raise doubt about the presumptions is raised) except where the proceedings relate to certain contracts. Section 163 of the Commonwealth Evidence Act 1995 presumes (unless the evidence is sufficient to raise doubt about the presumption) a letter from a Commonwealth agency addressed to a person at a specified address to have been sent by prepaid post to that address on the fifth business day after the date on which the letter purports to have been prepared. (There is no s 163 in the NSW Evidence Act. Section 29 of the Acts Interpretation Act 1901 (Cth) may provide some assistance.)

In Zebicon Pty Ltd v Remo Constructions Pty Ltd [2008] NSWSC 1408 at [11]–[28] accepted that a fax transmission report that a six page document had been sent by one party’s fax machine to the other party’s fax number and that the “result” shown by the machine was “OK”, coupled with the absence of any suggestion that someone had faxed another six page document at that time, as establishing that the particular six page document in question had been sent to the other party. He also accepted the evidence of the other party that its fax was malfunctioning and from time to time did not print out faxes sent to it, but he nevertheless held that the document had been communicated to it, relying on the presumption in s 147 of the Evidence Act that, unless evidence sufficient to raise doubt about the presumption is adduced, the other party’s fax machine is presumed to have produced the document.

Section 183 permits reasonable inferences to be drawn from the document or thing and from other matters from which inferences may properly be drawn as to the application of this provision.

Note:

The former s 72 (Exception: contemporaneous statements about a person’s health etc) is now s 66A. See [4-0365].

The experience gained in litigation under the Native Title Act 1993 demonstrated serious problems in the proof of Aboriginal and Torres Strait Islander traditional laws and customs in accordance with the Evidence Act, in particular with the way in which that statute dealt with hearsay evidence, largely because the basis of an Aboriginal connection with land is usually based on oral traditions and history which do not easily accord with either the common law or the Evidence Act: ALRC Report 102, Ch 19. The Explanatory Memorandum accompanying the Bill for the Federal Evidence Act accepted (at [96]) that it was not appropriate for the legal system to treat orally transmitted evidence of traditional law and customs as prima facie inadmissible when this has been the very form by which such laws and customs are maintained under Indigenous traditions.

The new s 72 provides that the hearsay rule does not apply to evidence of a representation about the existence or non-existence, or the content, of the traditional laws and customs of an Aboriginal or Torres Strait Islander group. A similar provision is made excepting such evidence from the opinion rule: s 78A. See [4-0625].

The Dictionary to the Evidence Act already provided that traditional laws and customs of an Aboriginal or Torres Strait Islander group (including a kinship group) includes any of the traditions, customary laws, customs, observances, practices, knowledge and beliefs of the group.

This provision widens the range of matters which may be proved by reputation to some extent beyond the common law relating to pedigree, but the family history of real estate transactions represented in a hearsay statement does not fall within the exception: Day v Couch [2000] NSWSC 230 at [69]. Family history does not mean family gossip; it encompasses date and place of birth, date and place of marriage, date and place of cohabitation over the last century and place of work of ancestors of the maker of the representation, and it is not to be understood as making admissible broad genealogical material: Ceedive Pty Ltd v May [2004] NSWSC 33 at [9]. The information may be based on a conversation of only one blood relative: Ceedive Pty Ltd v May at [10]. Odgers, at [1.3.3500], has suggested that the statement in [9] of Ceedive Pty Ltd v May may be an unduly narrow approach to the provision.

An illustration of the use to which s 73 may be put is referred to in Yarmirr v Northern Territory of Australia (1998) 82 FCR 533 at [21], as establishing traditional laws and customs practised more than 150 years earlier and genealogical connections to ancestors living at or prior to European settlement in the necessary absence of official records. Reliance was also placed on s 74, below (the new s 72 would appear now to have covered that particular area).

Section 73 would permit hearsay from a witness’s mother as to the birth date of that witness. In Marsden v Amalgamated Television Services Pty Ltd [2000] NSWSC 55 at [9]–[10], a witness was permitted to give evidence of what was said to him by another person as to that other person’s age (matter of critical importance in the proceedings), on the basis that common sense must intrude on the construction of the Evidence Act in order to avoid the artificiality of the objection taken to it. It is suggested that this decision be treated with caution.

This exception is wider than permitted by the common law. The textbook authors are apparently agreed that it avoids the common law restrictions to the admission of representations made by persons since deceased and persons with special “competence” or “competent knowledge” and representations made prior to the dispute arising.

The evidence allowed by s 74 has been described as being, “in the main”, inherently reliable: Adam v The Queen (2001) 207 CLR 96 at [68].

Section 74 permits anthropological evidence as to the “reputation” of the existence, nature and extent of Aboriginal custom by those subject to Aboriginal custom and by those who have studied it over a long period: Yarmirr v Northern Territory of Australia, above; De Rose v South Australia [2002] FCA 1342 at [265]–[270]; Gumana v Northern Territory of Australia (2005) 141 FCR 457 at [157]. Evidence of Aboriginal custom and tradition is not a special exception to the usual rules of evidence: Gumana, above, at [157]–[160]. These issues did not arise in the unsuccessful appeal: Gumana v Northern Territory of Australia (2007) 158 FCR 349 (the new s 72 would appear now to have covered that particular area).

Interlocutory proceedings are to be distinguished from proceedings which, subject only to appeal, finally dispose of an action or an existing dispute between the parties: Hall v Nominal Defendant (1966) 117 CLR 423 at 444. It is the legal rather than the practical or real effect of the order sought in the proceedings in question: Sanofi v Parke Davis Pty Ltd (No 1) (1982) 149 CLR 147 at 152. If, for example, the orders sought are to have only an interim effect, the proceedings will be considered to be interlocutory: Director of Public Prosecutions (ACT) v Hiep (1998) 86 FCR 33 at 124–125.

An application brought pursuant to UCPR r 5.2 against a newspaper to reveal its sources, usually as a precursor to proceedings for defamation or similar relief, is not an interlocutory proceeding pursuant to s 75: Liu v The Age Company Ltd [2010] NSWSC 1176 at [46].

Where proceedings are brought pursuant to s 39B of the Judiciary Act 1903 (Cth) to enforce a common law right or immunity based on legal professional privilege, and where they are to resolve the dispute or controversy between the parties on that issue, they are final and not interlocutory in nature: Kennedy v Wallace [2004] FCA 332 at [112].

Section 9 of the Evidence Act (providing that that Act does not affect the operation of a court’s power to dispense with the operation of a rule of evidence or procedure in an interlocutory proceeding) does not create an independent statutory basis for dispensing with the operation of the rules of evidence. Rather, it recognises (so as not to affect) any rule of common law or in equity in relation to evidence in a proceeding insofar as it relates to the court’s power to dispense with the operation of a rule of evidence in an interlocutory proceeding: International Finance Trust Co Ltd v NSW Crime Commission [2008] NSWCA 291 at [12]–[15]. This is because, in the latter, the purpose of the evidence is to determine whether there is a serious issue to be tried, not to determine the issue itself: Geoffrey W Hill & Associates v King (1992) 27 NSWLR 228 at 229–230.

A voir dire hearing pursuant to s 189 of the Evidence Act in relation to an objection to evidence tendered is not an interlocutory proceeding for the purposes of s 75: Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2008] NSWSC 637 at [9]–[16]; R v JF [2009] ACTSC 104 at [6].

Section 75 recognises that interlocutory applications frequently need to be made on an urgent basis, when direct evidence may not be able to be gathered in sufficient time or where it is undesirable to alert the other party of particular evidence: NSW Crime Commission v Vu [2009] NSWCA 349 at [43].

The party seeking to rely on the exception under s 75 must identify a particular source who is reasonably likely to have knowledge of the relevant fact (NSW Crime Commission v Vu at [46]), although this does not necessarily require identification of the “ultimate source” of the information: ibid at [42]. However, in a case where the evidence is tendered by a party to establish that the party has a particular state of mind relevant to the application (such as a suspicion that the other party has committed an offence), the failure to identify the ultimate source of the information will affect the determination of whether that state of mind exists: ibid at [48]–[50].

The weight to be given to a hearsay representation apparently based on the maker’s interpretation of certain facts may be affected by the qualifications of the person making the representations to interpret them: Westpac Banking Corporation v McArthur [2007] NSWSC 1347 at [25]. Otherwise, such conclusions are not saved by s 75 and are inadmissible: International Finance Trust Co Ltd v NSW Crime Commission, above, at [24].

A telephone survey conducted with persons who answered the telephones of identified companies, without ascertaining whether those persons were appropriate persons from whom the required information could be obtained was rejected in Humphries v SAS Signage Accessories Supplier Pty Ltd [2009] FCA 1238 at [14]. On the other hand, a survey taken of customers of the party tendering it before there was any question of litigation, who had been telephoned by its employees and asked specified questions which were contemporaneously recorded on the documents that identified the questions to be asked, was held to be admissible notwithstanding that the employees had no memory of the conversations with them: Mobileciti Pty Ltd v Vodafone Pty Ltd [2009] NSWSC 891 at [1]–[3].

Where the proceedings are interlocutory, the “source” which must be identified in s 75 is the maker of the representation as to the asserted fact to which s 59 applies: Levis v McDonald (1997) 75 FCR 36 at 307. A somewhat broader rule was stated by Hunter J in Proctor and Gamble Australia Pty Ltd v Medical Research Pty Ltd [2001] NSWSC 183 at [55], where he held that this requirement had been satisfied where the deponent of the affidavit had identified compendiously all of his sources for all of his statements, without identifying the source of each individual statement.

Section 75 applies notwithstanding the evidentiary provisions in ss 76–77 of the Australian Securities and Investments Commission Act 2001 (Cth): ASIC v Elm Financial Services Pty Ltd [2004] NSWSC 306 at [12].

A judgment obtained by a plaintiff as a result of a summary judgment application is a final order, and the application for such a judgment does not constitute interlocutory proceedings for the purposes of s 75: King Investment Solutions Pty Ltd v Hussain (2005) 64 NSWLR 441 at [22]–[26]; Scott MacRae Investments Pty Ltd v Baylily Pty Ltd [2011] NSWCA 82 at [135] at [1].

Brierley v Ellis [2014] NSWCA 230 establishes that in a “late” claim against the Nominal Defendant the plaintiff may, in appropriate circumstances, justify and explain delay by reliance upon hearsay statements. In this case, the delay was sought to be explained by a series of written statements and declarations. These were admitted by consent. The plaintiff was not required to give oral evidence or to be cross-examined. The Court of Appeal held that the plaintiff was entitled to rely upon the declarations as evidence of the facts stated therein and it was not open to the defendant to argue that, in the absence of cross-examination, little weight should be given to the hearsay nature of the evidence.

The Notes relating to Pt 3.11 commence at [4-1600].

Legislation

Further references