15. Hearsay — The Admissibility Sequence (Vic)

Scope and currency

Cheat sheet · Evidence Act 2008 (Vic), Uniform Evidence Law

Every admissibility inquiry runs the same seven steps: relevance → purpose → exclusionary rule → exceptions → privileges → discretionary and mandatory exclusions → residual common law discretion. This sheet works a hearsay problem through each step in order.

Step 1 — Relevance (the threshold test)

STEP 1 Is the evidence relevant? (ss 55, 56)

s 56(1): relevant evidence is admissible except as otherwise provided by the Act; s 56(2): evidence that is not relevant is not admissible. s 55(1): evidence is relevant if, "if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding". → Identify the facts in issue: the ultimate issues at trial — the elements of the offence charged and any defences. → Minimal logical connection: the test is not demanding; a logical connection between the evidence and the fact in issue suffices. → Assume acceptance: the judge must assume the jury will accept the evidence — no credibility or reliability assessment, unless the evidence is "so inherently incredible, fanciful or preposterous that it could not be accepted by a rational jury" (probative effect nil). → Not relevant: inadmissible — stop. Relevant: go to Step 2.

Step 2 — Identify the purpose

STEP 2 For what purpose is the evidence adduced?

The exclusionary rules are largely purposive. Identify whether the evidence is used to prove the truth of an assertion, to show tendency, to prove coincidence, or to bolster credibility — that determines which exclusionary rules are engaged. s59 Hearsay is inadmissible unless an exception applies. Is there a "previous representation"? Part 1 of the Dictionary to the Evidence Act 2008 (Vic): A representation made, otherwise than in the course of giving evidence, in the relevant proceeding. Defined very broadly: express or implied, oral or in writing; inferable from conduct (nodding, smirking, shivering); not intended to be communicated to or seen by another (private diary entry); or never actually communicated (unsent letter). → Non-hearsay purpose: if tendered merely to prove the statement was made the hearsay rule does not apply. Note the s 60 consequence in Step 4 — e.g.: s60(1) - A Threat (Duress) When an accused raises the defence of duress, evidence of threats made against them is not tendered to prove the truth of the threat (i.e., that the threatener would actually carry out the harm), but rather to prove that the words were spoken and that they operated on the accused's mind to overbear their will, Subramaniam and R v Rowan. - A Prior Inconsistent Statement (Credibility) Cross-examining a witness on a prior inconsistent statement is a primary method of challenging a witness's credibility. When a prior representation is adduced to show that the witness has given a contradictory account, it is tendered for the non-hearsay purpose of affecting their credibility, thereby bypassing the section 59 exclusionary rule: - Lee v The Queen. In that case, a witness (Mr Calin) made out-of-court statements to police regarding what he had seen and heard the accused do, which he later departed from in his sworn evidence. - Adam v The Queen (2001) 207 CLR 96, a witness gave a detailed police statement about witnessing a murder, identifying the accused and others present, but at trial claimed he did not see who was present. The prior inconsistent statement was admissible to attack his credit. - The Basis of an Expert's Opinion Expert witnesses frequently base their opinions on out-of-court representations, such as patient histories or accounts of events provided by others. When these statements are recounted by the expert in evidence, they are tendered to establish the factual foundation of the expert's opinion, not necessarily as independent proof of the facts themselves - Ramsay v Watson (1961) 108 CLR 642. The Court held that when a physician gives an expert diagnosis or opinion, they are ordinarily allowed to state the "history" obtained from the patient. The High Court explained that such statements are admissible because they form the foundation, or part of the foundation, of the expert's opinion. However, at common law, unless the patient gave independent evidence of those symptoms, the hearsay rule prevented the expert's recitation of the history from being used as evidence of the actual existence of those past sensations or experiences - The Maker's State of Mind, Knowledge, or Intention Representations that circumstantially reveal a person's state of mind, knowledge, or future intentions are often admitted as original evidence. Because the making of the statement has independent evidentiary value in proving the author's mental state. - Intention: In Walton v The Queen (1989) 166 CLR 283, the prosecution sought to adduce evidence from witnesses who heard the deceased state that she intended to meet the accused at a certain time and place. The High Court held that the deceased's statements were probative of her intention to meet the accused and were therefore admissible as original evidence. This principle was reaffirmed in Kamleh, where a conversation in which a co-accused stated an intention to "catch up with [the deceased] to settle a score" was tendered not to prove the truth of the narrative, but to prove the speaker's intention and state of mind. - Knowledge: The House of Lords decision in R v Blastland provides a prime example of a statement disclosing esoteric knowledge. In that case, the accused sought to adduce evidence that a third party told his partner that a "boy had been murdered" shortly after the event occurred, but before the murder was public knowledge. The House of Lords held that the statements were not hearsay, as they were put in evidence solely to prove the third party's state of mind (specifically, his esoteric knowledge of the murder's details), acting as circumstantial evidence of his potential involvement. → Hearsay purpose (to prove the truth of the facts asserted): the s 59 rule is engaged — go to Step 3.

Step 3 — The exclusionary rule

STEP 3 The hearsay rule (s 59)

Evidence of a previous representation (an out-of-court statement or conduct) is not admissible to prove the existence of a fact that it can reasonably be supposed the person intended to assert. Check whether other Chapter 3 exclusionary rules are also engaged on the same facts— each has its own exceptions outside this sheet: - opinion (s 76), - tendency and coincidence (ss 97, 98), - credibility (s 102), - character (s 110), - identification (s 114). → Rule engaged: go to Step 4 and find an exception.

Step 4 — The hearsay exceptions (all of them)

4.1 Non-hearsay purpose — the s 60 'open door'

SEE ABOVE STEP 2 If a previous representation is admitted for a non-hearsay purpose, s 60 lifts the hearsay rule entirely. The evidence can also be used to prove the truth of the facts asserted. Be prepared to seek a limiting direction under s 136 where its broader use would be unfairly prejudicial. → Exception — s 60(3): s 60 does not apply in criminal proceedings to evidence of an admission. → Limiting Direction — s 136: If an out-of-court statement is admitted to prove a witness's prior consistent or inconsistent statement, the judge will direct the jury that they cannot use that statement as proof of the truth of the facts contained within it.

4.2 The first-hand limitation (s 62)

Did the person making the representation have personal knowledge of the asserted fact (saw, heard or otherwise perceived it themselves)? → Yes — first-hand: the major exceptions (ss 63, 64, 65, 66, 66A) are available — take the routing table below. → No — second-hand ("I heard Y say that X said it"): generally inadmissible under the major exceptions; go to the second-hand and subject-matter exceptions (4.4).

4.3 — First-hand exceptions: route by proceeding and maker availability

Proceeding	Maker	Exception	Key condition
Civil	Unavailable	s 63	First-hand hearsay admissible.
Civil	Available	s 64	Admissible if calling the maker would cause undue expense, delay, or would not be reasonably practicable — or if the maker is called to give evidence.
Criminal	Unavailable	s 65	Prosecution: strict s 65(2) gateways (below). Defence: s 65(8) — the hearsay rule simply does not apply to first-hand hearsay adduced by an accused.
Criminal	Available (has been / will be called)	s 66	Occurrence of the asserted fact was "fresh in the memory" of the maker when the representation was made (s 66(2)(b)) — or the maker is a victim of an offence to which the proceeding relates who was under 18 when the representation was made.
s 65(2) If the maker is unavailable
Admitting untested hearsay (where the maker is not available for cross-examination) against an accused is "no light thing". The evidence must be 1st hand hearsay, and the representation must fall within one of: → (a) Duty: representations made under a duty (s 65(2)(a)) Section 65(2)(a) permits the admission of a hearsay, if it was made under a duty to make that representation or representations of that kind. Case law is not settled on what constitutes a "duty", particularly, whether a strict legal duty is required or whether a moral duty suffices (R v Hoffmann (No 2) compared with R v Vigar). Courts have recognised specific statutory obligations, such as: - the duty of a registered vehicle owner to disclose the identity of a driver to police under RSA s60(1) (R v Al Batat (No 5)). - It has also been held to apply to compulsory questioning under bioconservation and organised crime legislation (Secretary, Department of Planning v Namoi Valley; R v Basanovic); and - the duty of a person who enters the witness box in court proceedings to give evidence (R v Keir (No 2)) → (b) Contemporaneity: "when or shortly after" and unlikelihood of fabrication (s 65(2)(b)) Codified res gestae exception to the hearsay rule Section 65(2)(b) requires the court to be satisfied of two distinct elements: - that the representation was made "when or shortly after" the asserted fact occurred: The phrase "shortly after" does not demand strict contemporaneity (Williams v The Queen, Conway v The Queen). Instead, it requires a normative judgment based on the circumstances of the case, primarily looking at the actual time elapsed and the subject matter of the event (R v Mankotia). The overriding rationale is to ensure the representation was made spontaneously during the event or while the maker was still under the "proximate pressure" of the occurrence (Conway v The Queen). This ensures the evidence is unlikely to be a fabrication. - Examples: - Moore v The King, representations made by an assault victim to a 000 operator and paramedics 6 to 9 hours after the attack were admitted because the victim was still under the proximate pressure of the events - Bufton, representations made in a video "walk through" with police 22.5 hours after a hit-and-run were deemed admissible. - However, in Huici v The King, the Court of Appeal overturned a trial judge's ruling that a formal VARE recorded 56 hours after an alleged rape of a 90-year-old complainant was made "shortly after". The Court held that the immediacy of the event had waned, the complainant had returned to her aged care facility, and the formal questioning process lacked the spontaneity that guarantees the unlikelihood of concoction. - that the circumstances make it "unlikely that the representation is a fabrication": The term "fabrication" in this context means a deliberate concoction, not an unintentional or honest mistake (Thomas, Huici v The King, Moore v The King). Distinguishing between a deliberate fabrication and a mistake can be complex if the maker was undergoing a psychotic episode or experiencing the effects of medication (DPP v Rickerby). This provision was intended to restate and reform the rigid common law res gestae exception. → © Highly probable reliability (s 65(2)©) Section 65(2)© permits hearsay where it was made in circumstances that make it "highly probable that the representation is reliable". This is an exceptionally onerous threshold and represents a radical departure from the common law principle that hearsay is inadmissible regardless of how reliable it might appear (Conway v The Queen). Reliability for the purposes of this subsection involves assessing (Munro v The Queen): - whether the person was trying to tell the truth; - whether they had the knowledge they purported to express; and - whether they were capable of accurately recalling and reporting it at the time. It requires an examination of the objective circumstances surrounding the making of the statement, rather than a generalised assessment of whether the person was a reliable witness. Returning to Huici v The King, even though the 56-hour delay precluded the admission of the 90-year-old dementia sufferer's VARE under s 65(2)(b), the Court of Appeal upheld its admission under s 65(2)©. → (d) Against interests: Against interests and accomplice statements (s 65(2)(d)) Section 65(2)(d) is a two-limbed test: - the representation must have been against the interests of the maker at the time it was made; and - the circumstances must make it "likely" that it is reliable. Section 65(7) dictates that a representation is against interest if it tends to damage the maker's reputation, shows they committed an unconvicted offence, or exposes them to civil damages. The prosecution must establish that the contents of the representation were against interest (R v Popovic (No 4)). In Sio v The Queen the Court held that a trial judge must not take a "compendious approach" by assessing the general reliability of a police interview as a whole. The court must strictly identify the specific representation containing the asserted fact sought to be proved and assess the circumstances of that specific representation. An accomplice's self-serving or blame-shifting statements made during a police interview will rarely satisfy the requirement that the circumstances made the representation "likely" to be reliable, even if the interview as a whole contains admissions against the accomplice's own interests (Sio v The Queen, DPP v Madina). However, the mere fact that a maker is an accomplice does not automatically preclude admission. In DPP v Asling, an accomplice's representations were admitted under s 65(2)(d) because they were made to a friend in a non-custodial setting and ascribed the major role in the joint criminal enterprise to the representor himself, thereby stripping away the usual motives to falsely implicate the accused. → Prior proceedings (s 65(3)): made in the course of giving evidence in an Australian or overseas proceeding where the accused had a reasonable opportunity to cross-examine the maker. Typically involves tendering a transcript or recording of a previous proceeding, such as a committal hearing, where the unavailable witness was subject to cross-examination "Reasonable Opportunity" The question of whether an accused had a "reasonable opportunity" to cross-examine the witness frequently arises where a witness gave evidence at a committal hearing but subsequently dies, becomes too ill, or is otherwise legally unavailable for trial. Choice not to cross-examine: strategically choosing not to XXN cannot, of itself, mean that the evidence must be excluded (Bray (A Pseudonym) v R (2014) 46 VR 623). Poor quality cross-examination: A poor-quality XXN at committal, including a forensic failure by defence counsel to challenge a complainant on critical aspects of their account, still constitutes a "reasonable opportunity" for the purposes of section 65(3) (Snyder v The Queen). Absence of the accused: Under section 65(5), reasonable opportunity to cross-examine is established, if accused not actually present at the XXN, but could reasonably have been present and, if present, could have XXN the person.

"Unavailable" (ss 63 and 65)

A witness is unavailable if: dead; physically or mentally unable to give evidence; not compellable; or refuses to give evidence (e.g. s18 EA) after all reasonable steps have been taken to compel them.

"Fresh in the memory" where witness is available (s 66(2A))

Not solely a strict temporal limit. s 66(2A) was enacted in direct response to, and to overturn, the decision in Graham v The Queen, the HCA interpreted the phrase "fresh in the memory" as requiring a strict temporal connection.

Courts consider the nature of the event, the age and health of the person, and the time elapsed. Memories of traumatic events (like childhood sexual abuse) can remain "fresh" in a victim's memory for years.

Cases (still relevant after s 66(2)(b)(ii) – but only apply to adults now):

• 10 yrs – Fresh – R v Bauer (2018): allegation of sexual abused made when complainant was 15 yo, alleged abused occurred at 5 yo, HCA says given the enormity of the offending, it was very probable that the events would remain vivid in her recollection for years to come

• 11 yrs – Fresh – LMD v The Queen: CoA held that two complaints made by a victim between 7 to 11 years after alleged molestation by her uncle were fresh, despite the victim being only 7 or 8 years old when first molested.

• 16 yrs – Fresh – Barrow v The Queen: The Court of Appeal considered complaints made approximately 13 to 16 years after the event to be fresh, even though the victim was only aged 5 or 6 at the time of the alleged isolated offence.

• 12 yrs – NOT Fresh – Pate v The Queen: A complaint made 12 years after the alleged offending was held not to be fresh, though the Court acknowledged there is no rigid time limit.

• 20 yrs – NOT Fresh – Clay v The Queen (2014) 43 VR 405: CoA ruled that complaints of childhood sexual abuse made approximately 20 years after the event were not fresh in the memory, observing that a period of 20 years was "far beyond what the legislature could have ever contemplated".

Sexual abuse: R v Bauer (2018) 266 CLR 56, HCA says the nature of sexual abuse is such that the occurrence of the asserted facts may remain fresh in the memory of a victim for many years.

Mundane events: memory of mundane events tends to diminish with time, memory of traumatic, terrifying or unusual events might remain vivid for many years (Barrow v The Queen [2020] VSCA 102).

Child Victim (s 66(2)(b)(ii))

Child victims: (after 2017 section 66(2)(b)(ii) was enacted) a specific hearsay exception, if the victim was under 18 when they made the representation, it is admissible without proving the event was fresh in the memory.

Prevention of Prosecutorial Abuse (s 66(3))

The criminal justice system strongly prefers that witnesses give their evidence "live" in the witness box so their memory and credibility can be properly tested before the jury.

s66(2A) Fresh in Memory Exception could in theory allow police to adduce witness statement directly.

Section 66(3) dictates that if a statement was made specifically for the purpose of showing what evidence a person could give in a court proceeding, the prosecution cannot rely on the section 66 hearsay exceptions to adduce it. Thereby forcing Pros to call the witnesses.

The Esposito Principle: Intent over Format doesn’t strictly need to be a police statement to not be admissible, the rule applies to any statement where the maker's intent was to outline their future court evidence. A witness provided answers during a recorded police interview. Although it was an oral interview and not a typed "proof of evidence", the court still blocked the evidence under the section 66(3) equivalent. The deciding factor was that the witness repeatedly indicated to the police that the information he was giving was the evidence he would be prepared to give in court against the accused. Because the witness's purpose was to indicate his future testimony, the interview was caught by the limitation.

The Sole Exception: Identification A strict carve-out. The prosecution can use a formal police statement or proof of evidence under section 66, but only if the representation relates exclusively to the identity of a person, place, or thing.

For example, if the prosecution wants to prove that a witness previously identified the accused, they can adduce the specific part of the police statement where the witness says, "The man in photograph number four is the man who assaulted me." However, the rest of the narrative contained within that police statement remains strictly inadmissible.

4.4 — The remaining exceptions (in the summary's order)

• Contemporaneous statements (s 66A): the rule does not apply to a contemporaneous representation by a person about their health, feelings, sensations, intention, knowledge or state of mind (e.g. "I am in pain right now").

• "Second-hand" — business records (s 69): representations in documents kept in the course of, or for the purposes of, a business are admissible if made by someone with personal knowledge of the fact, or based on information supplied by someone with such knowledge. Does not apply to documents prepared for court proceedings or in connection with a criminal investigation.

• "Second-hand" — tags, labels and writing (s 70): writing placed on an object in the course of business to describe its identity, nature, ownership, destination, origin or weight.

• "Second-hand" — electronic communications (s 71): representations in a document recording an electronic communication regarding the identity of the sender/recipient or the date and time it was sent (includes metadata on emails).

• Aboriginal and Torres Strait Islander traditional laws and customs (s 72): representations about the existence, non-existence or content of those traditional laws and customs.

• Reputation (ss 73, 74): reputation concerning relationships, marriage, age or family history; and public or general rights. In criminal proceedings, restricted unless contradicting admitted evidence or notice is given.

• Interlocutory proceedings (s 75): hearsay is admissible if the party adducing it also adduces evidence of its source.

4.5 First-hand admissions (s 81)

Admission: a representation made by a party to the proceeding that is adverse to that party's interest in the outcome of the proceeding. First-hand evidence of an admission — and any previous representation made in relation to it, at or shortly before or after it, to which it is reasonably necessary to refer in order to understand the admission — is exempt from the hearsay (and opinion) rules. → Mixed statements: police records of interview almost invariably contain some admissions (Nguyen v The Queen (2020) 269 CLR 299). Where an accused admits the physical acts but asserts self-defence, the exculpatory elements will frequently be admissible under s 81(2) — reasonably necessary to understand the context and rationale of the admission. → False exculpatory statements: a false alibi tendered as adverse to the accused's interests in the outcome is properly characterised as an admission (Beckett v R); false exculpatory statements operate as implied admissions by conduct (R v Esposito (1998)). → Not admissions: declining to take part in an identification parade, or the mere production of a writing sample (R v Fowler (2003) 151 A Crim R 166; R v Esposito (1998) 45 NSWLR 442). → Third parties — s 83: an admission cannot be used against a third party (such as a co-accused) unless that third party explicitly consents to the use of the evidence in its entirety.

S83 vs s65(2)(d): if an accomplice is not a co-accused in the immediate proceeding, their out-of-court statement is not an "admission" (therefore does not invoke section 83), but rather hearsay governed by the strict reliability threshold of section 65(2)(d).

Under the Dictionary to the Act, an "admission" is strictly defined as a previous representation made by a person who "is or becomes a party to a proceeding" (such as an accused in a criminal proceeding) that is adverse to their interest in the outcome. Section 83 regulates the use of these admissions against a "third party", which s 83(4) defines as a party to the proceeding concerned, other than the party who made the admission or adduced the evidence.

Consequently, s 83 is enlivened in joint trials. If two co-accused are tried together, they are both parties to the proceeding, and an admission made by one cannot be used against the other without their explicit consent. However, if an accomplice is tried separately or is otherwise not a party to the accused's trial, their previous representation is not an "admission" for the purposes of the accused's proceeding. Because the maker is not a party, s 83 simply does not apply. In such cases, the accomplice's statement is classified as hearsay, and the prosecution must establish its admissibility through the hearsay exceptions, such as s 65(2)(d) if the accomplice is unavailable to give evidence.

4.6 — Character of an accused (ss 110, 111)

Hearsay rule lifted for character evidence. Where evidence is admitted demonstrating an accused is of good character, the hearsay rule does not apply to rebuttal evidence proving the accused is not of good character. The hearsay rule also does not apply to expert opinion evidence regarding the character of an accused adduced by a co-accused (s 111).

Step 5 — Privileges

STEP 5 Is the evidence protected by a privilege? (Part 3.10)

Privilege prevents the adducing of the evidence — even where a hearsay exception applies — unless the privilege has been waived or a specific statutory exception applies (e.g. s 121). → Client legal privilege: s 118. → Matters of state: exclusion of evidence of matters of state — s 130.

Step 6 — Discretionary and mandatory exclusions (the safety net)

Applies to every admitted exception — Part 3.11

• Mandatory exclusion for unfair prejudice (s 137): in criminal proceedings the court must refuse prosecution evidence if its probative value is outweighed by the danger of unfair prejudice to the defendant. Probative value is taken at its highest, assuming the jury accepts it — no credibility or reliability assessment at this stage (IMM v The Queen; R v Bauer). The mere fact the defence cannot cross-examine an unavailable witness is not automatically decisive — that would render s 65 useless.

• General discretion to exclude (s 135): the court may refuse evidence whose probative value is substantially outweighed by the danger of unfair prejudice, misleading or confusing the tribunal, or undue waste of time.

• Discretion to limit use (s 136): the court may limit the use of evidence where a particular use might be unfairly prejudicial, misleading or confusing — the key companion to the s 60 open door.

• Illegally or improperly obtained evidence (s 138): not admitted unless the desirability of admission outweighs the undesirability of admitting evidence obtained that way. The accused first proves the illegality or impropriety; the onus then shifts to the prosecution to justify admission.

• Jury directions: hearsay cannot be tested by cross-examination and poses risks as to accurate perception and memory — "evidence of a kind that may be unreliable". Upon request, trial judges give strong directions on the dangers of placing too much weight on untested hearsay.

Step 7 — Residual common law discretion

Fair-trial backstop. A residual common law discretion (the Christie or Lee discretion, depending on context) survives the Act to exclude otherwise admissible evidence where its admission would render the trial fundamentally unfair (Haddara v The Queen).