Common law rule against hearsay
The hearsay rule is one of the oldest of the exclusionary rules in the law of evidence, having developed at the same time as the modern form of trial by jury.
At common law, a witness who was testifying could not repeat either:
- What he had himself said outside the witness box on an earlier occasion; or
- Assertions of other persons, whether oral, written or by conduct.
An assertion is hearsay when it is tendered to establish the truth of that asserted. It is not hearsay when tendered to establish the fact that an assertion was made or the manner in which it was made.
It is also necessary to distinguish between hearsay and real evidence. Real evidence consists of physical objects which are produced for inspection by the court. Thus, a watch may be produced to prove it is defective, or a dog to prove it is vicious. An automatic recording, e.g., a tape recording, video recording or computer printout can be an item of real evidence and, if so, will be admissible provided there is prima facie evidence that it is authentic and sufficiently intelligible. The question is whether any specific recording is real evidence or hearsay. This turns on whether the recording or printout contains information produced with human intervention: if not, it is real evidence.
Civil Evidence Act 1995
Admissibility of hearsay in civil cases
The admissibility of hearsay is governed by statute, which provides that:
In civil proceedings evidence shall not be excluded on the ground that it is hearsay.
However, hearsay will not be admissible if the maker of the statement would not have been competent as a witness, such as through being too young or of unsound mind.
The rules of court may:
- Specify classes of proceedings in which a party intending to rely on hearsay evidence must give advance notice to the other parties;
- Make provision for the other parties to request particulars of the hearsay evidence intended to be adduced; and
- Prescribe the manner and time for complying with the above.
Hearsay is frequently given by witnesses who repeat what they were told on a previous occasion, and, as the witness statements are supposed to set out the evidence the witnesses are intended to say in-chief, hearsay evidence will usually be set out in the exchanged witness statement. A single hearsay notice may deal with the hearsay evidence of more than one witness. The duty to give notice may be waived by the parties. A failure to comply with the duty does not affect the admissibility of the hearsay evidence, but may adversely affect the weight of the evidence and may be penalised in costs.
Assessing the weight of hearsay evidence
In assessing weight, all the relevant circumstances must be considered. These include the ease of calling the maker of the statement, how contemporaneous the statement was with the events it describes, whether it involves multiple hearsay, any editing, and any motive the maker or recorder may have had to conceal or misrepresent matters. Evidence is admissible to attack or support the credibility of the maker of the hearsay statements introduced at trial, unless under the rules of evidence a denial by the witness would have been final. This means that evidence on collateral matters cannot be introduced to attack a hearsay statement, subject to the usual exceptions, namely that the witness has been convicted of a crime, the fact that the witness is biased in favour of the party calling him or her, and the fact that he or she has made a statement inconsistent with the present hearsay statement.