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Where am I now? Lawlink > Law Reform Commission > Publications > The Commission's Recommendations
Report 29 Outline (1978) - The Rule Against Hearsay
The Commission's Recommendations
General nature
If the Commission’s recommendations are accepted, the old common law of hearsay evidence will be abolished, and for the most part the law will be found in one statute. There will be a general prohibition against proving a fact by means of a statement which someone has made out of court, unless the statement can gain admission through one of the gateways provided in the legislation.
The main gateway is one which allows certain more reliable classes of hearsay evidence (defined by their closeness to the original source) to be used, if the person who made the statement is called as a witness, or if there is justification for not calling him.
Another gateway, which existed. at common law, allows in an admission by an opponent in the case. Under the proposal this gateway is opened more widely, and some statements of other people connected with the party may be put in evidence against him.
A very important gateway relates to business records. The Commission made recommendations on this subject in an earlier Report. They were adopted by the State Parliament in 1976 and by Federal Parliament in 1978. These provisions are incorporated in the new Act which we recommend, with some changes prompted by experience or further thought.
There are also a number of other gateways, some of which existed at common law, and some of which are new.
Finally, there is a gateway in the form of an overriding discretion in the court to admit reliable hearsay evidence which cannot get in through any other gateway. It is balanced by other overriding discretions to exclude hearsay evidence if the interests of justice require.
There are a number of ancillary provisions in the proposals, some of which will be mentioned below.
The main gateway
The most important gateway is one that allows in certain classes of hearsay evidence (defined by closeness to the original source) if the person who made the statement is called as a witness, or there is justification for not calling him. Normally a person who observed the making of the statement must be called if the person who made it does not himself give evidence. This gives an opportunity for cross-examination both about the circumstances in which the original statement was made and the accuracy of the repetition. However, as will be explained, in the case of documentary evidence the gateway is a little wider. Two points call for elaboration. What classes of evidence are to be allowed through the gateway? What justifications are enough to open the gate?
(a) What classes of hearsay will be admissible?
A witness can give evidence of an event by speaking of his own observations of the event. “I saw Jones hit Smith”. The hearsay problem arises where he did not observe the event, but can only repeat what someone else has told him. If his information comes from someone who did observe the event, it is first-hand hearsay. “Black told me that he saw Jones hit Smith”. Although less reliable than evidence by an observer of the event, first-hand hearsay is likely to be more reliable than second-hand hearsay, which occurs where a witness in court repeats a statement by a person who in turn was repeating what he was told by the person who observed the event. “White told me that Black told him that he saw Jones hit Smith”. Every repetition means more risk of divergence from the original statement, and also more difficulty in testing both the accuracy of the original statement, and the accuracy of the repetition. Where the chain of information is entirely oral, the Commission’s main recommendations provide wide opportunities for first-hand hearsay to be placed before the court, but exclude second-hand and more remote hearsay.
The problem of inaccuracy due to repetition is not so acute when the evidence is tendered in a documentary form. (In the Commission’s scheme, a document includes a tape and any other record of information.) Some methods of mechanical copying allow a long chain of copying to occur without loss of accuracy. Even where there is human intervention, the circumstances may inspire confidence that one document is a true copy of, or a fair extract from or a fair summary of, another document. Hence although the Commission’s main proposal for extensive admissibility is limited in the case of oral evidence to first-hand hearsay, in the case of documentary evidence it applies no matter how many links there are in the chain of copies I or fair extracts or summaries), so long as the chain goes back to a reliable source. That source may be a record made by the person who made the original statement, or by someone who observed him make it. Where the original statement was made in a document, the document itself may also be the source.
(b) When is hearsay evidence admissible?
Although hearsay evidence of the type described is picked out as being usually more reliable, it is not recommended that it be automatically admissible. If the person who made the statement is not already a witness, the party who wishes to use it should present him for cross-examination if it is at all reasonable for him to do so. The recommendations therefore include a list of circumstances which will be sufficient justification for not calling as a witness the person who made the statement. Actually there are two lists a longer one for civil cases and a shorter one for criminal cases. This is one of several points on which we make different recommendations for civil and criminal cases. The reasons for the differences will be mentioned later.
Under the recommendations there is justification in either a civil or a criminal case for not calling the person who made the statement if he is dead or unfit to give evidence, if he refuses to be sworn although compellable to give evidence, or if he cannot be identified or cannot be found. In a civil case, there is also justification if the person is outside New South Wales and reasonable steps have failed to secure his testimony; if he is not compellable and refuses to give evidence; if undue delay, expense or inconvenience would be caused; if he cannot reasonably be expected to have a useful recollection; or if it is unreasonable to expect the party who wishes to use the statement to call him, because of his relation with any party. The last category covers the case where the person who made the statement is so clearly in the opposing camp that it would be unreasonable to expect the party to call him as his witness.
If the original statement was made orally, and justification is established for not calling the person who made it, it may be proved by the evidence of someone who observed him make it. Evidence b y such a person is first-hand hearsay, and is the limit of the oral evidence that is made admissible under the main proposal. However if no such person can be called (justification being determined by the same tests as with the maker of the statement), a documentary record of the sort mentioned earlier may be put in evidence.
If the original statement was made in a document, the document should be produced to the court, or its contents proved by other evidence in those circumstances where the present law allows the contents of a document to be proved without producing it. For example, if the document is lost or destroyed, or cannot be brought to court, or is withheld by the opposing party or by someone who cannot be compelled to produce it, a copy may be used, or someone familiar with its contents may give oral evidence. The recommendation goes further than this in providing that if it is not practicable to prove the statement by the document, a record of the sort mentioned earlier may be used.
This proposal will not make admissible, in either civil or criminal proceedings, statements by an anonymous accuser, i.e., a person who has refused to disclose or has deliberately concealed his identity.
Admissions and like statements
At common law it is possible to use as evidence against a person a statement which he has made or authorized. Such a statement is called an admission. However, the existing law is not well adapted to present conditions where the principal party to many transactions, or the person responsible for activities which injure another, is frequently a company or other remote employer with whom the public has no direct contact. All dealings are with employees, but unless it can be proved that an employee was authorized by the employer to make statements, what he says cannot be used as evidence in a case against the employer. This sometimes makes it very difficult for a person with a good, case against a large organization to prove it, as is illustrated by examples (3) and (6) given earlier in this paper. The classic example is the admission by a lorry driver after an accident that he was not looking or was speeding, or was otherwise negligent. Although the driver’s employer is legally responsible for his employee’s negligence, the driver’s statements cannot be put in evidence.
To overcome this the recommendations provide a new category of statements “affecting a party”, which may be used against him. Even if an employee or agent did not have authority to make a statement, what he says will be admissible against his employer or principal if-
(a) he appeared to have authority to make it;
(b) it related to a matter within the scope of hi’s employment or agency, and was based on personal knowledge;
(c) it related to a matter of which he had superintendence; or
(d) it related to a matter which it was within the scope of his employment or agency to discuss with a person to whom he made the statement.
Business records
Records which are systematically kept, for example in business or government, are often reliable, even though the person who compiles them relies on information supplied by others. But at common law the rule against hearsay frequently made it impossible to use them. The Commission made a report on this subject which led to N.S.W. legislation in 1976 making business records admissible in a wide variety of circumstances. The Commonwealth adopted it this year. The legislation seems to be working satisfactorily, and with minor amendments, mainly to clear up doubts about its full extent, it is incorporated in these recommendations. It will overlap in many cases with other parts of the recommendations, but no harm is done if there is more than one gateway through which a piece of evidence may get before the court.
Other gateways
Most of the common law exceptions to the rule against hearsay are made unnecessary by the width of the Commission’s main recommendations. However there are a number which seemed worth preserving as special gateways, although in most cases we have clarified or extended them.
These include rules about the admissibility of evidence given by expert witnesses, and of reputation as evidence of certain matters. They also allow the use of works of authority, published compilations, and many public documents. Arguments about the admissibility of telephone books, street directories, electoral rolls and bus timetables should be put to rest.
Some new gateways on specific matters of everyday occurrence have been provided, to remove doubts or overcome objections to their use as evidence. They include labels on goods, business signs displayed on or in land, buildings and vehicles, and post-marks.
Discretionary admission
So far as possible, the recommendations give definite rules on when hearsay evidence will be admissible. This is important in an adversary system where parties are responsible for preparing and presenting their cases. However it is unlikely that any rules, however satisfactory in the general run of cases, can fail to throw up the old case of hardship.
In the past the law has proceeded on the basis that such hardship provides no ground for waiving the strict application of the rules of evidence. The one exception has been in criminal trials, where the judge has a discretion to reject evidence which, although admissible, would be unfairly prejudicial to the accused. While the Commission accepts the desirability of certainty in the law of evidence, it does not think that this should be pressed to the point of denying the court any discretion to relax the rules, no matter how valuable the evidence or how absurd or unjust its exclusion.
Under our proposals, the court would in every case, civil or criminal, have a discretion to admit a statement if there were reasonable grounds for thinking it might be reliable, notwithstanding that it was hearsay and not admissible through any other gateway. On the other hand, there would be a discretion to reject evidence in certain circumstances, e.g., if its weight was too slight to justify its admission, or if its utility was outweighed by its tendency to prolong the proceedings, or to operate unfairly against a party, or to mislead a jury, or if it would unfairly surprise a party. Instead of rejecting the evidence, the court could admit it on terms, e.g., of allowing an adjournment to a party taken by surprise.
The recommendations preserve the existing discretion to reject evidence which would operate unfairly against an accused. They also give an important new discretion to admit evidence which would tend to support the acquittal of an accused.
These discretions, and particularly the discretion to admit reliable evidence, will not only provide relief in exceptional cases, but will allow the courts to continue the development of the law, without the need lor intervention by Parliament. Precedents can be established by judicial decisions for the admission of certain classes of hearsay evidence which come to be recognized as reliable, whether as a result of technological progress or any other reason.
Other recommendations
No attempt is made to summarize here all the provisions of the recommended legislation, some of which deal with matters of technicality. For example, at present a judge or jury may be required to take a piece of evidence into consideration for one purpose, but not for another. This can be confusing or artificial, and the recommendations seek to reduce the circumstances where such rules apply.
There are also many provisions which are ancillary to the main recommendations discussed in this paper, and a number which are included to reduce doubts and arguments. Some of these are referred to in the text section.
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