What is hearsay evidence in Australia?
Hearsay evidence is a "previous representation made by a person" tendered to prove the existence of a fact asserted in that representation. Under section 59 of the uniform evidence legislation (Evidence Act 1995 (Cth), Evidence Act 1995 (NSW), Evidence Act 2008 (VIC), and equivalents in Tasmania, Northern Territory, ACT, and Norfolk Island) hearsay is inadmissible unless an exception applies. The main exceptions are business records, admissions, first-hand hearsay where maker is unavailable, and contemporaneous statements.
The rule and its purpose
Under section 59 of the Evidence Act 1995 (NSW) and equivalents, evidence of a previous representation is inadmissible to prove the truth of a fact asserted. The rationale is that the maker of the statement is not in court to be cross-examined. The rule applies to oral statements, written statements, and conduct intended as an assertion.
First-hand hearsay exceptions
Part 3.2 Division 2 of the Evidence Act 1995 (NSW) and equivalents provides exceptions for first-hand hearsay (where the witness heard the maker directly). Where the maker is not available (section 65), first-hand hearsay can be admissible if the representation was: against interest; under a duty to make; in circumstances making it highly probable to be reliable; or made shortly after the asserted fact.
Business records
Section 69 of the Evidence Act 1995 (NSW) provides an important exception for business records — a document that forms part of the records of a business is admissible for the truth of its contents if made by a person with personal knowledge of the asserted fact. This is widely used in commercial litigation to tender correspondence, invoices, and business files without calling every author.
How I help with evidence rulings
I help litigation lawyers draft objection notes, tender bundles with objections flagged, and section 192 balancing arguments. Hearsay objections are a high-volume issue in Australian civil and criminal trials — I provide a consistent checklist-driven approach.
Common issues
- Business records are not automatic — they need a foundation witness or certificate
- Admissions by party-opponent are treated separately under section 81
- The uniform evidence legislation does not apply in QLD, WA, and SA — different rules apply there
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