Evidence paper, part 3 (hearsay introduction)

This is the third instalment of my evidence paper.  Part 2 is here.

Hearsay

Litigation involving lawyers is typically document-heavy.  Lawyers usually record more things on their files in more detail than most people.  Court files contain a detailed record of the history of a matter, even to the near-unique extent of oral and written transcript of hearings.  Many clients these days communicate heavily with their lawyers by email in place of what formerly was said on the phone.  For that reason, this paper starts with an analysis of the problems of documents which are rarely the focus of writing on evidence which is almost exclusively produced by those for whom the criminal trial is the paradigm forum in which the law of evidence stands to be analysed.

It is better to talk about adduction of ‘the contents of documents’ than the adduction of documents, to distinguish between situations where the document itself is the evidence and where the statements written on it are the evidence, and better still to talk about the adduction of statements within documents.[1] The Act’s definition of ‘document’ includes ‘any part of a document’.  Accordingly, it is possible to tender statements in documents rather than whole documents,[2] and to object to one only of the statements in a document, or argue for a restricted use pursuant to one of the discretions in relation to some only of the statements in a document.  In fact, even if a document is tendered, only some statements in it may be admissible; the business records exception to the hearsay rule is only to the extent of statements within it which qualify as business records, for example: s. 69(2).

The tender of statements in documents in commercial litigation is often for a hearsay purpose.  So many are the relevant exceptions in such litigation that it is easy to lose sight of this basic proposition.  Statements in documents are obviously not made by a witness from the witness box or by the equivalent process of an affidavit read at trial or at an interlocutory hearing and so are ‘previous representations’ as defined by the Act, and documents are often used to prove the truth of statements their author, or the person quoted in the document, intended to assert, so that the previous representations become ‘asserted facts’, the subject matter of the rule against hearsay: s. 59.  Nevertheless, it is by no means true that all uses of statements in documents necessarily offend the rule against hearsay even putting aside the exceptions to the rule; much depends on the work to be done by establishing the statement in the chain of facts (including opinions) sought to be proven.


[1] In In the Marriage of Bowron (1982) 8 Fam LR 651, Baker J said at 654 ‘it is not the documents containing the statements which are admissible but rather the statements themselves.  Accordingly the existence of an admissible statement in a document does not make the balance of the document admissible if it be otherwise inadmissible.’

[2] As occurred in R v Taylor [2003] NSWCCA 194: see [112].

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