Hearsay 

Of all the exclusionary rules a student meets in evidence law, hearsay is the one most likely to be misapplied — either treated as excluding far more than it does, or overlooked entirely because a statement does not look like classic secondhand gossip. Understanding precisely what the rule catches, and why, is the foundation for using it correctly.

What the rule excludes

The hearsay rule provides that a previous representation — broadly, a statement, whether made in words, in writing, or by conduct, and whether made in or out of court — is generally not admissible if it is tendered to prove the existence of a fact that the person who made it intended to assert — s 59 of the Evidence Act 1995 (Cth) and its uniform counterparts.¹ The critical phrase is tendered to prove the truth of what it asserts. The same statement can be perfectly admissible for some other purpose, such as proving merely that the statement was made, or its effect on a person who heard it, without engaging the hearsay rule at all — because in that use, the party is not asking the fact-finder to accept the statement's content as true.

A representation does not have to have been made in court, or by a witness at all, to raise a hearsay problem. A statement recorded in a document, relayed by a witness who heard someone else say it, or implied by conduct, can all be previous representations for this purpose if tendered for their truth.

Why the rule exists

The rationale is the inability to test the maker. The safeguards that ordinarily allow a fact-finder to assess the reliability of testimony — the witness giving evidence under oath or affirmation, in the presence of the fact-finder, subject to cross-examination — are absent when a court is asked to accept, at second hand, what someone else said outside the courtroom. The opposing party cannot test the original maker's perception, memory, sincerity, or the precision of their language, because that person is not before the court giving that evidence. The rule exists to prevent a fact-finder from acting on assertions that have never been exposed to that testing process, regardless of how confidently or plausibly they are relayed.

Exceptions exist, and matter

Stated as an absolute rule, hearsay would exclude an enormous amount of evidence that courts routinely and appropriately receive — business records, admissions, statements made in circumstances that make them inherently reliable, and more. In practice, both the uniform evidence law and the non-uniform jurisdictions' own evidence law recognise a substantial body of exceptions to the hearsay rule, reflecting categories of previous representation that are considered sufficiently reliable, or sufficiently necessary to admit given the unavailability of the original maker, to justify departing from the general exclusion.

This module does not attempt to catalogue those exceptions exhaustively, because their number and their precise formulation differ between the uniform evidence law jurisdictions and Queensland, South Australia and Western Australia, and because a workable list requires engaging with legislative text and case law beyond the conceptual scope of an orienting article. The point a student must take away is structural: never assume a previous representation is automatically excluded merely because it is hearsay — the correct approach is always to identify that the rule is engaged, and then to ask whether a recognised exception applies on the facts, in the specific jurisdiction governing the problem.

Working through a hearsay problem

The recurring error is skipping the "tendered to prove the truth of what it asserts" question. A statement offered only to show that words were spoken — for example, to establish that a warning was given, independent of whether the warning's content was accurate — is not caught by the rule, because the party is not relying on the statement's truth. Distinguishing this non-hearsay use from a hearsay use of the very same words is often the crux of a hearsay problem, and it must be done before reaching for any exception.

Applying this in a problem question

1. Identify the previous representation — the specific words, writing, or conduct said to have been made out of court.
2. Ask what it is being tendered to prove. If it is tendered for its truth, the hearsay rule is engaged; if it is tendered only to prove that it was said, or its effect on a listener, it is not.
3. If the rule is engaged, do not conclude the evidence is excluded — ask whether a recognised exception applies on the facts.
4. State which jurisdiction's scheme governs, since the exceptions differ between the uniform evidence law and Queensland, South Australia and Western Australia.
5. Connect your conclusion back to the rationale: could the maker of the representation be tested by cross-examination, and if not, does an exception justify admitting it anyway?