Hearsay – What is it & how to identify it in law

There is a lot of confusion in law as to what and what is not hearsay. 

The below is a brief but simple version on what is hearsay and how to identify it when you are either dealing with a criminal or civil matter at law.  


Hearsay is all about proof of the facts. If an eyewitness gives an account of the facts from his/her memory under oath at Court, it NOT hearsay but “original Evidence”. AND is the preferred method of proving facts and giving evidence as it allows evidence to be given under oath AND importantly to be subject to cross examination.   


Hearsay then is the out of Court statements that have the following conditions: -

  1. It is a previous representation (something said out of Court) made by a person;
  2. That statement is relied on to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.

The above 2 elements MUST be satisfied for a statement to be classed as hearsay at law.

An example:

Tammy sees a truck accident and she also saw that the traffic light colour at the time the accident occurred. If in court Tammy says: “the traffic light was red”. As this comes from her memory of what she saw, heard, or perceived this is referred to as ‘original evidence’ (NOT HEARSAY).

BUT if Tammy says to say a person named Colin (who did not see the accident): “The traffic light was red and caused an accident”. Then, evidence of what she said to Colin whether it is said by Tammy or Colin, is hearsay if used as evidence of the colour of the traffic light (HEARSAY).

Why? Because Tammy’s statement, given by either her or Colin, is used to prove the colour of the light AND was a previous statement made not in Court under oath.

BUT there are exceptions just like all things in all law!


Exceptions include:

  • Evidence relevant for a non hearsay reason; - meaning that it does not go to assert a fact at issue but is used for another purpose such as credibility or inconsistent statements (however once in can be used to assert a fact).
  • First-hand hearsay in civil proceedings if maker is unavailable (s 63) or available S 64 (with an excusable reason allowed by the Court)
  • Criminal proceedings if maker unavailable s 65 or available s66 but cannot attend (with an excusable reason allowed by the Court)
  • S 66A contemporaneous statements about a person’s health
  • Business records s 69

To make things more confusing is there are different types of hearsay, being:

  • First-hand hearsay
  • Second-hand hearsay
  • And more remote hearsay rules.

Given this it is always best if you find a statement that reveals someone stating they heard someone say to them etc …that you attempt to exclude the evidence since hearsay evidence once it is accepted into evidence it is incapable of being cross examined and can lead to a different outcome and one that may be unjust or at least unfair since no opportunity to test the evidence was available.    

We here at Rep-Revive Criminal & Employment lawyers have helped many people facing very serious and life changing criminal charges AND go through each and every piece of evidence to ensure no hearsay or other inadmissible evidence is allowed. So, if you or someone you know is charged with criminal offence, contact Rep-Revive Criminal & Employment Lawyers® for a free initial consultation on (02) 9198 1997 or visit for further information on how we listen, we fight, and you win! 



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