A Law Reform Commission report proposes giving the court discretion to admit hearsay evidence in criminal proceedings where it is satisfied the admission of it is "necessary" and the evidence "reliable".

Released today, the report suggests the existing rule prohibiting the admission of hearsay evidence in criminal proceedings be reformed, noting the law of hearsay has been reformed in a number of other common-law jurisdictions.

While reform is needed, the commission said any review of hearsay rules must incorporate adequate safeguards to protect the interests of the accused and the community.

A simple explanation of the term "hearsay" the report described is "when A tells a court what B has told him, that evidence is called 'hearsay'". Under the existing law, hearsay evidence is inadmissible in criminal proceedings unless it falls within one of a number of common law or statutory exceptions.

The commission said relevant and reliable hearsay evidence should be admitted where the need exists for such evidence, under a comprehensible and principled approach to that admissibility.

Admission criteria

The present rule against admission of hearsay evidence should be retained but there should be greater scope to admit hearsay evidence in specific circumstances.

Hearsay evidence should be admissible if it falls within an existing statutory exception or within one of several common law exceptions to be preserved if the parties agree, or if the court is satisfied it is "necessary" to admit the hearsay evidence and it is "reliable".

The admission of hearsay would be necessary only in certain specified circumstances, such as where the declarant is dead, or cannot be found, or refuses to testify on the ground of self-incrimination.

The party applying to admit hearsay evidence under the discretionary power must prove the condition of necessity to the required standard of proof, which will be "beyond reasonable doubt" if the party applying is the prosecution, and "on a balance of probabilities" if the party applying is the defence.

Reliable evidence

In determining whether the evidence is "reliable", the court must consider all circumstances relevant to the statement's apparent reliability, including its nature and contents, the circumstances in which it was made, and factors that relate to the declarant's truthfulness. Hearsay evidence will not be admitted unless its probative value exceeds its prejudicial effect.

To give greater protection to an accused person, the trial judge should have the power to direct a verdict of acquittal of the accused at any time after the conclusion of the prosecution's case if the judge considers that taking account of a number of factors, including the nature of the hearsay evidence and the importance of that evidence to the case against the accused, it would be unsafe to convict.

The commission also makes recommendations on other specific aspects of hearsay, including the admissibility of banking, business and computer records, and prior statements of witnesses. Click here for the report.