Part 30

Evidence - Hearsay

 

Contents of this Part

Scope of this part Rule 30.1

Service of hearsay notice Rule 30.2

Contents of notice - statements admissible under

s.37 of the Act Rule 30.3

Contents of notice - statements admissible under

s.39 of the Act Rule 30.4

Contents of notice - statements admissible under

s.40 of the Act Rule 30.5

Reasons for not calling a person as a witness Rule 30.6

Service of Counter-notice Rule 30.7

Power of Court to allow statement to be given in evidence Rule 30.8

Notice of intention to challenge credibility of hearsay

evidence Rule 30.9

 

Scope of this Part

30.1 (1) This part deals with the admissibility of "hearsay evidence"

    1. "Hearsay Evidence" means a statement other than one made by a person while giving oral evidence of any fact set out in the statement.
    2. In this part 'the Act' means the Evidence Act Chap 7.02.

(4) 'Hearsay Notice' means a notice of intention to give hearsay

evidence

Service of hearsay notice

30.2 (1) Any party who wishes to give hearsay evidence which is

admissible only by virtue of ssections 37, 39 or 40 of the Act must serve on every other party a hearsay notice
    1. A hearsay notice must be served not later than the time by which witness statements are to be served or, if there are no such statements, not less than 42 days before the hearing at which the party wishes such evidence to be given unless the court gives permission.
    2. A hearsay notice is not required where
    1. a party to a probate action wishes to give a statement in evidence alleged to have been made by the deceased person whose estate is the subject of the action; or
    2. hearsay evidence is included in an affidavit for use in interlocutory proceedings.

 

Contents of notice - statement admissible under s.37 of the Act

30.3 (1) This rule applies where the statement is admissible under

s.37 of the Act.

    1. Where the statement was not made in a document, the notice must contain particulars of -
    1. the time place and circumstances at or in which the statement was made; and
    2. the persons by whom and to whom the statement was made; and
    3. the substance of the statement and so far as practicable the words used.
    1. Where the statement was made in a document -
    1. a copy of the document or of the relevant part of the document must be annexed to the notice; and
    2. such of the particulars required under paragraph (2)(a) and (b) as are not apparent on the face of the document must be given.
    1. If the party giving the notice
    1. does not intend to call any person of whom details are contained in the notice; and
    2. claims that any of the reasons set out in rule 30.6 apply,

the notice must say so and state the reason(s) relied on.

 

Contents of notice - statement admissible under s. 39 of the Act

30.4 (1) This rule applies where the statement is admissible under

s.39 of the Act.
    1. The notice must have annexed to it a copy of the statement or the relevant part of the statement.

(3) The notice must also contain -
    1. particulars of

(i) the person by whom the record

containing the statement was compiled; and

(ii) the person who originally supplied the information from which the record was compiled; and

(iii) any other person through whom that

information was supplied to the compiler;

and

(b) a description of the duty under which any person

named or particularised under Paragraphs (a)(i) or

(iii) was acting when -

(i) compiling the record; or

(ii) supplying the information from which the record was compiled; and

(c) a description of the nature of the record

containing the statement; and

(d) particulars of the time in, place at, and

circumstances under which that record was

compiled.

(4) If the party giving the notice -

(a) does not intend to call any person of whom

details are contained in the notice; and

(b) claims that any of the reasons set out in rule

30.6 apply

the notice must say so and state the reason(s) relied on.

 

Contents of notice - document admissible under s. 40 of the Act

30.5 (1) This rule applies where the statement is admissible

under s.40 of the Act.

(2) The notice must have annexed to it a copy of the

document or the relevant part of the document

containing the statement.

    1. The notice must also contain -

(a) particulars of

(i) a person who had responsibility for the

management of the relevant activities

for which the computer was used

during the material period; and

(ii) a person who during that period had responsibility for the supply to the computer of the information reproduced in the statement of information from which that information was derived; and

(iii) a person who had responsibility for the operation of the computer during that period;

and

(b) a statement whether or not the computer was

operating properly throughout the material period

and, if not, whether any failure to operate properly

might have affected the production of the document

containing the statement or the accuracy of its

contents.
    1. If the party giving the notice
    1. does not intend to call any person of whom details are contained in the notice; and
    2. claims that any of the reasons set out in rule 30.6 apply

the notice must say so and state the reason(s) relied on.

 

Reasons for not calling a person as a witness

30.6 The reasons referred to in rules, 30.3(4)(b), 30.4(4 ) and

30.5(4), are that the person -

(a) is dead; or

(b) is overseas; or

(c) is unfit by reason of bodily or mental condition to

attend as a witness; or

(d) cannot reasonably be expected to have any

recollection of matters relevant to the accuracy or

otherwise of the statement; or

(e) that despite using reasonable diligence it has not been

possible to

(i) identify that person; or

(ii) find him.

 

Service of Counter-notice

30.7 (1) A party on whom a hearsay notice has been served may

serve a counter-notice requiring the server of the notice to

call any person named in the counter notice as a witness.

(2) The counter-notice must be served within 21 days of

service of the notice.

(3) If there is a statement in the hearsay notice that the person named in the counter-notice cannot or should not attend for a specified reason, the counter-notice must state why that person should be required to attend.

(4) No counter notice may be served where there is a statement in the hearsay notice that one of the reasons in rule 30.6 applies.

(5) The party served with the counter-notice may, however, apply to the court for directions as to the admissibility of the statement.

(6) Where a counter-notice is served no statement made by any person named in the counter-notice shall be admissible unless the server of the hearsay notice -

(a) calls the person named; or

(b) applies to the court for directions as to the admissibility of the statement

(7) Any application to the court under paragraph (5) or (6) shall be made at a pre trial review wherever practicable.

(8) No application may be made at the trial or hearing at which the statement is, or is not, to be admitted unless the applicant can show that the application could not have been made earlier.

 

Power of court to allow statement to be given in evidence

30.8 The court may permit a party to adduce hearsay evidence falling within sections 37, 39 and 40 of the Act even though the party seeking to adduce that evidence has -

(a) failed to serve a hearsay notice; or

(b) failed to comply with any requirement of a counter notice served under rule 30.7.

 

Notice of intention to challenge credibility of hearsay evidence

30.9 Where

(a) a party has served a hearsay notice complying with sections 37 or 39 of the Act; and

(b) none of the reasons under rule 30.6 apply; and

(c) the person who made the statement or supplied the information from which the record containing the statement was compiled is not called,

no party may adduce any evidence under section 42 of the Act

without the permission of the court, unless he gave a counter-

notice in respect of that person under rule 30.7.