Documentary hearsay refers to written or recorded statements made outside of court that are presented as evidence to prove the truth of what they assert. In essence, it is a subset of the broader hearsay rule, which excludes statements made by a person who is not present to testify and be cross examined. The core concern is fairness that no party should be prejudiced by evidence they cannot properly challenge.
Under traditional common law, hearsay evidence, including documentary hearsay is inadmissible because it lacks the safeguards of in-court testimony. These safeguards include the opportunity to observe the demeanour of the witness, to ensure the statement was made under oath, and to allow the opposing party to cross-examine the source of the information. Documentary hearsay therefore represents a potential risk to procedural fairness, especially when relied upon as conclusive proof.
However, modern legislation has carved out a number of exceptions to this general rule, particularly in statutory contexts where efficiency and practicality are prioritised. In Queensland, for example, the Evidence Act 1977 (Qld) governs the admissibility of documentary hearsay. Sections 92 and 93 are particularly relevant. These provisions allow certain documents to be admitted even if the person who made the statement is not called as a witness, provided specific conditions are met. For example, the document must have been made in the course of a business or public duty, before any dispute arose, and by someone with personal knowledge or access to reliable information.
This becomes particularly significant in areas like traffic enforcement. In speeding or red light camera cases, prosecution often relies on certificates signed by police commissioners or authorised officers stating that a device was operating correctly at a given time. These certificates are, by their nature, hearsay, the person signing them often has no direct knowledge of the events. Despite this, legislation such as the Transport Operations (Road Use Management) Act 1995 (Qld) allows these certificates to be admitted as evidence. This is a clear example of statutory documentary hearsay being accepted in place of live testimony.
Nevertheless, this raises legitimate concerns. Because these certificates are usually presented without the maker being called to give evidence, defendants are deprived of the chance to test the claims through cross-examination. Moreover, such documents often incorporate information gathered from various unnamed individuals, resulting in multiple levels of hearsay. This further weakens the reliability and transparency of the evidence.
Courts remain cautious in how they assess the weight of documentary hearsay. Even where it is admissible under statute, the court may give it little evidentiary weight if the surrounding circumstances cast doubt on its reliability, or if admitting it would result in unfairness. This is particularly important in criminal and quasi criminal contexts, where the burden of proof rests with the prosecution.
Foundational High Court cases such as Coco v The Queen (1994) and Plenty v Dillon (1991) reinforce the principle that statutes should not be interpreted to abrogate fundamental common law rights such as the right to a fair hearing, unless the legislative intent is clear and unmistakable. These cases highlight the judiciary’s ongoing responsibility to protect procedural fairness, even in the face of statutory shortcuts.
While documentary hearsay has gained ground through legislative exceptions and is now commonly relied upon in many areas of law, its use must be carefully scrutinised. The admission of such evidence should never be allowed to override the principles of fairness, transparency, and the right to challenge evidence that lies at the heart of a just legal system.
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