57Provisional relevance

57 Provisional relevance (1) If the determination of the question whether evidence adduced by a party is relevant depends on the court making another finding (including a finding that the evidence is what the party claims it to be), the court may find that the evidence is relevant— (a) if it is reasonably open to make that finding; or (b) subject to further evidence being admitted at a later stage of the proceeding that will make it reasonably open to make that finding. S. 57(2) amended by No. 63/2014 s. 7(12). (2) Without limiting subsection (1), if the relevance of evidence of an act done by a person depends on the court making a finding that the person and one or more other persons had, or were acting in furtherance of, a common purpose (whether to effect an unlawful conspiracy or as part of involvement in the commission of an offence or otherwise), the court may use the evidence itself in determining whether the common purpose existed. 1 Subsection (2) differs from section 57(2) of the Commonwealth Act and New South Wales Act. 2 Subdivision (1) of Division 1 of Part II of the **Crimes Act 1958** deals with complicity in commission of offences. 58 Inferences as to relevance (1) If a question arises as to the relevance of a document or thing, the court may examine it and may draw any reasonable inference from it, including an inference as to its authenticity or identity. (2) Subsection (1) does not limit the matters from which inferences may properly be drawn. Part 3.2—Hearsay Division 1—The hearsay rule 59 The hearsay rule—exclusion of hearsay evidence (1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation. (2) Such a fact is in this Part referred to as an *asserted fact*. (2A) For the purposes of determining under subsection (1) whether it can reasonably be supposed that the person intended to assert a particular fact by the representation, the court may have regard to the circumstances in which the representation was made. Subsection (2A) was inserted as a response to the decision of the Supreme Court of New South Wales in R v Hannes (2000) 158 FLR 359. 1 The Commonwealth Act and New South Wales Act include another subsection. 2 Specific exceptions to the hearsay rule are as follows— • evidence relevant for a non-hearsay purpose (section 60) • first-hand hearsay— • civil proceedings, if the maker of the representation is unavailable (section 63) or available (section 64) • criminal proceedings, if the maker of the representation is unavailable (section 65) or available (section 66) • contemporaneous statements about a person's health etc. (section 66A) • business records (section 69) • tags and labels (section 70) • electronic communications (section 71) • Aboriginal and Torres Strait Islander traditional laws and customs (section 72) • marriage, family history or family relationships (section 73) • public or general rights (section 74) • use of evidence in interlocutory proceedings (section 75) • admissions (section 81) • representations about employment or authority (section 87(2)) • exceptions to the rule excluding evidence of judgments and convictions (section 92(3)) • character of and expert opinion about an accused (sections 110 and 111). Examples to s. 59 amended by No. 68/2009 s. 97(Sch. item 55.10). **Examples** 1 D is the accused in a sexual assault trial. W has made a statement to the police that X told W that X had seen D leave a night club with the victim shortly before the sexual assault is alleged to have occurred. Unless an exception to the hearsay rule applies, evidence of what X told W cannot be given at the trial. 2 P had told W that the handbrake on W's car did not work. Unless an exception to the hearsay rule applies, evidence of that statement cannot be given by P, W or anyone else to prove that the handbrake was defective. 3 W had bought a video cassette recorder and written down its serial number on a document. Unless an exception to the hearsay rule applies, the document is inadmissible to prove that a video cassette recorder later found in D's possession was the video cassette recorder bought by W.