The Council of the New South Wales Bar Association v Franklin

The Council of the New South Wales Bar Association (the applicant) sought an advance ruling from the Court of Appeal of New South Wales regarding the admissibility of certain transcripts of evidence from a criminal trial involving Mr. Franklin (the respondent). The applicant intended to tender these transcripts as hearsay evidence in proceedings before the Bar Association.

The primary legal issue before the Court was whether the hearsay rule, as modified by section 64 of the *Evidence Act 1995* (NSW), applied to the transcripts. Specifically, the Court had to determine if the conditions for admitting hearsay evidence under section 64(2) were met, given that the maker of the statements in the transcripts was available to be called as a witness, and whether the applicant had complied with the notice requirements under section 67 of the Act. The Court also considered the effect of the respondent not lodging a written objection to the tender of the evidence.

The Court, in allowing the application, reasoned that section 64(2) of the *Evidence Act 1995* (NSW) permits the admission of hearsay evidence where the maker of the statement is available to be called as a witness, provided that the court is satisfied that the person who made the statement is dead, unfit, or it would be unreasonable to require the person to attend. However, the Court found that the applicant had not established these conditions. Instead, the Court applied section 68 of the Act, which allows for the admission of hearsay evidence if the party intending to adduce the evidence has given reasonable notice of that intention, and no other party has given a written objection to the tender of the evidence. The Court found that the applicant had provided sufficient notice and that the respondent had not lodged a written objection, thus rendering the hearsay rule inapplicable to the documents in question.

The Court ruled that the hearsay rule does not apply to the documents referred to in the Schedule to the reasons of Meagher JA and ordered that the costs of the applicant's motion be costs in the cause.