Is hearsay evidence admissible in an Australian Federal court if the conditions and/or methods that are used to obtain that evidence are not disclosed to, or are unable to be ascertained by, a defendant or a defence lawyer; if not, why not.

The Evidence Act 1995 (Cth) applies to proceedings in an Australian federal court. The relevant State and Territory evidence laws generally apply in State and Territory courts exercising federal jurisdiction.

The rules on hearsay evidence for proceedings in an Australian federal court are contained in Part 3.2 of the Evidence Act. The Part establishes the general rule against the use of hearsay evidence and then sets out a number of specific exceptions to the rule.

Generally, there is no requirement, in admitting hearsay evidence, for a court to require disclosure of the circumstances in which that evidence was obtained.

However, the court may need to consider the circumstances in which the prior representation (the hearsay evidence) was made. For example, under subsection 65(2) of the Evidence Act, in a criminal proceeding where the person who made the representation is unavailable, the court is required to consider whether:

(a)   the representation was made under a duty to make that representation or to make representations of that kind; or

(b)   the representation was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication; or

(c)   the representation was made in circumstances that make it highly probable that the representation is reliable; or

(d)   the representation was against the interests of the person who made it at the time it was made.

Rulings on the admissibility of evidence are matters to be determined by the court.

Part 3.11 of the Evidence Act gives the court discretion to exclude evidence even if that evidence would otherwise be admissible. This includes discretion to exclude improperly or illegally obtained evidence.