Test a business record against the hearsay exception
Key facts
- Human involvement
- YellowClose supervision
- How AI is used
- From the document and the lawyer's note of where it came from, fill a table with only these facts: whether the document is, or once was, part of the records of a person, body or organisation kept in the course of or for a business; whether it contains a previous representation made or recorded in the course of or for that business; whether the representation was made by a person who had, or might reasonably be supposed to have had, personal knowledge of the asserted fact, or on information supplied directly or indirectly by such a person; and whether the representation was prepared or obtained for a proceeding, or made in connection with an investigation relating or leading to a criminal proceeding. For this table, personal knowledge means knowledge based on what the person saw, heard or otherwise perceived, other than another person's representation about the fact. If the question is the absence of a record, record only whether a business system of recording every event of that kind is described in the file. Leave every conclusion blank.
- What the lawyer must review
- The lawyer decides whether section 69 of the Evidence Act 1995 (Cth) means the hearsay rule does not apply. Subsection (3) is the proceeding and investigation carve-out. Subsection (4) is a separate rule about proof that no record was kept. The table is not that decision. The note to the section says section 182 gives it a wider application for Commonwealth records; section 182 is not applied here. This task is not the device-or-process presumption, and it does not state a state or territory evidence Act.
- Written for / version
- US
Open a jurisdiction version of this task to see which instruments apply: US
Who does what
| Role | What they do |
|---|---|
| Assistance | From the document and the lawyer's note of where it came from, fill a table with only these facts: whether the document is, or once was, part of the records of a person, body or organisation kept in the course of or for a business; whether it contains a previous representation made or recorded in the course of or for that business; whether the representation was made by a person who had, or might reasonably be supposed to have had, personal knowledge of the asserted fact, or on information supplied directly or indirectly by such a person; and whether the representation was prepared or obtained for a proceeding, or made in connection with an investigation relating or leading to a criminal proceeding. For this table, personal knowledge means knowledge based on what the person saw, heard or otherwise perceived, other than another person's representation about the fact. If the question is the absence of a record, record only whether a business system of recording every event of that kind is described in the file. Leave every conclusion blank. |
| Lawyer | Set the scope, supervise the work closely, verify every part relied on, resolve omissions and exceptions, and approve the exact output. |
Checklist
- Do not treat a printout presumption as this hearsay question. They are different sections.
- Copy the proceeding and investigation carve-out as facts. Do not decide that the carve-out is avoided.
- Do not apply section 182. The lawyer opens it before any Commonwealth-record widening is used.
- Do not describe this section as the rule in a state or territory that has its own evidence Act.
Sources
These are suggested working checks. Confirm the required checking with the responsible lawyer before work starts; the checking approach does not establish permission to use AI.