Victorian Consolidated Legislation

Evidence Act 2008 - SECT 65

Exception-criminal proceedings if maker not available

65. Exception-criminal proceedings if maker not available



(1) This section applies in a criminal proceeding if a person who made a
previous representation is not available to give evidence about an asserted
fact.

(2) The hearsay rule does not apply to evidence of a previous representation
that is given by a person who saw, heard or otherwise perceived the
representation being made, if the representation-

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

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





   (d)  was-

   (i)  against the interests of the person who made it at the time it was
        made; and

   (ii) made in circumstances that make it likely that the representation is
        reliable. Note Section 67 imposes notice requirements relating to this
        subsection.

(3) The hearsay rule does not apply to evidence of a previous representation
made in the course of giving evidence in an Australian or overseas proceeding
if, in that proceeding, the defendant in the proceeding to which this section
is being applied-

   (a)  cross-examined the person who made the representation about it; or

   (b)  had a reasonable opportunity to cross-examine the person who made the
        representation about it.

Note Section 67 imposes notice requirements relating to this subsection.

(4) If there is more than one defendant in the criminal proceeding, evidence
of a previous representation that-

   (a)  is given in an Australian or overseas proceeding; and

   (b)  is admitted into evidence in the criminal proceeding because of
        subsection (3)-

cannot be used against a defendant who did not cross-examine, and did not have
a reasonable opportunity to cross-examine, the person about the
representation.

(5) For the purposes of subsections (3) and (4), a defendant is taken to have
had a reasonable opportunity to cross-examine a person if the defendant was
not present at a time when the cross-examination of a person might have been
conducted but-

   (a)  could reasonably have been present at that time; and

   (b)  if present could have cross-examined the person.

(6) Evidence of the making of a representation to which subsection (3) applies
may be adduced by producing a transcript, or a recording, of the
representation that is authenticated by-

   (a)  the person to whom, or the court or other body to which, the
        representation was made; or

   (b)  if applicable, the registrar or other proper officer of the court or
        other body to which the representation was made; or

   (c)  the person or body responsible for producing the transcript or
        recording.

(7) Without limiting subsection (2)(d), a representation is taken for the
purposes of that subsection to be against the interests of the person who made
it if it tends-

   (a)  to damage the person's reputation; or

   (b)  to show that the person has committed an offence for which the person
        has not been convicted; or

   (c)  to show that the person is liable in an action for damages.





(8) The hearsay rule does not apply to-

   (a)  evidence of a previous representation adduced by a defendant if the
        evidence is given by a person who saw, heard or otherwise perceived
        the representation being made; or

   (b)  a document tendered as evidence by a defendant so far as it contains a
        previous representation, or another representation to which it is
        reasonably necessary to refer in order to understand the
        representation.

Note Section 67 imposes notice requirements relating to this subsection.

(9) If evidence of a previous representation about a matter has been adduced
by a defendant and has been admitted, the hearsay rule does not apply to
evidence of another representation about the matter that-

   (a)  is adduced by another party; and

   (b)  is given by a person who saw, heard or otherwise perceived the other
        representation being made.

Note Clause 4 of Part 2 of the Dictionary is about the availability of
persons.