Victorian Consolidated Legislation

Evidence Act 2008 - SECT 66

Exception-criminal proceedings if maker available

66. Exception-criminal proceedings if maker available



(1) This section applies in a criminal proceeding if a person who made a
previous representation is available to give evidence about an asserted fact.

(2) If that person has been or is to be called to give evidence, the hearsay
rule does not apply to evidence of the representation that is given by-

   (a)  that person; or

   (b)  a person who saw, heard or otherwise perceived the representation
        being made-

if, when the representation was made, the occurrence of the asserted fact was
fresh in the memory of the person who made the representation.

(2A) In determining whether the occurrence of the asserted fact was fresh in
the memory of a person, the court may take into account all matters that it
considers are relevant to the question, including-

   (a)  the nature of the event concerned; and

   (b)  the age and health of the person; and

   (c)  the period of time between the occurrence of the asserted fact and the
        making of the representation.

Note Subsection (2A) was inserted as a response to the decision of the High
Court of Australia in Graham v The Queen (1998) 195 CLR 606.

(3) If a representation was made for the purpose of indicating the evidence
that the person who made it would be able to give in an Australian or overseas
proceeding, subsection (2) does not apply to evidence adduced by the
prosecutor of the representation unless the representation concerns the
identity of a person, place or thing.

(4) A document containing a representation to which subsection (2) applies
must not be tendered before the conclusion of the examination in chief of the
person who made the representation, unless the court gives leave.

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