165. Unreliable evidence

165. Unreliable evidence

(1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence-

(a) evidence in relation to which Part 3.2 (hearsay evidence) or 3.4 (admissions) applies;

(b) identification evidence;

(c) evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like;

(d) evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding;

(e) evidence given in a criminal proceeding by a witness who is a prison
informer;

(f) oral evidence of questioning by an investigating official of a defendant that is questioning recorded in writing that has not been signed, or otherwise acknowledged in writing, by the defendant;

(g) in a proceeding against the estate of a deceased person-evidence adduced by or on behalf of a person seeking relief in the proceeding that is evidence about a matter about which the deceased person could have given evidence if he or she were alive.

(2) If there is a jury and a party so requests, the judge is to-

(a) warn the jury that the evidence may be unreliable; and

(b) inform the jury of matters that may cause it to be unreliable; and

(c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.

(3) The judge need not comply with subsection (2) if there are good reasons
for not doing so.

(4) It is not necessary that a particular form of words be used in giving the warning or information.

(5) This section does not affect any other power of the judge to give a
warning to, or to inform, the jury.

(6) Subsection (2) does not permit a judge to warn or inform a jury in
proceedings before it in which a child gives evidence that the reliability of the child's evidence may be affected by the age of the child. Any such warning or information may be given only in accordance with section 165A(2) and (3).

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34. Attempts to revive memory out of court

34. Attempts to revive memory out of court

(1) The court may, on the request of a party, give such directions as are appropriate to ensure that specified documents and things used by a witness otherwise than while giving evidence to try to revive his or her memory are produced to the party for the purposes of the proceeding.

(2) The court may refuse to admit the evidence given by the witness so far as it concerns a fact as to which the witness so tried to revive his or her memory if, without reasonable excuse, the directions have not been complied with.

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33. Evidence given by police officers

33. Evidence given by police officers

(1) Despite section 32, in any criminal proceeding, a police officer may give evidence in chief for the prosecution by reading or being led through a written statement previously made by the police officer.

(2) Evidence may not be so given unless-

(a) the statement was made by the police officer at the time of or soon after the occurrence of the events to which it refers; and

(b) the police officer signed the statement when it was made; and

(c) a copy of the statement had been given to the person charged or to the person's Australian legal practitioner or legal counsel a reasonable ime before the hearing of the evidence for the prosecution.

Note

Paragraph (c) differs from the Commonwealth Act and New South Wales Act.

(3) A reference in this section to a police officer includes a reference to a person who, at the time the statement concerned was made, was a police
officer.

Section 33 is a provision that facilitates the giving of police evidence. It does not dispose of the issues raised in McKinney v R (1991) 171 CLR 468 about the inherent difficulties of challenging police evidence and the caution that much of it should be treated with, particularly admissions.

This provision will not assist with the admission of evidence which is not admissible either because of an exclusionaary rule or in the exercise of judicial discretion.

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32. Attempts to revive memory in court

32. Attempts to revive memory in court

(1) A witness must not, in the course of giving evidence, use a document to try to revive his or her memory about a fact or opinion unless the court gives leave.

(2) Without limiting the matters that the court may take into account in deciding whether to give leave, it is to take into account-

(a) whether the witness will be able to recall the fact or opinion adequately without using the document; and

(b) whether so much of the document as the witness proposes to use is, or is a copy of, a document that-

(i) was written or made by the witness when the events recorded in it were fresh in his or her memory; or

(ii) was, at such a time, found by the witness to be accurate.

(3) If a witness has, while giving evidence, used a document to try to evive his or her memory about a fact or opinion, the witness may, with the leave of the court, read aloud, as part of his or her evidence, so much of the document as relates to that fact or opinion.

(4) The court is, on the request of a party, to give such directions as the court thinks fit to ensure that so much of the document as relates to the proceeding is produced to that party.

Kaye J considered the operation of s 32(3) in the trial of DPP v Curran (Ruling No 2) [2011] VSC 250. While s 192 gives general direction as to the exercise of discretion, the section itself is silent on the considerations a court should consider in whether to grant leave to allow a witness to read their statement aloud. Without deciding, Kaye J appeared to apply a test similar to s 135, that of overall fairness to the accused.

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