Welcome to the Evidence Act 2008

This blog was started back when the Evidence Act 2008 was nothing more than a gleam in Parliament's eye. It was an attempt to further understanding of some challenging new legislation when information about it was difficult to find.

Since then, many authors and luminaries have turned their minds to the complex issues the Act obliges Victorian lawyers to engage with. A blog devoted exclusively to this one piece of legislation isn't necessary, and is impossible for us to give the attention it deserves.

If you're looking for a more conventional blog posting on topical legal issues, have a look at Quis Custodiet Ipsos Custodes? by the same authors.

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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.


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.


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

The Dictionary provides that an asserted fact is defined at sub-s 59(1).

This provision is the most similar to the pre-UEA common law principles previously known as evidence of first complaint or evidence of recent complaint in sex offences. (Also see s 377 of the Criminal Procedure Act 2009 in relation to sexual offences where the witness is under 18).


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