67. Notice to be given

67. Notice to be given

(1) Sections 63(2), 64(2) and 65(2), (3) and (8) do not apply to evidence adduced by a party unless that party has given reasonable notice in writing to each other party of the party's intention to adduce the evidence.

(2) Notices given under subsection (1) are to be given in accordance with any regulations or rules of court made for the purposes of this section.

(3) The notice must state-

(a) the particular provisions of this Division on which the party intends to rely in arguing that the hearsay rule does not apply to the evidence; and

(b) if section 64(2) is such a provision - the grounds, specified in that provision, on which the party intends to rely.

(4) Despite subsection (1), if notice has not been given, the court may, on the application of a party, direct that one or more of those subsections is to apply despite the party's failure to give notice.

(5) The direction-

(a) is subject to such conditions (if any) as the court thinks fit; and

(b) in particular, may provide that, in relation to specified evidence, the subsection or subsections concerned apply with such modifications as the court specifies.

In DPP v Easwaralingam & Anor [2010] VSC 437 the Supreme Court, undertaking a judicial review of a magistrate's decision to refuse to admit an unavaialable witness's statement in a criminal case because of lack of sufficient notice, declined to provide a blanket statement of what might comprise reasonable notice.

Pagone J [at 18]:

18 Putting that matter to one side, however, the learned Magistrate was in error in concluding that the notice had not been served within a reasonable time or had not given sufficient detail of the matters which were required to be provided by the legislation. Section 67(1) requires that reasonable notice be given of a party’s intention to adduce the evidence. What constitutes reasonable notice is something which must depend upon all of the circumstances of the case. In this case notice of an intention to rely upon the written statement was given to the accused’s legal representatives promptly as soon as the unavailability of the witness became known. Section 67(3) provides that the notice must state “the particular provisions” of the division “on which the party intends to rely in arguing that the hearsay rule does not apply to the evidence”. In this case the written notice formally served on 24 February 2010, but reliance upon which was conceded to have been conveyed on 23 February 2010, identified s 65 as the section upon which reliance was placed and, on page 2 of the notice, there was express statement of an intention to rely upon s 65(2)(a) or (b) or (c) or (d), s 65(3)(a) or (b) or 65(8)(a) or (b). Some of these provisions may not have sustained the application but there was asserted the provisions on which reliance was placed. Her Honour’s conclusions to the contrary were not sustainable.

Also see the discussion at s 63 of the more flexible approach taken to the serving of notice in civil cases.