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) 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.
The
Dictionary provides that an
asserted fact is defined at
sub-s 59(1).Evidence admissible under this section may nevertheless excluded in the exercise of discretion, notably
s 137. In
R v Suteski [2002] NSWCCA 509 it was held the trial judge properly admitted the record of interview of a co-accused who was not available to be called as a witness. The Court of Appeal held that the forensic disadvantages to the accused were appropriately considered and had not caused unfair prejudice. The recording was tendered with a transcript provided as an aide.
The Victorian Court of Appeal first considered an interlocutory appeal from the County Court in
R v Darmody [2010] VSCA 41. The prosecutor sought and was granted leave by the trial judge to lead evidence from the committal hearing after the Crown witness refused to give evidence at trial, apparently under intimidation. The Court found that
clause 4(1)(f) of
Pt 2 of the
Dictionary was satisfied in that,
All reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success.
The appeal upheld the trial judge's decision to allow the evidence under
s 65. The Court confirmed that discretion to exclude under
s 137 existed but determined that, in this case, the probative value was not outweighed by the prejudicial effect.
In
DPP v B B; DPP v Q N [2010] VSCA 211 the trial judge admitted a dead man's statement under
s 65(3) but then rejected the evidence in exercise of discretion under
s 137. The following reasons were given [related in the appeal, at 10]:
... the combination of effective inability to fully explore cross-examination because of pressure from the magistrate and lack of clarity as to the actual responses to cross-examination because of the difficulty raised by the interpreter, together with the inability of the jury to see the witness in my view, is properly to be characterised as unfair prejudice.
The Court of Appeal held these grounds were insufficient in the circumstances, either alone or in combination.
Bongiorno JA [at 16, Harper and Hansen JJA also agreeing]:
16 In enacting s 65(3) in the form it is, the legislature placed alternative primary conditions on its application. Those conditions require that the accused has either cross-examined the relevant witness in an earlier proceeding about the ‘previous representation’ of which hearsay evidence is sought to be adduced or he had a reasonable opportunity of doing so. The legislature clearly anticipated a situation where hearsay would be rendered admissible by s 65(3) even where there was, in fact, no cross-examination at a previous proceeding of the relevant witness ...
17 Section 65(3) is not the first Victorian statutory provision which permitted prior depositions to be tendered as evidence at trial. Section 55AB of the Evidence Act 1958, which has since been repealed, provided for the use of depositions taken at committal in a subsequent trial where a witness was unavailable. The conditions for use of such a deposition against an accused under that provision were that the accused must have been present when the deposition was taken and he (or his lawyer) must have had a full opportunity of cross-examining the witness. This section, in substance, if not in form, can be traced back, at least, to the Justices Act 1890 in this State and appears to have had its origin in the Indictable Offences Act 1848 (UK) (Jervis’s Act), the first English provision which introduced the statutory exception to the hearsay rule rendering a deposition admissible at trial if a witness was unavailable for certain specific reasons set out in the statute. It could be argued that the substitution of the word ‘reasonable’ in the current Evidence Act for the word ‘full’ in earlier legislation compels a conclusion that the legislature intended the qualifying condition for admissibility to be now less onerous than it was before.
In a judicial review of the dismissal of charges from the Magistrates' Court, the Supreme Court ruled that the magistrate had wrongly refused to admit evidence under >section 65 (as an exception to the hearsay rule) after a complainant had sucessfully objected under
section 18 to giving evidence against her
de facto partner:
DPP v Nicholls [2010] VSC 397.
In the similar case of
DPP v Easwaralingam & Anor [2010] VSC 437 the Supreme Court declined to provide a blanket statement of what might comprise reasonable notice under
s 67. The prosecution's principal witness was hospitalised shortly before the hearing. On judicial review, the Court ruled the magistrate had gone about the process of declining the adjournment and refusing to admit the witness's statement under s 65.
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