A representation made five days after the asserted fact is unlikely to fall within the 'shortly after' requirement of s 65(2)(b) of the Evidence Act 1995 (Cth). The phrase 'shortly after' is principally concerned with excluding concocted evidence, not merely ensuring freshness of memory, and requires that statements be made spontaneously during or under the proximate pressure of the occurrence. Under s 65(2)(c), a trial judge must consider all the circumstances in which the representation was made — including the maker's motives and position — not merely the internal consistency of the statement with other evidence. Where a juror has overheard prejudicial information about an accused's criminal record and there is no proof that other jurors did not also overhear it, the risk of serious prejudice may be so great that no direction can cure it, requiring discharge of the jury.
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