The discretion under s 116(2) of the Criminal Procedure Act 1986 to exclude a prescribed written statement of a deceased witness requires consideration of all the circumstances, including eight identified factors. The primary ground for exclusion is that admission would render the trial unfair by placing the accused at a great disadvantage that cannot be adequately counterbalanced. The quality of the evidence is a major but not the sole factor. The question whether the common law discretion to exclude evidence to ensure a fair trial survives the Evidence Act 1995 was expressly left open.
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