The threshold test in s 295(3)(a) of the Criminal Procedure Act 2009 (Vic) requires that the evidence be of such significance that its exclusion would eliminate or substantially weaken the prosecution case; evidence that is merely helpful or powerful for the prosecution but not foundational to the case will not meet this threshold. Trial judges must give concise but adequate reasons when certifying under s 295(3)(a). Where the Court of Appeal disagrees with the trial judge's assessment of the significance of the evidence, this will bear heavily on the discretion to refuse leave to appeal.
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