For the purposes of clause 2(2) of Schedule 2 to the Evidence Act 2008 (Vic), a 'hearing in the proceeding' ends when the jury is discharged, and a new hearing commences when the accused is re-arraigned; accordingly, the new Act applies to the new hearing even though the proceeding commenced before the commencement day. A witness who refuses to testify after being subpoenaed, called, and warned of contempt consequences is 'not available to give evidence' under clause 4(1)(f), even where the witness indicates conditional willingness to testify at a future date, if the conditions are uncertain and the trial cannot reasonably be delayed. Availability is a question of fact and degree, and an appellate court should not intervene unless error is clearly established.
The full text is available to signed-in members, including the 15 later cases that cite this judgment.