A complainant who has no memory of the events or of making representations is nonetheless 'available to give evidence about an asserted fact' under s 66(1) of the Evidence Act 2008 (Vic) by operation of cl 4(2) of the Dictionary, provided none of the specified categories of unavailability in cl 4(1) apply. The 'fresh in the memory' requirement in s 66(2) is assessed at the time the representation was made, not at the time of trial, and does not require the maker to have any present recollection. Papakosmas v The Queen does not determine the availability question where the complainant lacks memory, as that issue did not arise in Papakosmas.
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