The inability to cross-examine the maker of a statement admitted under s 65 of the Evidence Act 2008 (Vic) may be taken into account in the s 137 weighing exercise, but does not of itself establish unfair prejudice. Where a sentencing judge reaches a clear and unhesitating view on the balance of probabilities that an offender does not suffer from intellectual impairment or mental disorder, the judge is not required to order a Forensicare assessment before declining to apply Verdins principles.
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