The inability to cross-examine a deceased complainant at trial does not necessarily render the trial unfair, even in a rape case where consent is the sole issue and the complainant is the only witness to the alleged offending. Section 65(3) of the Evidence Act 2008 (Vic) contemplates the admission of such evidence, and a defendant's failure to avail themselves of the opportunity to cross-examine at committal cannot by itself require exclusion. Appropriate judicial directions can ameliorate the prejudice arising from the jury's inability to see and hear the complainant give evidence.
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