When assessing probative value under s 137 of the Evidence Act 2008 (Vic), the capacity of hearsay evidence to support the account of another prosecution witness (particularly a co-offender whose evidence will attract reliability warnings) must be taken into account and may render the evidence of substantial probative value even where the hearsay evidence does not directly implicate the accused. The inability to cross-examine an unavailable witness is a relevant consideration under s 137 but the danger of unfair prejudice from that inability can ordinarily be addressed by jury directions. Under s 65(2)(c), the reliability assessment must be confined to the circumstances in which the representation was made and cannot take into account other evidence that merely tends to confirm the truth of the asserted fact.
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