Section 65(6) of the Evidence Act 2008 (Vic) is a machinery provision only and does not confer a freestanding discretion to admit evidence; the admissibility of committal evidence of unavailable witnesses is governed by s 137 and the common law unfairness discretion. Where committal evidence is highly probative and the defence can introduce evidence of a witness's criminal antecedents without the witness's presence, the danger of unfair prejudice may be assessed as low. The question whether a trial judge has power to excuse a competent and compellable witness from giving evidence on the basis of fear, absent specific statutory authority, remains open.
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