Hearsay representations of a deceased eyewitness made in a signed police statement taken within hours of the event, and in a video walk-through re-enactment the following day, may satisfy both ss 65(2)(b) and (c) of the Evidence Act 2008 (Vic) where the witness made spontaneous contemporaneous statements consistent with the later account, had no motive for fabrication, and observed the events in clear conditions. An inaccurate estimate of distance by the witness does not rationally bear on whether the representations were made in circumstances making fabrication unlikely. The prejudice from inability to cross-examine a deceased witness can be substantially alleviated by detailed judicial directions including cautions against relying on demeanour in video re-enactments.
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