Where a witness statement is admitted by agreement between the parties, the trial judge is not at liberty to reject the evidence it contains without putting the parties on notice and affording them an opportunity to address the matter. A trial judge's departure from agreed facts without notice constitutes a denial of procedural fairness and may occasion a substantial miscarriage of justice. A lay witness's statement that an act 'was an accident' is an inference drawn from circumstances rather than a perception based on the five senses, and is therefore inadmissible under s 78 of the Evidence Act 2008. The Victorian Court of Appeal has signalled that the approach of [name withheld] in R v [name withheld] to s 78 lay opinion evidence is to be doubted, preferring the narrower approach of [name withheld] as endorsed in [name withheld] v R.
The full text is available to signed-in members, including the 4 later cases that cite this judgment.
2 of the 4 citing cases carry a classified treatment. How each court treated it is available to signed-in members.