Where a complainant in a sexual offences trial has died and their police statements and committal evidence are admitted under s 65(3) of the Evidence Act 2008 (Vic), the probative value of that evidence is to be assessed at its highest under IMM v The Queen, and the danger of unfair prejudice from the inability to cross-examine may be ameliorated by expert evidence on memory reliability and appropriately firm judicial directions. The incompetence of committal cross-examination does not of itself create unfair prejudice warranting exclusion under s 137, provided the accused had a reasonable opportunity to cross-examine. The Haddara discretion is reviewed on House v The King principles and will not be exercised where the s 137 balancing does not favour exclusion.
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