Representations framed as questions, explanations, or invitations in the context of a conversation initiated by the person against whom they are tendered may not constitute hearsay under s 59 of the Evidence Act 2008 (Vic), because it cannot reasonably be supposed that the maker intended to assert the fact sought to be proved. Section 66A does not apply where the maker's knowledge is relevant only to prove the asserted fact rather than being itself a fact in issue. The 'circumstances' relevant to s 65(2)(c) are primarily the objective circumstances at the time the representation was made.
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