The Court held that spontaneous comments made by an accused with an Acquired Brain Injury to police at the scene of an altercation were admissible as admissions under s 85(2) of the Evidence Act 2008 (Vic), where no expert evidence was adduced establishing a connection between the ABI and the reliability of the statements, and the comments were made spontaneously, not in custody, and not in response to questioning. The Court further held that the probative value of the comments on the issue of self-defence was not outweighed by the danger of unfair prejudice under s 137, noting that appropriate jury directions could address any risk. The ruling underscores that bare assertions of an ABI from the Bar table, without supporting medical or expert evidence addressing its impact on truthfulness, will be insufficient to engage the protective operation of s 85(2).
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