1Under the Dictionary to the Evidence Act 2008 (Vic), Part 2, cl 4(1)(f), the threshold for unavailability in s 65(1) requires 'all' reasonable steps to have been taken to find the witness or secure attendance; a series of diligently undertaken reasonable steps is insufficient if obvious further reasonable steps remain untaken.
2On the facts, reasonable steps not taken included lawfully monitoring the witness's known mobile phone, surveillance of the witness or known associates, inquiries of Centrelink where the witness was known to receive payments, lawful monitoring of bank accounts, and seeking a warrant from the court under s 194 to apprehend the witness.
3Where the unavailability threshold in s 65(1) is not met, it is unnecessary to determine a s 137 objection that the probative value of the recorded evidence is outweighed by the danger of unfair prejudice; the court left that issue undetermined.
