In evaluating a public interest immunity claim under s 130 of the Evidence Act 2008 (Vic) in the context of a criminal appeal, the court will assess the potential assistance of the material not only to the existing grounds of appeal but also to counterfactual arguments (such as applications to exclude evidence that might have been made at trial). Where such counterfactual arguments had no real prospect of success under the law applicable at the relevant time, the assistance is slight and the balance favours non-disclosure.
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