A third trial may be permanently stayed as an abuse of process where the cumulative effect of the accused's intellectual disability, PTSD from domestic abuse by the co-offender, prolonged criminal proceedings (nine years), wrongful imprisonment, and the discontinuance of charges against the primary co-offender renders the continuation of proceedings unfairly and unjustifiably oppressive, even where a fair trial remains possible. Hearsay representations in a forensic psychologist's reports recording a history given by the accused are admissible under s 60 of the Evidence Act 2008 for the non-hearsay purpose of establishing the factual basis for the expert's opinions, and may then be used to prove the truth of the facts asserted, but may be excluded under s 135 where the prosecution cannot test the truth of the assertions and the accused has given contradictory accounts. The question whether the interlocutory appeal provisions in s 295(3) of the Criminal Procedure Act 2009 extend to rulings on admissibility of evidence that do not concern the prosecution case was left open.
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