Exception: criminal proceedings if maker available
66 Exception: criminal proceedings if maker available
This section applies in a criminal proceeding if a person who made a previous representation is available to give evidence about an asserted fact.
If that person has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by:
that person; or
a person who saw, heard or otherwise perceived the representation being made;
if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation.
In determining whether the occurrence of the asserted fact was fresh in the memory of a person, the court may take into account all matters that it considers are relevant to the question, including:
the nature of the event concerned; and
the age and health of the person; and
the period of time between the occurrence of the asserted fact and the making of the representation.
Subsection (2A) was inserted as a response to the decision of the High Court of Australia in Graham v The Queen (1998) 195 CLR 606.
If a representation was made for the purpose of indicating the evidence that the person who made it would be able to give in an Australian or overseas proceeding, subsection (2) does not apply to evidence adduced by the prosecutor of the representation unless the representation concerns the identity of a person, place or thing.
A document containing a representation to which subsection (2) applies must not be tendered before the conclusion of the examination in chief of the person who made the representation, unless the court gives leave.
Clause 4 of Part 2 of the Dictionary is about the availability of persons.
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