EVIDENCE ACT 1995 - SECT 66
Exception: criminal proceedings if maker available
EVIDENCE ACT 1995 - SECT 66
Exception: criminal proceedings if maker available
66 Exception: criminal proceedings if maker available
(1) This section
applies in a criminal proceeding if a person who made a previous
representation is available to give evidence about an asserted fact.
(2) 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:
(a) that
person, or
(b) 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.
(2A) 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:
(a) the nature of the event concerned, and
(b) the age and health of the
person, and
(c) the period of time between the occurrence of the asserted
fact and the making of the representation.
Note : 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 .
(3) 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.
(4) 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.
Note : Clause 4 of
Part 2 of the Dictionary is about the availability of persons.
