Section 65 of the Evidence Act 2008 provides an exception to the hearsay rule where the maker of a representation is unavailable. We’ve discussed the scope of that word here before. This post concentrates on the previous court proceedings exception:
65. Exception – criminal proceedings if maker not available
(1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.
(3) The hearsay rule does not apply to evidence of a previous representation made in the course of giving evidence in an Australian or overseas proceeding if, in that proceeding, the defendant in the proceeding to which this section is being applied-
a) examined the person who made the representation about it; or
(b) had a reasonable opportunity to cross-examine the person who made the representation about it.
Section 67 imposes notice requirements relating to this subsection.
(4) If there is more than one defendant in the criminal proceeding, evidence of a previous representation that-
(a) is given in an Australian or overseas proceeding; and
(b) is admitted into evidence in the criminal proceeding because of subsection (3)-
cannot be used against a defendant who did not cross-examine, and did not have a reasonable opportunity to cross-examine, the person about the representation.
(5) For the purposes of subsections (3) and (4), a defendant is taken to have had a reasonable opportunity to cross-examine a person if the defendant was not present at a time when the cross-examination of a person might have been conducted but-
(a) could reasonably have been present at that time; and
(b) if present could have cross-examined the person.
(6) Evidence of the making of a representation to which subsection (3) applies may be adduced by producing a transcript, or a recording, of the representation that is authenticated by-
(a) the person to whom, or the court or other body to which, the representation was made; or
(b) if applicable, the registrar or other proper officer of the court or other body to which the representation was made; or
(c) the person or body responsible for producing the transcript or recording.
In DPP v B B; DPP v Q N  VSCA 211 the witness was indisputably unavailable – he was deceased. The trial judge ruled the dead man’s statement complied with s 65(3) but then rejected it in the exercise of discretion under s 137.
The trial judge gave these reasons [recounted in the appeal, at 10]:
… the combination of effective inability to fully explore cross-examination because of pressure from the magistrate and lack of clarity as to the actual responses to cross-examination because of the difficulty raised by the interpreter, together with the inability of the jury to see the witness in my view, is properly to be characterised as unfair prejudice.
The Court of Appeal held these grounds were insufficient to enliven the discretion in the circumstances, either alone or in combination.
Bongiorno JA [at 16, Harper and Hansen JJA also agreeing]:
16 In enacting s 65(3) in the form it is, the legislature placed alternative primary conditions on its application. Those conditions require that the accused has either cross-examined the relevant witness in an earlier proceeding about the ‘previous representation’ of which hearsay evidence is sought to be adduced or he had a reasonable opportunity of doing so. The legislature clearly anticipated a situation where hearsay would be rendered admissible by s 65(3) even where there was, in fact, no cross-examination at a previous proceeding of the relevant witness …
17 Section 65(3) is not the first Victorian statutory provision which permitted prior depositions to be tendered as evidence at trial. Section 55AB of the Evidence Act 1958, which has since been repealed, provided for the use of depositions taken at committal in a subsequent trial where a witness was unavailable. The conditions for use of such a deposition against an accused under that provision were that the accused must have been present when the deposition was taken and he (or his lawyer) must have had a full opportunity of cross-examining the witness. This section, in substance, if not in form, can be traced back, at least, to the Justices Act 1890 in this State and appears to have had its origin in the Indictable Offences Act 1848 (UK) (Jervis’s Act), the first English provision which introduced the statutory exception to the hearsay rule rendering a deposition admissible at trial if a witness was unavailable for certain specific reasons set out in the statute. It could be argued that the substitution of the word ‘reasonable’ in the current Evidence Act for the word ‘full’ in earlier legislation compels a conclusion that the legislature intended the qualifying condition for admissibility to be now less onerous than it was before.
The Court apparently concluded that the exercise of the discretion under s 137 would thwart the will of Parliament in introducing s 65. If that argument had general application to the Evidence Act it would make the discretions in it next to useless. Perhaps in a situation as specific as this one there is more justification for this kind of reasoning.