DPP v Nicholls  VSC 397 clarified that unavailable in relation to a witness means something more than just not in court. It was already apparent from the definition in the Dictionary of the Evidence Act 2008, but Nicholls confirmed it.
What does available mean?
Singh v The Queen  VSCA 263 is an interlocutory, mid-trial reference to the Court of Appeal to decide a question of admissibility. The complainant in a sex trial claimed no memory of events themselves or of statements she made about the alleged assault the following day. The Crown wanted the statements admitted. On the interlocutory it was argued on behalf of the accused that the hearsay (getting others to recount the statements she had made but could not recall) should not be admissible under s 66 because the maker could not give evidence of the asserted facts (because she has no recollection of them).
Section 66 is an exception to the general prohibition on hearsay. It reads,
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.
There’s an inviting logic to the defence submission. If the maker of a statement is in court and ready to give evidence, but can’t give any evidence in relation to the statement, there’s a real forensic disadvantage being handed to the accused. The witnesses giving the hearsay can’t be cross-examined in any meaningful way because they’ll shrug their shoulders and agree that they don’t know whether what they were told is true or not. This was always going to happen. But when the complainant gives evidence she’ll also be unable to comment on the accuracy of her own previous statements.
Some might think that it’s good for the accused’s prospects of acquittal that no Crown witness actually substantiates the hearsay allegations. But, particularly before a jury, the fact that there is a prosecution version of events before the court that has not – and cannot – be properly tested is problematic.
This might be grounds to argue for the exclusion of the evidence under ss 135 or 137. But before getting to that the actual admissibility of the evidence as hearsay has to be decided. The Court of Appeal found that whether a witness is available to give evidence about an asserted fact is determined by whether the witness meets any of the criteria at cl 4 of Part 2 of the Act’s Dictionary:
4 Unavailability of persons
(1) For the purposes of this Act, a person is taken not to be available to give evidence about a fact if-
(a) the person is dead; or
(b) the person is, for any reason other than the application of section 16 (Competence and compellability-judges and jurors), not competent to give the evidence about the fact; or
(c) it would be unlawful for the person to give evidence about the fact; or
(d) a provision of this Act prohibits the evidence being given; or
(e) all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or to secure his or her attendance, but without success; or
(f) all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success; or
(g) the person is mentally or physically unable to give evidence and it is not reasonably practicable to overcome that inability.
(2) In all other cases the person is taken to be available to give evidence about the fact.
The Crown argued, and the Court accepted, that if the witness did not meet any of the criteria of unavailability then she was available. Sub-clause (2) appears fairly conclusive on this point.
Almond AJA (at 13, Buchanan and Bongiorno JA agreeing):
Counsel for the Crown submitted that as none of the sub-categories set out in clause 4(1)(a)-(g) apply to the circumstances of this case, clause 4(2) is therefore engaged and the complainant is taken to be available to give evidence about the relevant fact. This, it was submitted, provides a complete answer to the applicant’s submissions.
In Papakosmas, the condition that the complainant be available to give evidence about an asserted fact was fulfilled as the complainant herself gave evidence that she did not consent to an act of sexual penetration. In the circumstances of that case, it was not necessary for the Court to focus on the meaning of the statutory expression ‘is available to give evidence about an asserted fact’, nor was it necessary for the Court to consider the operation of clause 4 of the Dictionary in the Act. In my opinion, the decision in Papakosmas cannot determine the answer to the question which arises for decision in this case.
I accept the submission of counsel for the Crown that clause 4(2) is a complete answer to the applicant’s submission. Unless one of the categories of unavailability in clause 4(1) is established, a person is taken to be available to give evidence about the fact by operation of clause 4(2). The applicant did not fall within any of the categories of unavailability. I note that this point does not appear to have been argued below.
The reference to freshness of memory in s 66 relates to at the time of the making of the statement, not at the time of giving evidence.
Almond AJA [at 16]:
Counsel for the applicant further submitted that the occurrence of the ‘asserted fact’ cannot be fresh in the memory for the purposes of s 66(2) of the Act, if the person has no memory of the relevant fact.
Counsel for the Crown countered that the occurrence of the asserted fact was fresh in the memory of the complainant because the representations were made within hours of the alleged incident. The issue in this case is that the complainant later did not remember having made the representations.
I accept the submission put on behalf of the Crown. The section does not require the person who made the representations to remember having done so. It merely requires that the asserted fact was fresh in the memory of the person when the representation was made. In this case, the representations were made on the same day as the alleged rape. In my opinion, there was no error in the primary judge’s ruling that the asserted fact of sexual activity without consent would have been fresh in the mind of the complainant as required by the terms of s 66(2).
Counsel did press the (probably stronger) argument for exclusion under the Part 3.11 discretions. But the Court was satisfied that jury directions would overcome any unfairness, and didn’t identify any error by the trial judge.
Leave to appeal was refused.