Bray (A Pseudonym) v The Queen [2014] VSCA 276

EVIDENCE - Hearsay rule - Exceptions - Criminal proceedings - Maker of previous representation not available - Deceased complainant - Statement to police - Cross-examined at committal - Whether police statement admissible - Whether committal transcript admissible - Whether accused had 'reasonable opportunity to cross-examine' - Whether probative value outweighed by danger of unfair prejudice - Common law discretion to exclude - Whether judge erred in not excluding evidence as unfair to accused - Haddara v The Queen [2014] VSCA 100 - Criminal Procedure Act 2009 s 295(3)(a) - Evidence Act 2008 ss 65(2)(b), 65(3), 137.

1 I have had the advantage of reading in draft the reasons for judgment of Santamaria JA. For the reasons which his Honour gives, I too would refuse leave to appeal.

3 The applicant is currently on trial in the County Court at Melbourne charged with rape. The complainant had made a statement to the police, and gave evidence at the committal hearing. She was cross-examined at that hearing. However, she died before the matter came on for trial.

4 In pre-trial argument, the prosecution applied to have the complainant's statement, and a transcript of the evidence she gave at committal, admitted into evidence. The prosecution relied upon s 65(2)(b) and s 65(3) of the Evidence Act 2008 ('the Act') as the basis for the admissibility of the statement, and transcript, respectively.

5 The trial judge granted the application. In doing so, she rejected an argument on behalf of the accused that, in both cases, she should exclude the evidence on the ground that 'its probative value [was] outweighed by the danger of unfair prejudice to the accused' within the meaning of s 137 of the Act.

6 Originally, the applicant confined his submission to that section. On 27 May 2014, however, this Court published its reasons in Haddara v The Queen.[2]

Subsequently, the applicant has also contended that the trial judge erred in refusing to exclude the evidence in the exercise of the general unfairness discretion specifically recognised and explained in Haddara.

7 The applicant has given notice under s 295 of the Criminal Procedure Act 2009 that he wishes to appeal against that interlocutory decision on each of these two separate bases. In both cases, the trial judge who made the interlocutory decision has given a certificate under s 295(3) of the Criminal Procedure Act 2009.

8 For the reasons that follow, the application for leave to appeal should be dismissed.

9 On 20 October 2010, the applicant and the complainant were at the apartment of a mutual acquaintance, IA, who was also present. So too was IA's friend, LF. Late that evening, an incident occurred whereby the applicant is alleged to have anally raped the complainant while she was using the lavatory.

10 On the following morning, at about 9.15am, the complainant told her social worker, MH, that she had been anally raped the previous night. MH subsequently collected the complainant from IA's apartment and took her to the Royal Women's Hospital. At the Centre Against Sexual Assault at the hospital, the complainant provided an account of the alleged rape to a Detective Senior Constable. Subsequently, the complainant was examined by a doctor.

11 Police obtained CCTV footage from IA's apartment complex for the evening of 20 October 2010 and the morning of the following day.

12 The complainant made a statement to police about the matter. That statement to police is the subject, in part, of the impugned ruling.

13 The applicant was arrested by police. On the following day he participated in a record of interview in which he denied any sexual contact between himself and the complainant. On that same day, he was charged with the offence of rape and remanded in custody.

14 Over a two day period, the matter proceeded as a contested committal in the Melbourne Magistrates' Court. The complainant and IA both gave evidence. The applicant was committed for trial.

15 For reasons that are not readily apparent, the matter was not listed for trial until 6 May 2013. The trial did not proceed on that date, as the complainant was unavailable. A new trial date was set for later in the year.

16 On 19 May 2013, the complainant died of pneumonia. Her death was unrelated to the applicant or the alleged offending.

17 Pre-trial argument took place before a judge in the County Court. The prosecution applied to tender the complainant's police statement and the transcript of her committal evidence pursuant to s 65(3) of the Act.[3] As previously indicated, the applicant opposed the admission of that evidence, albeit at that stage solely on the basis of s 137 of the Act.[4]

18 The prosecution indicated that, pursuant to s 65(2) of the Act, it would seek to rely on the evidence of IA as to previous representations made to him by the complainant. However, subsequently, IA recanted some of that evidence, and the issue of its admissibility is now of no importance so far as this proceeding is concerned.

19 A judge in the County Court ruled in relation to the argument heard on 9 July 2013 ('Ruling No 1').[5] She ruled that the evidence of the complainant, in the form of a representation which she had made to her social worker and which was contained in her police statement, was admissible pursuant to s 65(2)(b).[6] She further ruled that her committal cross-examination was admissible pursuant to s 65(3). She rejected the applicant's submission that the probative value of the evidence was outweighed by the danger of unfair prejudice.

20 The prosecution filed a notice of incriminating conduct pursuant to s 23 of the Juries Directions Act 2013. The prosecution sought to rely upon some of the answers contained in the applicant's record of interview with police, and a telephone call allegedly made by the applicant to IA, as incriminating conduct.

21 The trial commenced before another judge in the County Court. IA said that he wished to recant some of his committal evidence and the jury was discharged.

22 A further voir dire commenced in respect of IA's evidence. Eventually, the prosecution indicated that it no longer proposed to rely upon the evidence of IA as it did not consider him to be a witness of truth.

23 The matter was refixed for trial. Counsel for the applicant applied to have the trial judge revisit Ruling No 1. That application was made on the basis that circumstances had changed in that IA was now not being called as a prosecution witness, whereas at the time of the previous application it was anticipated that he would give evidence. The trial judge refused the application to revisit Ruling No 1 ('Ruling No 2').[7]

24 Counsel for the applicant then became aware of the decision of this Court in Haddara, and its potential significance in this case.

25 Counsel for the applicant made a further application before the trial judge to exclude the same evidence (being the complainant's police statement and her committal evidence) under the common law fairness discretion. That application was based entirely upon Haddara. It too was refused ('Ruling No 3').[8]

26 Immediately thereafter, counsel for the applicant sought certification, pursuant to s 295(3)(a) of the Criminal Procedure Act 2009, of Ruling No 1 and Ruling No 3 by the trial judge.[9] That application was granted and both rulings were certified.

27 The applicant, through his solicitors, filed with the Court of Appeal Registry a notice of application for leave to appeal against the interlocutory decisions of 26 August 2013 (Ruling No 1) and 3 June 2014 (Ruling No 3).

28 In making Ruling No 1, the trial judge distinguished what she called 'committal evidence' from 'complaint evidence'. She referred to them as follows:

Firstly, [the complainant's] committal evidence which included the adoption of her juratted [sic] police statement made 24 October 2010. I shall refer to this evidence as the complainant's "committal evidence" or "committal representations" hereafter.

Secondly, representations made by the complainant to others following the alleged offence which the Crown would seek to rely on as complaint evidence. For convenience, I may refer to such evidence from time to time as "complaint evidence" but I do so without having predetermined whether all or any of the representations under this category have qualified as such.[10]

29 The 'others' included MH, Dr S and the Detective Senior Constable.

30 The trial judge, then, summarized the statement that the complainant had made to the police, in which she gave details of having been anally raped on 20 October 2010 at 11.30pm.[11] Her Honour then summarized the evidence that the complainant had given at the committal.[12]

31 Having examined various authorities relating to ss 65 and 137 of the Act, the trial judge said:

[84] I now turn to the matter before me, bearing in mind the submissions, principles previously referred to and the evidence to which I have just referred with the remarks that I have made in running as to various aspects of inconsistency.

[85] Although it is apparent that the complainant was consuming alcohol on the night in question, it also appears to be the case that she was a seasoned drinker. Having viewed the CCTV footage, it appears to me that she was walking steadily when entering the apartment building, which is at a time before the alleged offence. Although her gait is ambling in nature in the CCTV footage taken once she is in the apartment building, it is not readily apparent to me that she is so significantly intoxicated that the details which she gives to police some four days later could be said to be so lacking in reliability as to undermine their probative worth. Indeed, she complains to her case worker only hours after the alleged incident that she has been raped, albeit that there is some inconsistency as to the actual words which she used to convey this. According to [MH], the complainant's support worker, the complainant told her she was raped last night in the backside and is currently bleeding. Whilst the complainant's recollection of what she said is somewhat inconsistent as between her police statement and committal evidence, it is not so great that it undermines the reliability of the complainant's allegation.

[86] Moreover, in her police statement, she gives a number of details with which the accused agrees in his defence response, and which are supported by forensic evidence, such as the accused anally penetrating her in the bathroom and there being blood which she tried to clean up.

[87] True it is that she mis-describes the clothing of her perpetrator and appears to describe the clothing and perhaps physical description of another person in the group; however, in circumstances where the complainant was affected by alcohol, had only met the accused that day, and on her account of the events in the bathroom had limited opportunity to observe the accused, her mis-description of the accused does not so undermine her reliability as to impact on its probative worth or the danger of unfair prejudice.

[88] Moreover, none of the other inconsistencies or conflicts in the evidence which have been highlighted by defence are of such a nature that individually or in combination with each other, or with the other matters to which I have just referred, would lead me to the view that the complainant's evidence of what she said took place is lacking in reliability to such an extent that its probative worth is outweighed by the danger of unfair prejudice to the accused.

[89] It is true that the accused is at a disadvantage because the complainant is no longer with us. However, opportunity was given at the committal hearing to canvass all relevant matters, and although it might be the case that this was not done, a good deal of ground was covered and this will be presented to the jury in audio recorded form. The jury will be given appropriate directions in keeping with the authorities to deal with the absence of the complainant, and defence will be able to make their arguments to the jury as to the complainant's credibility and reliability.

[90] While it may be that further inconsistencies may have been obtained from cross-examination of the complainant at trial, and there may have been an impact to the complainant's evidence by relevant footage, I am of the view that the evidence which will be presented to the jury, with the benefit of appropriate directions, will not cause unfair prejudice.

[91] At the committal hearing, the complainant gave an account which was consistent with her allegations that she had been anally raped. Defence counsel chose not to put to her that the accused sexually penetrated her anus without her consent. However, given the complainant's account at committal, one would expect that such puttage would not have helped defence. Indeed, there is an aspect of the cross-examination with reference to a condom which demonstrates this, in my view.

[92] Further, defence are not deprived of making submissions to the jury on the basis of the CCTV footage and what they submit it shows. With appropriate directions, in my view, there is not a danger that the complainant's evidence will be given a weight which it does not deserve.

[93] Assuming, as I must, the complainant's evidence is true, the probative value of it is significant, in my view, even allowing for the inconsistencies. The evidence could rationally affect the jury's assessment of the probability of the complainant being anally penetrated by the accused without her consent. There is other evidence which the Crown would look to in support of the complainant's allegation to which I have previously referred.

[94] Insofar as complaint evidence is sought to be relied upon by the Crown, I am of the view that the circumstances of the complainant making a complaint to [MH] (which I shall refer to as "the [MH] complaint evidence") are such that it makes it unlikely that she fabricated the allegation. The complainant was to go on an excursion the following day. There is nothing in the circumstances in which she complained to [MH] which would suggest that she was under pressure or in such a situation which might impel her to fabricate an allegation of rape.

[95] I have really dealt with matters which might go to the reliability of the complainant's evidence and I refer to and adopt the relevant aspects of these in relation to this particular piece of evidence.

[96] Therefore, I rule that the complaint evidence insofar as complaint to [MH] is concerned, is admissible pursuant to s65(2)(b) of the Evidence Act 2008, and the probative value of this evidence is not outweighed by any danger of unfair prejudice to the accused.

[97] However, although the ensuing complaints would qualify pursuant to s65(2)(b), I am of the view that the probative value is not of the same calibre as the [MH] complaint evidence. As [counsel] submitted, the further complaints were made in the context of a course of action being put in train, and as such, the probative value is somewhat diminished, such that I would exclude such evidence for use as complaint evidence by the Crown. However, the evidence can be adduced from [Dr S] as a basis for any medical opinion she gave rather than for use as complaint evidence, and I understand that the defence seek to rely on this other evidence for the purposes of alleged prior inconsistent statements.[13]

32 In the course of Ruling No 3, the trial judge said:

[3] I accept that the crossexamination at committal was not as thorough as it might have been at trial, but it was sufficient to cover the relevant matters in issue in this case such that it would not be unfair to adduce such evidence at trial. Nor do I consider the reading of the complainant's police statements into the evidence as productive of an unfair trial, or these matters in combination. Further, as I have previously said, the lack of opportunity to view the complainant giving evidenceinchief and crossexamination at trial, whilst putting the accused at some disadvantage, are not such as to warrant the exclusion of the complainant's evidence, if presented in tandem with appropriate directions to the jury.

[4] In my view, the accused can receive a fair trial for essentially the same reasons that I refused to exclude the complainant's evidence under s.137. A range of topics were covered in crossexamination of the complainant at the committal hearing. Relevant questions were asked as to the circumstances of the alleged offending and she gave responsive answers to those questions.

[5] I reject the assertion by [counsel for the defendant] that this is one of the most extreme examples imaginable of admitting evidence of an unavailable witness into a trial. It has been pointed out there is no bar to a complainant's evidence being so admitted and there are other cases where the sole witness or key witness to alleged serious offending is unavailable and yet the evidence of that witness has been admitted.

[6] I accept that each case must be assessed on its own circumstances, but in this case not only did defence have the chance to crossexamine the complainant, they did do so at committal and the crossexamination adequately dealt with the matters in issue. Whilst s.137 is a balancing exercise between probative value and the danger of unfair prejudice, assessment of the probative value of the complainant's evidence in terms of its reliability is not irrelevant to the exercise of my discretion at common law. This much has been conceded by [counsel for the defendant], as I understand his position.

[7] As previously ruled, inconsistencies in the complainant's evidence were not of such a nature as would lead me to the view that her evidence was so lacking in reliability that it ought to have been excluded pursuant to s.137 because of its lack of probative value when compared with the danger of unfair prejudice. As previously stated, the complainant made a timely complaint to [MH] and to the police that the accused had anally raped her and there was physical evidence which supported her account insofar as anal penetration was concerned.

[8] Further, at a time when DNA results were not available the accused denied to police that he anally penetrated the complainant which will be relied upon by the Crown as an implied admission. Subsequently the accused, through his defence response, accepts that he anally penetrated the complainant but asserts that this was consensual.

[9] In all the circumstances, and largely for the reasons canvassed in respect of my ruling in August of last year concerning s.137, I am not of the view that the complainant's evidence ought be excluded in order for the accused to receive a fair trial and I refuse defence's application.[14]

33 The applicant, no doubt concerned to avoid, if possible, the need to overcome the sizeable difficulty associated with challenging on appeal an exercise of judicial discretion, submitted that the rulings under attack in this case should not be approached in accordance with House v The King[15] principles.

34 In that regard, the applicant submitted that this Court should not follow its earlier decision in McCartney v The Queen.[16] There it was held that an appeal against conviction, arising from a refusal by a trial judge to exclude evidence under s 137 of the Act, did not involve House reasoning. However, the Court in that case, citing KJM v The Queen (No 2),[17] went on to say that the position would be different in relation to an interlocutory appeal. The case for appellate restraint at the interlocutory appeal stage was said to be even stronger in this State than in New South Wales[18] because the system of interlocutory appeals here extended to allow a defendant to seek to challenge evidentiary rulings by way of such appeal.

35 The applicant submitted that this Court should decide the s 137 question for itself as:

(a) There will be minimal live or viva voce evidence in the trial, and none concerning the evidence the subject of the s 137 argument.

(b) The trial evidence will not change from that which is available for review now, and the position of the Court of Appeal now will be identical to the position on appeal against conviction after trial.

36 Alternatively, the applicant submitted that, if House[19] was to apply, it had not been open to the trial judge to find, as she did, that the probative value of the complainant's evidence was significant, given the inconsistencies contained in the evidence and the fact that the judge was not in a position to make any direct assessment of the complainant as a witness.

37 It was further submitted that the probative value of this evidence was reduced by the fact that the jury would not see the complainant give her evidence so as to be able 'to make a proper assessment [as to] whether the inconsistencies [we]re superficial or material to the question of reliability'.

38 Finally, the applicant submitted that because the trial judge had not conducted 'a sufficient assessment of the danger of unfair prejudice', the balancing exercise to be performed pursuant to s 137 of the Act had miscarried. In identifying the 'particular features of the disadvantage' to which the applicant had been subjected, counsel referred to the submissions which had been made before the trial judge and repeated before this Court.

39 In elaborating upon the contention that the trial judge ought to have excluded the evidence under s 137 of the Act, the applicant also referred to the submissions made below to the effect that the assessment of probative value necessarily involves considerations of reliability. He referred to Dupas v The Queen.[20] In doing so, he pointed to what were said to be several inconsistencies in the complainant's evidence (as well as evidence that was contradicted by CCTV footage) as to (a) the amount of alcohol that she had consumed on the night in question, (b) the events leading up to her entering into the apartment where the alleged rape took place, (c) the events that occurred in the apartment, (d) what she had said to MH, and (e) the alleged rape. In those submissions, the applicant had also argued that there would be unfair prejudice arising from the way in which cross-examination had been conducted at the committal. For example, the complainant was not confronted with the CCTV footage, including some that showed the complainant and the applicant hugging and apparently kissing while in the elevator on the way up to the apartment. In addition, the complainant was not cross-examined at all regarding the details of the alleged sexual activity, thereby, so it was said, depriving the accused of an opportunity to challenge her account, and to put the defence case to the complainant in the presence of the jury.

40 The applicant also referred to another part of the submissions he had made before the trial judge, which was in these terms:

The present case is one of the most extreme examples imaginable of admitting evidence of an unavailable witness into the trial, the features being:

(a) A rape trial where the witness is the complainant;

(b) The issue is consent;

(c) The witness is the primary and only witness to the matter in issue;

(d) There are no other witnesses being called in the trial that are capable of giving evidence relevant to the matter of the credibility or truthfulness of the witness.

(e) The allegations were not properly tested at committal, nor was there sufficient cross-examination to bear upon the jury's assessment of the complainant's credibility as a witness.

It is submitted that to admit the evidence of the complainant in its current form would create an unfair trial of the accused for the following reasons -

(a) The jury would never see or hear the complainant giving her account of the events alleged.

(b) The only version of the events alleged would be delivered to the jury in the form of the prosecutor reading out the statement the complainant made to police which was typed into a computer by a police officer. This may be a faithful account of events told to police by the complainant, but if delivered to the jury in this form, the jury has no sufficient way of assessing whether it was a truthful account given.

(c) The accused would be deprived of the opportunity to test or challenge the evidence through cross-examination. Cross-examination is the long standing method by which evidence is tested in the adversarial criminal trial process.

(d) The above factors would deprive the jury of the ability to make a proper assessment of the complainant's credibility as a witness and the truthfulness of the evidence the subject of the allegations.

(e) It is submitted that this is not curable by direction because a jury could only be warned, at best, against the danger of placing too much weight on other evidence such as the complaint evidence and the denial in the record of interview. The jury could not be warned to take account of the inability to make an assessment of the complainant as a witness, and they could not be warned to take account of cross-examination not conducted.

(f) Whilst the jury would be given standard directions that they can accept some parts of a witness's evidence and reject other parts, this direction would be meaningless in the current situation. The jury would only hear the account as a whole, not provided by the complainant, untested and unchallenged. The jury would be left in the position where they either accept or reject the account, but there is no practical opportunity to assess it with sufficient nuance or complexity, no opportunity to accept some parts and reject others.

(g) Frequently witnesses at trial give evidence that is consistent in some regards with their statements or committal evidence and inconsistent with other parts. This is a standard way in which a jury may assess the credibility of the witness and the truthfulness of their account, and determine whether they accept some or all of the evidence.

41 The applicant submitted that because the jury would not have an opportunity to see and hear the complainant, there was a significant danger that too much weight would be accorded to her evidence. In particular, there was a real risk that the jury would be unduly influenced 'by emotional considerations, such as a perceived unlikelihood of consensual anal sex occurring in such circumstances'. The applicant submitted that '[s]ome aspects of this danger are amenable to directions, but others are not'.

42 In relation to s 137 of the Act, the applicant submitted that the trial judge erred in viewing the opportunity to cross-examine at committal as being relevant to the consideration of the danger of unfair prejudice under s 137. The cross-examination was very limited, as was perhaps to be expected, and there was no cross-examination whatsoever about the events inside the bathroom. Counsel said:

(a) The opportunity to cross-examine at committal should not be seen as an opportunity that is either exhausted or waived, and if waived, then that fact imported into the assessment of the danger of unfair prejudice. It is submitted that the fact of cross-examination at committal is not itself determinative either way, and the assessment of whether there is a danger of unfair prejudice in the trial must be made on an objective assessment of the evidence, as it stands, at trial.

(b) It is submitted that any legislative intent expressed in s 65 relates to the operation of the Hearsay rule as an exclusionary rule and should not be imported to the considerations under s 137.

43 The applicant also referred to his submissions made in support of his application to reopen Ruling No 1. That application resulted, as I have said, in Ruling No 2.[21] The application was made pursuant to s 204 of the Criminal Procedure Act 2009. It was prompted by the decision of the prosecution not to call IA as a witness in the trial. IA had been a witness to several of the events which had occurred on the night in question. He had been cross-examined at the committal, subsequent to the cross-examination of the complainant. The applicant submitted that the disadvantage associated with now not being able to cross-examine the complainant had been exacerbated by the decision that had been taken not to call IA. It was IA, after all, who had been with the complainant before the alleged rape, and had been drinking alcohol with her. In addition, IA was present in the apartment just before the alleged rape occurred and he was also present immediately thereafter.

44 With respect to Ruling No 3, the applicant accepted that House[22] principles were applicable. However, he contended that the trial judge had erred in finding that the cross-examination that took place at committal had been sufficient to cover the relevant matters in issue, and that she had also erred 'in taking into consideration the alleged incriminating conduct in her assessment of the unfairness'.

45 Finally, the applicant submitted before this Court that the trial judge:

[S]eems to take the view that the initial denial of the accused to police that penetration occurred, and the subsequent concession by the defence that penetration occurred mitigates the unfairness to admit the evidence of the Complainant in its current form.

46 He further submitted that this was an irrelevant consideration, and vitiated the trial judge's exercise of the power under s 137, and pursuant to the unfairness discretion.

47 The respondent submitted that this Court should follow its earlier decision in McCartney[23] unless convinced that it was plainly wrong. It was noted that McCartney was recently considered, and followed, by the Court in CV v Director of Public Prosecutions.[24]

48 The respondent further submitted that the trial judge had correctly applied the principles in Dupas[25] when she engaged in the balancing exercise required by s 137.[26] She had assessed the effect of alcohol upon the complainant, bearing in mind (a) her tolerance for alcohol, (b) the CCTV footage, (c) the complainant's statement to the police, and (d) the complainant's representations to MH. She had taken into account the extent to which the complainant's statement was consistent with independent forensic evidence and her statement to MH. She had also taken into account the fact that the applicant had participated in a record of interview in which he had denied having had intercourse with the complainant.

49 The respondent also submitted that the trial judge had taken into account the inconsistencies between the complainant's statement and her evidence at committal, as well as further inconsistencies between her statement, her evidence at committal, and what she told the Detective Senior Constable and the examining doctor. However, despite these inconsistencies, the complainant was firm about how the penetration took place, that it was non-consensual and that bleeding occurred as a result. The trial judge considered that all of these matters could be 'adequately exposed before the jury in the trial'.

50 The respondent contended that the trial judge had properly addressed the issue of 'unfair prejudice'. She had considered the fact that the complainant was not 'thoroughly' cross-examined at the committal, particularly as to the circumstances in which intercourse had taken place. The trial judge found that the manner of cross-examination at committal was explained by legitimate forensic decisions taken by counsel for the applicant.

51 The respondent submitted that 'defence counsel now impermissibly relies on the discretion to exclude the complainant's evidence when she could have been cross-examined on these issues at the committal'. It was true that the complainant could now not be cross-examined at trial. However, the trial judge had noted that, although this was a factor to be taken into account when assessing unfair prejudice, it could never be determinative as unavailable witnesses are 'by definition never available for cross-examination at trial'. She considered that any prejudice arising from the inability to cross-examine the complainant at trial could be minimised by appropriate directions. She had referred, in that regard, to Director of Public Prosecutions v BB and QN.[27]

52 The respondent submitted that it had been open to the trial judge to conclude that the probative value of the evidence outweighed the danger of unfair prejudice and she had correctly approached the task mandated by s 137 of the Act.

53 As regards the decision below, not to call IA as a witness, it was submitted that, at the application to re-open the initial ruling, the applicant had based his case on s 137 rather than on the residual common law discretion. The trial judge had not mentioned IA's statements, and the evidence he gave at committal, in her ruling. There was nothing to suggest that these matters had played any part in the reasoning which led to Ruling No 1. No interlocutory appeal had been brought against Ruling No 2. Further, no reference whatever had been made to IA prior to Ruling No 3.

54 In conclusion, the respondent submitted that the same considerations that supported the trial judge's reasons in relation to Ruling No 1 also vindicated Ruling No 3.

55 In oral submissions, counsel for the applicant accepted that the complaint's evidence satisfied the criteria in s 65(2)(b) of the Act, and that the committal evidence satisfied the criteria for admissibility in s 65(3) of the Act. His principal contention was that, given the gravity of the charge, and the fact that the defence to that charge was consent, it was critical to a fair trial that the jury not only heard the complainant give her account of what took place, but also saw how she held up under cross-examination. Without hearing her give that evidence, there was a clear danger that the applicant would be unfairly prejudiced because the jury would be unable to make a fair and proper assessment of the critical issue in this trial.

56 It was once again submitted, before this Court, that the cross-examination of the complainant at the committal had been perfunctory at best. The cross-examination was as follows:

1. Okay, I know this is going to be difficult now. I'm going to ask you some questions about what happened in the bathroom?

1. All right. So before you went into the bathroom were there any conversations about condoms that you --- ?
2. No. Condoms?
3. Yes?
4. What for? [IA] is a - is a friend of [LF], [LF] and I we go years back, and then these two kids and I. So, I won the game, so I said to him it's your time to shuffle, and 'excuse me, I'm going, you know, to have a piss', if you like, excuse the language, and there I go to the bathroom, yes, and ---
5. And what I want to ask you about is while you're in the bathroom did anyone else - so [the applicant] came in; that's correct?
6. Yes.
7. Okay, and then did anyone else come into the bathroom while you're in the bathroom?
8. Oh no, just him. I thought he was hanging out just like I was.
9. Yes?
10. So I said, ah yeah, I'm nearly finished, give me a second, kind of thing, because he was undoing his - his ---
11. So after that happened and before [the applicant] left the bathroom did anyone else walk in, did anyone else come in?
12. No.
13. All right?
14. Not at all.
15. And [IA] didn't come in and have a conversation with [the applicant]?
16. No. No, in the bathroom?
17. Yes?
18. No, absolutely not, because I - I thought he is hanging out to go so - and I just say 'oh yeah, I'm almost finished', he goes to me he's just a kid, one of my kids kind of thing and I start to stand up.
19. All right. So while you're in the bathroom, so [the applicant] eventually left the bathroom, that's right, isn't it, he left and went out of the room back into the living room?
20. After?
21. After the incident happened between the two of you?
22. After the incident?
23. Yes?
24. Yeah, he went.
25. He went into the living room?
26. And I did not leave the bathroom at all.
27. Okay. How long do you say you were in the bathroom for?
28. I - I can't even tell you how long the incident took, and with all my screaming nobody can hear me and I know there is [LF], can't even - no, he wouldn't hear anything anyway. And there is [IA] and there's the young DJ playing music very loudly. My screams went unheard. Unless - unless which I believe that [IA] heard something and called the police.
29. Okay, so the police came, did they?
30. Yes, I - I never left the bathroom.

57 The cross-examination was certainly cursory. Apart from the passing reference to there having been a discussion about condoms, there was no exploration whatever as to the issue of consent. Counsel for the applicant submitted that no inference should be drawn about the failure to address that issue at the committal. At the very least, it could be said that counsel would have expected, legitimately, that the complainant would give her evidence at trial, and be cross-examined there.

58 Counsel for the respondent submitted, as the prosecutor had done below, that there was nothing, so far as the content of the complainant's evidence was concerned, in either her statement to the police, or at the committal, that made it inherently improbable, or cast any doubt at all upon its reliability. Moreover, there was abundant evidence that supported the complainant's account. The very notion that she would have engaged in consensual anal sex, in the toilet, in the manner suggested by the applicant, was fanciful.

59 In addition, the respondent submitted that the trial judge would be able to give appropriate directions which would minimise the danger of unfair prejudice arising from the inability of the jury to see and hear the complainant give her evidence, and be cross-examined upon it.

60 He submitted that this Court should approach the matter on the basis that House[28] principles were applicable. Otherwise, it would be usurping the jurisdiction of the trial court, as well as the jurisdiction of this Court when it hears and determines appeals against conviction.

61 Section 297 of the Criminal Procedure Act 2009 sets out the principles that govern interlocutory appeals in criminal matters. That section provides:

(1) Subject to subsection (2), the Court of Appeal may give leave to appeal against an interlocutory decision only if the court is satisfied that it is in the interests of justice to do so, having regard to -

(a) the extent of any disruption or delay to the trial process that may arise if leave is given; and

(b) whether the determination of the appeal against the interlocutory decision may -

(i) render the trial unnecessary; or

(ii) substantially reduce the time required for the trial; or

(iii) resolve an issue of law, evidence or procedure that is necessary for the proper conduct of the trial; or

(iv) reduce the likelihood of a successful appeal against conviction in the event that the accused is convicted at trial; and

(c) any other matter that the court considers relevant.

(2) The Court of Appeal must not give leave to appeal after the trial has commenced, unless the reasons for doing so clearly outweigh any disruption to the trial.

(3) If the Court of Appeal refuses leave to appeal under this section, the refusal does not preclude any other appeal on the issue that was the subject of the proposed appeal.

62 The applicant's submission that this Court should depart from its earlier decision in McCartney[29] should be rejected.[30] Apart from the question of its authority, there is much force in the submission made on behalf of the Crown that, when exercising its jurisdiction to hear and determine an interlocutory appeal, this Court should not make rulings on admissibility that would usurp the jurisdiction of the trial court and of this Court when it hears and determines appeals from the County Court.

63 In applying House[31] principles to an interlocutory appeal in a criminal matter, this Court has said that the task involves: 'an assessment as to whether the judge approached the question by reference to correct principles and whether it was open for him to draw the evaluative conclusion that was drawn'.[32]

64 In Peterson (a Pseudonym) v The Queen,[33] the Court said:

When a trial judge is asked to exclude evidence pursuant to s 137, in assessing probative value he or she must evaluate the weight that the jury rationally could attach to the impugned evidence. In so doing the judge is not required to assume that its reliability will be accepted. Resolution of the capacity of the evidence rationally to affect the determination of a fact in issue requires the judge to make some assessment of the weight that the jury could, acting reasonably, give to the evidence. If it be contended that the quality - or the frailties - of the evidence would result in the jury attaching more weight to the evidence than it deserves, the trial judge is required to assess the extent of the risk. But the trial judge is not required to gauge the weight that the jury will or would give to the evidence. Instead, the judge is obliged to assess what probative value the jury could give to the evidence, and balance against it the risk that the jury will give it disproportionate weight.[34]

65 In my opinion, it was open to the trial judge to rule, as she did, both in relation to s 137 of the Act, and in relation to the common law fairness discretion.

66 In Dupas,[35] the Court considered the application of s 137. It held that the application of that section involves a series of steps: first, an assessment of the probative value of the evidence; second, an assessment of the danger of unfair prejudice to the defendant; and, third, a weighing of the probative value of the evidence with any danger of such prejudice. If the latter outweighs the former, the court must refuse to admit the evidence.

67 In assessing the probative value of the evidence, it is necessary to assume its truthfulness, although not its reliability.

68 In considering 'unfair prejudice', the issue is not that the evidence may lead to conviction; rather the issue is whether the evidence may be misused.[36] The risk is that the jury may be distracted from its proper role and give particular evidence more weight than it deserves.[37]

69 In the present case, the trial judge clearly assessed the probative value of the evidence. It cannot be contended that her conclusion in that regard was not reasonably open. The complainant's evidence was clear. Undoubtedly, there were inconsistencies, but there was nothing about it that made it implausible. In addition, there were other indications of its reliability. Within a few hours of the alleged rape, the complainant had told MH that she had been raped. There was also DNA evidence to support her claim that she had been penetrated. And, the applicant had himself admitted that he had had anal intercourse with the complainant.

70 Moreover, the committal evidence was given by the complainant before a Magistrate in the expectation that she would be cross-examined on her police statement. It is not as though she was unresponsive to the questions directed to her, or gave an account of the incident which was inherently improbable. It was open to the trial judge to consider such inconsistencies as there were in her evidence to be peripheral and not destructive of her credibility. The fact that it is proposed, in a criminal proceeding, to lead hearsay evidence in the form of a previous representation made in the course of giving evidence in another proceeding will commonly raise the danger of unfair prejudice within the meaning of s 137 of the Act. However, in engaging in the balancing exercise under that section, it must be remembered that s 65(3) is a provision specifically directed to criminal proceedings.[38] It stipulates that one or other of two conditions must be satisfied for admissibility: either (a) the defendant in the criminal proceeding cross-examined the person who made the previous representation, or (b) the defendant had a reasonable opportunity to do so. In each case, the three step analysis contained in s 137 must be carried out. This means, first, an assessment of probative value, next an assessment of the danger of unfair prejudice, and lastly, the weighing process. The fact that a defendant chose not to avail himself or herself of the opportunity to cross-examine the maker of a representation cannot, by itself, mean that the evidence must be excluded. Such a principle would subvert the policy of the Act as manifested in the statutory exceptions to the hearsay rule.

71 In Ridgeway v The Queen,[39] McHugh J said:

Ordinarily, questions concerning unfairness to the accused in admitting evidence are dealt with under the general discretion of a judge in a criminal trial to exclude evidence whose probative value is outweighed by its prejudice to the accused's defence.[40]

72 Although he disavowed any such submission, counsel for the applicant at times seemed to argue that a trial for rape would necessarily be unfair, at least where consent was in issue, if the jury did not have the opportunity to see and hear the complainant give her evidence, and that no warning to the jury could properly address the danger of prejudice. Plainly, there can be no inflexible rule to that effect. Section 65(3) of the Act itself contemplates the very possibility that is said to be precluded by considerations of fairness. As counsel for the respondent pointed out, the section speaks of there being 'a reasonable opportunity to cross-examine'. It does not itself make relevant whether, or how, a defendant may have chosen to avail himself or herself of that opportunity.

73 It has long been understood that evidence that cannot be tested by cross-examination may nonetheless be led. The leading authorities are referred to below.

74 Parliament itself has lowered the barriers to the reception of hearsay evidence. Section 165 of the Act provides for the warnings that should be given in the case of unreliable evidence, which is defined to include hearsay evidence.[41]

75 The fact that there may have been deficiencies in the cross-examination of the complainant at a committal hearing cannot be determinative of whether a trial can be fairly conducted. The fairness of the trial is not a function of the forensic choices made at commital.

76 As I understand the position, there is in fact a recording of what the complainant said during the committal hearing. In that sense, the jury will hear her both examined-in-chief and cross-examined. The question is not whether the presentation of evidence in that truncated form is a satisfactory substitute for seeing and hearing the complainant give her evidence at trial. Plainly, it is not. The critical question is: would it be necessarily unfair to have a conviction based upon evidence which cannot be the subject of cross-examination at trial? That question admits of only one answer. It would not be necessarily unfair. As has been said many times, 'a defendant is entitled to a fair trial but not a perfect one'.[42]

77 On the question of fairness, it is necessary to see the complainant's evidence, as it would be presented to the jury, in the context of the trial as a whole. There is evidence of blood on the bathroom floor, as well as of injuries sustained by the complainant. There is also the fact that the applicant, in his defence response, has admitted a good deal of the prosecution case. He is still entitled, at trial, to explore questions of intoxication, the images shown on CCTV, and inconsistencies involving statements that the complainant made to other parties.

78 Importantly, the applicant did not refer to consent in his record of interview. That is significant given that the defence he now proposes to mount is consent. It follows that it is likely that he will have to give evidence. The jury will have the opportunity to assess his credibility in that regard.

79 A strong direction can ameliorate any unfairness at trial. That direction can deal with the inability to cross-examine the complainant, as well as the need to approach the matter in an objective and unemotional way.

80 There are a number of instances where convictions have been upheld notwithstanding the fact that important evidence has been adduced on behalf of the Crown without the defence having had any opportunity to cross-examine the witness(es) in question.

81 In R v Massie,[43] this Court dealt with an application for leave to appeal against conviction in which one of the grounds raised concerned the admissibility of evidence led pursuant to s 55AB of the Evidence Act 1958, which was then in force. That section provided that a deposition, and any exhibits mentioned in it, taken at a committal, could be used as evidence in the trial if the witness was, relevantly in that case, out of Victoria, and inter alia, the accused or his or her legal practitioner 'had a full opportunity of cross-examining the witness'. It was submitted, in reliance upon R v Collins,[44] that even though the relevant conditions set out in the section had been met, the trial judge should have excluded the evidence in the exercise of discretion. That submission was rejected, largely on the basis, it would seem, that defence counsel at trial had never taken the point.

82 In Sonnet v The Queen[45] the Court rejected criticism of a trial judge's warning to a jury arising from the fact that an important piece of evidence against the accused was a statement made by an alleged co-conspirator who had been cross-examined at the accused's committal hearing but had died before the trial. The Crown tendered the statements and transcript of the cross-examination pursuant to s 55AB of the Evidence Act 1958, which, at that time, relevantly provided that such evidence was admissible as long as the accused had had 'a full opportunity of cross-examining the witness' at the committal hearing.

83 There are a number of decisions, of high authority, to the same effect as Sonnet.[46]

84 Long before legislation in Victoria and the United Kingdom created exceptions to the hearsay rule, the common law allowed evidence of unavailable witnesses, given on oath, to be tendered in subsequent proceedings. Thus, in R v Hall,[47] Forbes J wrote that:

[W]e think it plain that a deposition properly taken before a magistrate on oath in the presence of the accused and where the accused has had the opportunity of cross-examination was at least since 1554 admissible at common law in criminal cases if the original deponent was dead, despite the absence of opportunity to observe the demeanour of the witness.[48]

85 In R v Cacic,[49] this Court observed that, even before Parliament had intervened, such evidence was admissible at common law:

[W]here the witness [wa]s dead or whose absence has been procured by the defendant or where he or she is too ill to travel, the depositions and transcripts of such evidence [were admitted], as an exception to the hearsay rule.[50]

86 It was noted, in Cacic, that ss 55AB and 55AC of the Evidence Act 1958 placed the common law exception, now found in s 65(3) of the Act, in statutory form, and had in-fact broadened it.[51]

87 In Director of Public Prosecutions v BB and QN,[52] Bongiorno JA noted that provisions in Victorian legislation could be traced back at least to the Justices Act 1890, which appeared to have had its origin in the Indictable Offences Act 1848 (UK).[53] He suggested, without deciding, that s 65(3) of the Evidence Act 2008 had loosened the pre-conditions for admission by substituting the word 'reasonable' for the word 'full' in the text of the relevant condition.[54]

88 In Scott v The Queen,[55] the issue in two separate appeals from Jamaica was whether sworn depositions of two deceased witnesses should have been admitted. The Privy Council observed, in both cases:

[T]he vital evidence of identification was that contained in the sworn depositions of the deceased witnesses. Without the evidence in the depositions there would have been insufficient evidence to put any of the defendants on trial.[56]

89 Legislation permitted such evidence to be led where a witness was dead, provided the statement was taken in the accused's presence (or the presence of his or her counsel) and that there was 'a full opportunity of cross-examining the witness'. The Privy Council held that 'the discretion of a judge to ensure a fair trial includes a power to exclude the admission of a deposition. It is, however, a power that should be exercised with great restraint'.[57] Lord Griffiths said:

The mere fact that the deponent will not be available for cross-examination is obviously an insufficient ground for excluding the deposition for that is a feature common to the admission of all depositions which must have been contemplated and accepted by the legislature when it gave statutory sanction to their admission in evidence. ... It will of course be necessary in every case to warn the jury that they have not had the benefit of hearing the evidence of the deponent tested in cross-examination and to take that into consideration when considering how far they can safely rely on the evidence in the deposition. No doubt in many cases it will be appropriate for a judge to develop this warning by pointing out particular features of the evidence in the deposition which conflict with other evidence and which could have been explored in cross-examination: but no rules can usefully be laid down to control the detail to which a judge should descend in the individual case.[58]

90 In Henriques v The Queen,[59] the Privy Council followed Scott. This was an appeal against conviction by two defendants found guilty of manslaughter. A pathologist's report, which was the subject of a deposition, was admitted at trial. In it, he expressed the opinion that the deceased had died from beating, not drowning. The pathologist was abroad, and not available to be cross-examined on the report at trial. The details of his report conflicted with the evidence of an eye witness who said that he had seen the attack occur.

91 The Privy Council held that, despite the trial judge having failed to direct the jury that the pathologist's report 'was not necessarily of the same weight as evidence which they had heard tested before them by cross-examination',[60] the accused had not suffered an 'injustice'.

92 Importantly for present purposes, Lord Jauncey of Tullichettle[61] said that:

When a judge allows deposition evidence to be admitted he should as a matter of course warn the jury that they have neither had the benefit of seeing the deponent nor of hearing his evidence tested in cross-examination and that they must take this into consideration when evaluating the reliability of his evidence.[62]

Their Lordships think it important that, if a judge in such circumstances refers to the lack of cross-examination of a deponent, he shall direct the jury that, in view of the many reasons which may exist for not cross-examining at that stage, no inference adverse to the accused shall be drawn.[63]

94 In R v Al-Khawaja,[64] the appellant, a physician who had been convicted of the indecent assault of two female patients, complained of the fact that a witness statement by one of them had been received at his trial. The patient in question had committed suicide prior to the commencement of the trial. The issue on appeal was whether the admission of her police statement, upon which there had been no cross-examination, was contrary to the accused's right under art 6(3)(d) of the European Convention for the Protection of Human Rights and Fundamental Freedoms scheduled to the Human Rights Act 1998.[65]

95 The Court of Appeal held that there had been no breach of the appellant's right to a fair trial. The ability to cross-examine the deponent was but one aspect of that right, and the question was 'whether the proceedings as a whole, including the way in which evidence was taken, were fair'.[66]

96 Importantly for present purposes, the Court of Appeal observed that, in any case involving a single witness whose evidence was of critical importance to the Crown, the inability to cross-examine the witness did not mean that the evidence must be excluded. On the contrary, the Court said there was a powerful public interest in ensuring that that evidence was received.[67]

97 It was important, in the Court's view, that the deceased had been the only witness against the appellant. Her evidence went directly to the commission of an indecent assault upon her by the accused.[68] It was noted that the defence could attack the accuracy of her statement through the testimony of other witnesses, and through expert evidence.[69] It was held that the trial judge had properly considered legislative provisions on the admission of such evidence in order to ensure the rights of the accused were protected. It was said that the jury could weigh the limitations of the evidence with appropriate directions.[70]

98 That case ultimately went on appeal to the European Court of Human Rights.[71] That Court held that there would be a breach of art 6(3)(d) of the Convention in cases where an accused was denied the opportunity to cross-examine, and where the evidence led was 'sole or decisive'.[72]

99 However, in R v Horncastle,[73] the Supreme Court of the United Kingdom affirmed the decision of the Court of Appeal in Al-Khawaja.[74] It declined to follow the decision of the European Court of Human Rights in that case. In doing so, it referred to the relevant English legislation, including the 'rigorous conditions for admissibility' of hearsay evidence outlined in the Criminal Justice Act 2003 (UK) and the 'provisions ... which enable the defence to test the credibility and reliability of the evidence'.[75]

100 The Supreme Court noted that its ruling accorded with the position in 'other established common law jurisdictions, namely Canada, Australia and New Zealand'.[76] In commenting on s 65(2) of the Evidence Act 1995 (Cth), the Court said that 'the scheme of the Australian statute is both nuanced and circumscribed, with a view to ensuring the overall fairness of the proceedings'.[77]

101 On the weight of authority, therefore, to lead evidence of the kind to be adduced in the present case will not necessarily render the trial unfair. Nor can it be said that its probative value is necessarily outweighed by its likely prejudicial effect. There are mechanisms available to ensure a fair trial, including the capacity of the trial judge to give appropriate and strong directions to the jury regarding the dangers of giving too much weight to untested statements.

102 For these reasons the ruling under challenge in this interlocutory appeal is not attended with sufficient doubt to warrant a grant of leave to appeal.

1. [1] To ensure that there is no possibility of identification of the individuals concerned, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

[2] [2014] VSCA 100 ('Haddara').

[3] Part 3.2 of the Evidence Act 2008 (Vic) is entitled 'Hearsay'. Division 1 of Part 3.2 is entitled 'The hearsay rule'. Section 59 contains the 'hearsay rule'. Section 59(1) provides:

(1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.

(2) Such a fact is in this Part referred to as an asserted fact.

Part 3.2 contains exceptions to the hearsay rule. Section 65 is entitled 'Exception - criminal proceedings if maker not available'. Section 65 provides:

(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.

(2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation -

(a) was made under a duty to make that representation or to make representations of that kind; or

(b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication; or

(c) was made in circumstances that make it highly probable that the representation is reliable; or

(i) against the interests of the person who made it at the time it was made; and

(ii) made in circumstances that make it likely that the representation is reliable.

(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 accused in the proceeding to which this section is being applied -

(a) cross-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.

[4] Section 137 provides:

Exclusion of prejudicial evidence in criminal proceedings

In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused.

[5] DPP v [Bray] [2013] VCC 1054 (Judge Cannon) ('Ruling No 1').

[6] The judge accepted that prior representations comprising complaints to Dr S and the Detective Senior Constable 'would qualify pursuant to s 65(2)(b)' but that she was 'of the view that the probative value is not of the same calibre as the [MH] complaint evidence'.

[7] DPP v [Bray] [2014] VCC 779 (Judge Cannon) ('Ruling No 2').

[8] DPP v [Bray] [2014] VCC 797 (Judge Cannon) ('Ruling No 3').

(1) This section applies to a proceeding in the County Court or the Trial Division of the Supreme Court for the prosecution of an indictable offence.

(2) Subject to this section, a party to a proceeding referred to in subsection (1) may appeal to the Court of Appeal against an interlocutory decision made in the proceeding if the Court of Appeal gives the party leave to appeal.

See the definition of interlocutory decision in section 3.

(3) A party may not seek leave to appeal unless the judge who made the interlocutory decision certifies -

(a) if the interlocutory decision concerns the admissibility of evidence, that the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case; and

(b) if the interlocutory decision does not concern the admissibility of evidence, that the interlocutory decision is otherwise of sufficient importance to the trial to justify it being determined on an interlocutory appeal; and

(c) if the interlocutory decision is made after the trial commences, either -

(i) that the issue that is the subject of the proposed appeal was not reasonably able to be identified before the trial; or

(ii) that the party was not at fault in failing to identify the issue that is the subject of the proposed appeal.

[15] [1936] HCA 40; (1936) 55 CLR 499 ('House').

[16] (2012) 38 VR 1 ('McCartney').

[17] (2011) 33 VR 11.

[18] Where it was held in DAO v The Queen [2011] NSWCCA 63; (2011) 81 NSWLR 568 that House principles governed interlocutory appeals from a decision regarding the admissibility of tendency evidence.

[19] House [1936] HCA 40; (1936) 55 CLR 499.

[20] [2012] VSCA 328; (2012) 218 A Crim R 507, 524-525 [63], 559 [184] (Warren CJ, Maxwell P, Nettle, Redlich & Bongiorno JJA) ('Dupas').

[22] House [1936] HCA 40; (1936) 55 CLR 499.

[23] McCartney (2012) 38 VR 1.

[24] [2014] VSCA 58, [17] (Redlich, Osborn JJA and Sifris AJA).

[25] Dupas [2012] VSCA 328; (2012) 218 A Crim R 507.

[27] (2010) 29 VR 110.

[28] House [1936] HCA 40; (1936) 55 CLR 499.

[29] McCartney (2012) 38 VR 1.

[30] As a general rule, this Court will not depart from its own earlier decisions unless it considers those decisions to be clearly or plainly wrong; RJE v Secretary to the Department of Justice [2008] VSCA 265; (2008) 21 VR 526, 540 [48] (Maxwell P and Weinberg JA); Murdoch (a Pseudonym) v The Queen [2013] VSCA 272, [12] (Redlich and Coghlan JJA); Director of Consumer Affairs v Scully [2013] VSCA 292; (2013) 303 ALR 168, 171-174 (Santamaria JA with whom Neave and Osborn JJA agreed).

[31] House [1936] HCA 40; (1936) 55 CLR 499.

[32] CV v DPP [2014] VSCA 58, [17] (Redlich, Osborn JJA and Sifris AJA).

[33] [2014] VSCA 111.

[34] Ibid [51] (Priest and Beach JJA) (emphasis in original).

[35] Dupas [2012] VSCA 328; (2012) 218 A Crim R 507.

[36] 'Evidence is not unfairly prejudicial merely because it makes it more likely that the defendant will be convicted'; Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297, 325 (McHugh J).

[37] See Evidence Act 2008 s 137. See also R v Duke (1979) 22 SASR 46, 47-48 (King CJ).

[38] See Evidence Act 2008 s 65(1).

[39] [1995] HCA 66; (1995) 184 CLR 19.

[40] Ibid 83. On the use of directions to obviate the danger of unfair prejudice, see also TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124, 153-154 [90] (McHugh J).

[41] For a case where the Court of Appeal disagreed with the exercise of a discretion, but allowed the decision below to stand, see DPP v Marijancevic; DPP v Preece [2011] VSCA 355; (2011) 33 VR 440 (unsworn warrants).

[42] Lutwak v United States [1953] USSC 35; 344 U.S. 604, 619 (1953).

[43] [1998] VSCA 82; [1999] 1 VR 542.

[44] [1986] VicRp 3; [1986] VR 37 (a ruling given by Hampel J in the course of a trial for murder, in which he excluded the deposition sought to be tendered by the Crown on a charge for murder in the exercise of what might be termed the 'Christie' discretion: see R v Christie [1914] AC 545).

[45] (2010) 30 VR 519 ('Sonnet').

[46] In R v Radford (1993) 66 A Crim R 210, the Court of Criminal Appeal (Phillips CJ and Eames J) said (at 229): '[t]here is no doubt that deposition evidence generally, in the absence of a witness, is admitted into evidence both at common law and by s 55AB [of the Evidence Act 1958] as an exception to the rule against hearsay [...] The admission of such evidence, generally, does not, in our opinion, deny the discretion of the trial judge to exclude such portions of it which further offend rules against admissibility'. R v Stackelroth (1996) 86 A Crim R 438 concerned s 409 of the Crimes Act 1900 (NSW) which provided for the admission into evidence at trial of oral evidence given in committal proceedings. It was held that the court did not have a residual discretion to refuse to admit evidence otherwise admissible merely because the maker of the statement was unavailable for cross-examination. However, the court retained its general discretions to refuse to admit the evidence because either its prejudicial effect outweighed its probative value or its use would result in an unfair trial for the accused or the evidence was unlawfully or improperly obtained. See, now, Evidence Act 2008 s 90 (Discretion to exclude admissions), s 137 (Exclusion of prejudicial evidence in criminal proceedings) and s 138 (Exclusion of improperly or illegally obtained evidence). In R v Casotti (1994) 74 A Crim R 294, the Court of Criminal Appeal held that a statement in a deposition that was not admissible under s 55AB of the Evidence Act 1958 (as the witness had died before committal and therefore could not be cross-examined) could not be used by a sentencing judge after a plea of guilty at trial.

[47] [1973] QB 496.

[49] [2002] VSCA 216; (2002) 5 VR 446 ('Cacic').

[50] Ibid 454 [28] (Chernov JA with Charles and Buchanan JJA agreeing) (citations omitted).

[52] (2010) 29 VR 110.

[55] [1989] 1 AC 1242 ('Scott').

[59] [1991] 1 WLR 242.

[61] With whom the other members of the Privy Council agreed.

[62] [1991] 1 WLR 242, 247F.

[64] [2005] EWCA Crim 2697; [2006] 1 WLR 1078 ('Al-Khawaja').

[65] Article 6(3) provides: '(3) Everyone charged with a criminal offence has the following minimum rights: ... (d) to examine or have examined witnesses against him and to obtain the attendance of and examination of witnesses on his behalf under the same conditions as witnesses against him'. Section 25(2) of the Charter of Human Rights and Responsibilities Act 2006 provides: 'A person charged with a criminal offence is entitled without discrimination to the following minimum guarantees - ... (g) to examine, or have examined, witnesses against him or her, unless otherwise provided for by law; and (h) to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses for the prosecution; ...'.

[66] Al-Khawaja [2005] EWCA Crim 2697; [2006] 1 WLR 1078, 1085H.

[71] Al-Khawaja and Tahery v United Kingdom [2009] ECHR 110; (2009) 49 EHRR 1.

[72] In the United States of America, the issue of a fair trial is affected by the Sixth Amendment to the Constitution. It provides: 'In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory processes for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.' In Crawford v Washington, [2004] USSC 59; 541 US 36 (2004), the Supreme Court held that the so-called 'confrontation clause' of the Sixth Amendment required the exclusion of any 'testimonial' evidence whatsoever in respect of which there had been, or could be, no cross-examination (see in particular at 53-4, 57, 59 and 68). For the law in Canada, see R v Khan [1990] 2 SCR 531; R v Smith [1992] 2 SCR 915 and R v Rockey [1996] 3 SCR 829. As to the position in New Zealand, see R v Baker [1989] NZCA 62; [1989] 1 NZLR 738; R v Bain [1996] 1 NZLR 129 and R v Manase [2001] 2 NZLR 197.

[73] [2009] EWCA Civ 47; [2010] 2 AC 373.

[74] Al-Khawaja [2005] EWCA Crim 2697; [2006] 1 WLR 1078

[75] R v Horncastle [2009] EWCA Civ 47; [2010] 2 AC 373, 394.