R v Darmody [2010] VSCA 41

Court of Appeal (Vic)|2010-03-09|Before: NETTLE and ASHLEY JJA and HABERSBERGER AJA

Rulings dated 3 February 2010 and 10 February 2010 (Unreported, County Court of Victoria, Judge Leckie)

CRIMINAL LAW - Application for special leave to appeal from interlocutory decision pursuant to s 295 Criminal Procedure Act 2009 - Whether judge below erred in holding that the Evidence Act 2008 applied - Whether provisions of Clause 2(2) of Schedule 2 to the correctly applied by the judge - Whether complainant 'not available to give evidence' within the meaning of of the - Power to receive prior statement of an unavailable witness - , the - Whether judge erred in excusing failure to give notice of intention to adduce evidence - , the - Whether probative value of evidence given by complainant at committal hearing was outweighed by danger of unfair prejudice to applicant - Whether judge erred in not excluding such evidence.

1 On 15 February 2010 we heard an application by Michael John Darmody ('the applicant'), pursuant to s 295 of the Criminal Procedure Act 2009, for special leave to appeal from an interlocutory decision of a judge of the County Court. In brief substance, the circumstances which gave rise to the application were as follows.

2 On 24 November 2008, the applicant was presented for trial in the County Court at Bendigo on counts of intentionally causing serious injury and making a threat to kill one Brendan Jones ('the complainant').

3 On 9 September 2009 a jury was empanelled and the applicant was arraigned before the jury but, when the complainant was called to give evidence, he refused to be sworn or to testify.

4 During the course of the submissions which followed, the prosecutor told the judge that the reason for the complainant's refusal to give evidence was that he was being kept in custody in the same prison as the applicant, and was concerned about his safety, but had indicated that, if he were moved to another prison, his attitude may change. On that basis, the judge discharged the jury and remanded the applicant in custody for trial at the next sittings.

5 On 22 January 2010, the Crown orally informed the applicant's legal representatives that the complainant still appeared to be unwilling to give evidence and that the Crown may make application under s 65 of the Evidence Act 2008 to rely on the evidence which the complainant had given at the committal hearing.

6 The matter next came on for mention on 2 February 2010. On that occasion, the prosecutor told the judge that the complainant's attitude had still not changed. He was still in gaol (although he had been moved to another prison) and was still concerned about the consequences of giving evidence against the applicant, and he did not propose to give evidence. The prosecutor also foreshadowed the possibility of an application under s 38 of the Evidence Act 2008 to treat the applicant as unfavourable.

7 The matter was listed again on 4 February 2010 for a voire dire inquiry as to the availability of the complainant to give evidence. When the complainant was called on that occasion, he said again that he did not wish give evidence. The judge then cautioned him that he risked being dealt with for contempt and gave him an opportunity to take legal advice. Even after taking advice, however, the complainant's attitude remained the same. He said that he was not prepared to give evidence so long as he remained in prison, although he would be prepared to give evidence on his release on parole, which he hoped would be on 22 or 24 February 2010.

8 The prosecutor thus sought that the commencement of the trial be postponed until after the complainant's release on parole. But the applicant opposed that application and the judge refused it. As counsel for the applicant told us in the course of submissions, the applicant's reason for opposing the postponement was that the commencement of the trial had already been significantly delayed on account of the complainant, and there was no certainty that the complainant would be prepared to give evidence if the trial were further delayed until 23 or 25 February 2010.

9 It was then that the prosecutor applied under s 65 of the Evidence Act 2010 to be permitted to lead the evidence given by the complainant at the committal hearing. That application was also opposed.

10 Section 65 of the Evidence Act 2008 provides that:

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.

(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

(d) was -

(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. Note Section 67 imposes notice requirements relating to this subsection.

(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.

Note Section 67 imposes notice requirements relating to this subsection.

(4) If there is more than one accused 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 an accused 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), an accused is taken to have had a reasonable opportunity to cross-examine a person if the accused 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.

(7) Without limiting subsection (2)(d), a representation is taken for the purposes of that subsection to be against the interests of the person who made it if it tends -

(a) to damage the person's reputation; or

(b) to show that the person has committed an offence for which the person has not been convicted; or

(c) to show that the person is liable in an action for damages.

(8) The hearsay rule does not apply to -

(a) evidence of a previous representation adduced by an accused if the evidence is given by a person who saw, heard or otherwise perceived the representation being made; or

(b) a document tendered as evidence by an accused so far as it contains a previous representation, or another representation to which it is reasonably necessary to refer in order to understand the representation.

Note Section 67 imposes notice requirements relating to this subsection.

(9) If evidence of a previous representation about a matter has been adduced by an accused and has been admitted, the hearsay rule does not apply to evidence of another representation about the matter that -

(a) is adduced by another party; and

(b) is given by a person who saw, heard or otherwise perceived the other representation being made.

Note Clause 4 of Part 2 of the Dictionary is about the availability of persons.

11 After hearing submissions, the judge held that the complainant was 'not available to give evidence' within the meaning of s 65(1) of the Act and ruled that the Crown should be permitted to rely on the complainant's evidence at the committal hearing pursuant to s 65(3) of the Act. His Honour further directed that the complainant's witness statement be tendered and read by the prosecutor to the jury and into the transcript before playing a recording of the complainant's evidence at the committal hearing and, if the defence so required, that the complainant be present so that the jury could observe him during evidence to be given by a police officer who knows him and can identify him in court.

12 It was against that order and those directions that leave to appeal was sought.

13 At the conclusion of the hearing on 15 February 2010 we concluded that it was in the interests of justice to allow the application for special leave to appeal but that the appeal should be dismissed. Accordingly, we made orders to that effect for reasons to be published at a later date. What follows are those reasons.

Ground 1 - Application of the Evidence Act 2008

14 The applicant advanced four grounds of appeal, of which the first was that the judge erred in holding that the Evidence Act 2008 applied.

(1) The power to receive the prior statement of an unavailable witness arose in this case, if at all, under ss 65(1) and 3(a) of the Evidence Act 2008.

(2) By s 53 of the Statute Law Amendment (Evidence Consequential Provisions) Act 2009 (Vic) a new Schedule 2 was inserted into the principal Act. It relevantly provided -

1 Definitions

In this Schedule -

'commencement day 'means the day this Act (other than Part 1 and the Dictionary) commences.

2 Application of this Act on commencement day

(1) Except as otherwise provided by this Schedule, this Act applies to any proceeding (within the operation of section 4) commenced on or after the commencement day.

(2) Except as otherwise provided by this Schedule, in the case of any proceeding (within the operation of section 4) that commenced before the commencement day, this Act applies to that part of the proceeding that takes place on or after the commencement day, other than any hearing in the proceeding that commenced before the commencement day and -

(a) continued on or after the commencement day; or

(b) was adjourned until the commencement day or a day after the commencement day.

(3) The commencement day, relevantly, was 1 January 2010.

(4) The proceeding instituted by the filing of the presentment commenced before the commencement day.

(5) A hearing in the proceeding continued after the commencement day; or else was adjourned until a day after the commencement day.

16 The proceeding brought against the applicant was surely a 'criminal proceeding' as defined in the Dictionary in the Evidence Act. Although 'proceeding' itself is not there defined, s 4 of that Act shows that proceedings include criminal matters. 'Proceeding' in clause 2 of Schedule 2 should be read to include a criminal proceeding.

17 In the case of a criminal matter in which the presentment was filed before the commencement of a new regime on 1 January 2010, the filing of the presentment stood as the commencement of the proceeding.[1] The new regime revealed by, inter alia, ss 5, 98, 161 and 162 of the Criminal Procedure Act 2009 (Vic) had no application in those circumstances.[2]

18 Thus, the applicant's counsel was correct when he submitted that, for the purposes of Clause 2(2) of Schedule 2 to the Evidence Act, 'the proceeding ... commenced before the commencement day'.

19 Counsel was not correct, however, when he submitted that the hearing, having commenced before the commencement day, either continued on after the commencement day or was adjourned to a day after that day. A distinction is to be drawn between 'the proceeding' and a 'hearing in the proceeding'. That there is such a distinction as recognised by the language of Clause 2(2). It is a distinction which the argument for the applicant tended to obliterate.

20 In this case, the proceeding commenced before 1 January 2010, and it continued after that day; but that is not to say that a hearing commenced before that day and continued thereafter. Again, it is true to say that the proceeding commenced before 1 January 2010, and that in September 2009 it was adjourned to a date after 1 January 2010. But that is not to say that a hearing in the proceeding commenced before that day and was adjourned to a date thereafter. What happened was simply this: In the proceeding commenced by the filing of the presentment, a hearing commenced when, in September 2009, a jury was empanelled and the applicant was arraigned. In our opinion, that hearing - but not the proceeding - ended when the jury was discharged and the applicant was remanded in custody for trial at the next sittings. A new hearing commenced when, in that proceeding, the applicant was again arraigned in 2010.

21 In the event, the learned trial judge was correct when he ruled that the pertinent provisions of the Evidence Act 2008 applied.

Ground 2 - Whether the complainant was available

22 Under the heading of Ground 2, counsel for the applicant contended that the judge also erred in holding that complainant was 'not available to give evidence' within the meaning of s 65(1) of the Act.

23 That contention is also rejected. Clause 4(1)(f) of the Dictionary within the Act provides that, for the purposes of the Act, a person is taken not to be available to give evidence about a fact if:

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.

24 In R v Suteski,[3] the New South Wales Court of Criminal Appeal noted that it emerged from the Australian Law Reform Commission Reports that 'unavailability' was intended to cover the position of a witness who refuses to give evidence. On that basis, their Honours held that a witness was not available to give evidence within the meaning of clause 4 (1)(f) if the witness, having been subpoenaed, refused to give evidence after being warned of the consequence of refusing to testify.

25 The judge followed Suteski and so held that, because the Crown in this case had subpoenaed the complainant and called him, and he had refused to give evidence after being warned that he risked being dealt with for contempt, the complainant was not available to give evidence within the meaning of clause 4(f).

26 His Honour was right to follow Suteski. With respect, there is no reason to doubt the reasoning there applied and, in those circumstances, his Honour was bound to follow it.[4]

27 Counsel for the applicant sought to distinguish Suteski on the basis that, whereas the witness's refusal to give evidence in that case was absolute and unconditional, in this case the complainant said that he would be prepared to give evidence when and if he is released on parole, which he expected to occur by 23 or 25 February 2010. In counsel's submission, the position here was thus akin to the situation in R v Li [5] where the New South Wales Court of Criminal Appeal concluded that it was 'difficult to see' how evidence could be admitted under s 65(3) in circumstances where a trial was yet to begin; it was known that the witness in question would be available to give evidence in three months; and there was no objection to the postponement of the trial for that period.

28 That submission is persuasive up to a point. Availability within the meaning of clause 4(f) of the Dictionary is essentially a question of fact and degree. So, for example, if a witness is not willing to give evidence today, but is likely to be willing to give evidence tomorrow, or even within a few days time, it may well be 'difficult to see' that the witness is not available to give evidence within the meaning of the clause. Contrastingly, if a witness is not willing to give evidence today and there is no more than an uncertain possibility that he may be willing to give evidence at some indeterminate time in the future, one might well conclude that the witness is not available to give evidence within the meaning of the clause. And between those examples and beyond them lies a range of possibilities of which the significance will be informed by considerations including the nature and duration of the offence alleged, the complexity and duration of the trial, and the stage if any it has reached by the time when the question falls to be considered.

29 Other things being equal, therefore, it might have been said that, despite the complainant's refusal to give evidence on 10 February 2010, he was apparently prepared to give evidence when released on parole, and so it was 'difficult to see' that he was not available to give evidence.

30 In this case, however, there were four considerations which pointed the other way. First, although the Crown sought that the commencement of the trial be postponed until 23 or 25 February 2010, the accused opposed the postponement on the ground, earlier noticed, that there had already been a significant delay and there was no certainty that the complainant would be willing to give evidence even if there were a further delay.

31 Secondly, the judge upheld the applicant's objection to postponement and the applicant does not suggest that his Honour was wrong to do so. Indeed, the applicant's position remains that, in the events which have occurred, it is of the first importance that the trial commence without any further delay.

32 Thirdly, and consequently, the question of whether the complainant was unavailable to give evidence within the meaning of clause 4(f) fell to be decided on the basis that the trial should begin immediately, and in all likelihood conclude before 23 or 25 February 2010, during which time it was clear that the complainant would not be willing to give evidence.

33 Fourthly, there was no certainty that the complainant would be granted parole or when, and thus one could only speculate as to whether the complainant would be prepared to give evidence at any time within the foreseeable future.

34 In the result, we see no error in the judge's conclusion that the complainant was not available to give evidence within the meaning of clause 4(f); and we add that, even if we were any doubt about the judge's conclusion (which we are not), we would not be disposed to reject it. The question being one of fact and degree, informed by considerations of which a trial judge is pre-eminently placed to assess the significance, an appellate court should refuse to intervene unless error is clearly established.

35 Counsel for the applicant submitted that the learned trial judge erred in not excluding the evidence given by the complainant at the committal proceeding. He relied upon both ss 135 and 137 of the Evidence Act, but principally upon s 137. It is understandable that he focused upon s 137, because it is specifically applicable to evidence in criminal proceedings, and because a court must refuse to admit evidence

if its probative value is outweighed by the danger of unfair prejudice to the defendant

That is to be contrasted with s 135, by which a Court may refuse to admit evidence if, inter alia,

its probative value is substantially outweighed by the danger that the evidence might (or be unfairly prejudicial to a party ...

Whilst s 135 raises other bases upon which a Court may refuse to admit evidence, with respect to the question of probative value and danger of unfair prejudice, for several reasons s 137 is a stronger provision from a criminal defendant's standpoint.

36 Counsel did not contend below that the requirements of s 65(3)(a) were not satisfied in respect of the complainant's evidence at the committal (which incorporated his statement to the police made on 2 November 2007). Neither did he so contend in this Court.

37 Again, counsel for the applicant conceded below that the complainant's evidence was 'highly probative'. It could not be doubted that the evidence, if a jury accepted it, did have such a value. It was the lynchpin of the Crown case. There was no other direct evidence of the alleged assault.

38 Counsel submitted below that the judge should not admit the evidence because, although its probative value was great, it was outweighed by the danger of unfair prejudice. He submitted that the following matters favoured a conclusion that the danger of unfair prejudice was high: (1) the jury would be deprived of the opportunity to see the complainant in person, and to see how he handled cross-examination; (2) the applicant would not be able to cross-examine the complainant about discrepancies, revealed by recently disclosed documents, between his evidence and one or more accounts given in those documents. In particular, the applicant would be unable to cross-examine the complainant as to alleged discrepancies between his evidence and a history recorded at the hospital on the night of the alleged assault, the history detailing the extent of the complainant's drug and alcohol use; or upon a history recorded in the hospital notes that the complainant had been stabbed by an acquaintance about a drug-related matter; (3) the applicant would not be able to cross-examine the complainant to suggest that he had been injured in a fight, not with the applicant, but with someone else; (4) the applicant would be unable to cross-examine the complainant to the effect that an intervening police officer had influenced him to implicate the applicant in the assault. That matter had not been ventilated at the committal hearing because the applicant had been refused leave to cross-examine the particular policeman.

39 The learned judge concluded that the forensic disadvantages for the applicant of the complainant's evidence being adduced in the manner permitted by s 65(3) were 'obvious and significant'. He concluded, however, that applicant's counsel had overstated the disadvantage which his client would face. He said this:

The accused received a hand-up-brief before the committal containing the materials sought to be relied upon by the prosecution. The accused was represented by counsel at the committal who cross-examined the [complainant] at some length. Matters of credibility relating to his memory, his drug taking, his prior criminal history were canvassed. Inconsistencies in his account were pursued. The defence was put in the sense that it was alleged that the witness threw the first punch.

40 Both before and after his analysis of the extent of disadvantage asserted by applicant's counsel, his Honour referred to a number of New South Wales authorities which address the concept of danger of 'unfair prejudice'. He accepted that, according to those authorities, danger of unfair prejudice means the danger that a jury may use the evidence to make its decision 'on an improper, perhaps emotional basis', a basis 'logically unconnected with the issues in the case'; a danger that the accused's case may be damaged 'in some unacceptable way by provoking some irrational emotional response or giving evidence more weight than it should have'.

41 Each of those formulations excluded from consideration the prejudicial effect of the evidence itself in proof of the Crown case. The stronger the evidence, the greater that prejudice will be. But, as was not in debate below and in this Court, such prejudice is not unfair prejudice.

42 His Honour expressed his overall conclusion this way:

In my view, even if one accepts that these disadvantages are prejudicial to the accused, they cannot, in my view, be properly categorised as unfair prejudice in the sense described by the authorities. Nor, if they were to be categorised in that way, are they such at to outweigh the probative value of the evidence in this case.

43 In so concluding, his Honour necessarily took account of the acceptance by applicant's counsel that the complainant's evidence was 'highly probative'.

44 In this Court, counsel for the applicant restated the disadvantages upon which he had relied below. He raised a further matter - that is, that whilst the cross-examination of the complainant at the committal had been extensive, it had been conducted in a pre s65 context; and so, for tactical reasons, had been less extensive than would now be the case.

45 Our reasons for rejecting the challenge to his Honour's conclusion that the probative value of the complainant's evidence had not been outweighed by the danger of unfair prejudice were as follows:

(1) After reading the cross-examination of the complainant at the committal, and after considering the import of additional documents supplied to the applicant after the committal, we concluded that the applicant's asserted loss of opportunity to cross-examine the complainant at trial, as articulated before the learned trial judge, was not of great moment. As part of that conclusion, we considered that there was no force to the submission that the applicant had been deprived of an opportunity to cross-examine the complainant to suggest that he had been injured by an assault other than that alleged against the applicant. Such a submission stood opposed to the defence response, made on 8 September 2009, that the issue at trial was self-defence.

(2) The additional matter relied upon before us was no more than assertion. It might equally well have been said -

(a) that often enough, in the pre s 65(3) environment, cross-examination at committals was wide-ranging, so as to see what could be used at trial, and what areas of danger existed; and

(b) that in the s 65(3) environment, there may be more cause to cross-examine conservatively at a committal if there is any perceived risk of the witness being 'unavailable' at trial.

(3) In the event, assuming that the forensic disadvantages asserted by counsel for the applicant could be pertinent to the danger of unfair prejudice,[6] we were of opinion that the judge correctly concluded that they did not outweigh the probative value of the complainant's evidence. In so concluding we acted upon the concession of applicant's counsel made below that the complainant's evidence was highly probative. It was not necessary to investigate what is meant, in the definition of 'probative value' in the Dictionary, by the reference to 'the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue'. The authorities leave room for some uncertainties about the matter.[7]

(4) Making the assumption referred to in (3), there was no occasion to closely examine the authorities pertaining to 'danger of unfair prejudice'.

Ground 4 - Failure to give notice in accordance with s 67

1"> 46 The applicant's final ground of appeal was that his Honour had erred in directing, pursuant to s 67(4) of the Act, that s 65(3) applied despite the Crown's failure to give the notice required by s 67(1).

67 Notice to be given

(1) Sections 63(2), 64(2) and 65(2), (3) and (8) do not apply to evidence adduced by a party unless that party has given reasonable notice in writing to each other party of the party's intention to adduce the evidence.

(2) Notices given under subsection (1) are to be given in accordance with any regulations or rules of court made for the purposes of this section.

(3) The notice must state -

(a) the particular provisions of this Division on which the party intends to rely in arguing that the hearsay rule does not apply to the evidence; and

(b) if section 64(2) is such a provision - the grounds, specified in that provision, on which the party intends to rely.

(4) Despite subsection (1), if notice has not been given, the court may, on the application of a party, direct that one or more of those subsections is to apply despite the party's failure to give notice.

(5) The direction -

(a) is subject to such conditions (if any) as the court thinks fit; and

(b) in particular, may provide that, in relation to specified evidence, the subsection or subsections concerned apply with such modifications as the court specifies.

48 Section 192 is also relevant. That section reads as follows:

192 Leave, permission or direction may be given on terms

(1) If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit.

(2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account -

(a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing; and

(b) the extent to which to do so would be unfair to a party or to a witness; and

(c) the importance of the evidence in relation to which the leave, permission or direction is sought; and

(d) the nature of the proceeding; and

(e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence.

49 Having referred to these provisions, the judge then stated:

In addressing these matters I make the following observations. The evidence of the statement and tape-recording of the evidence is relatively short, s 192(2)(a). The evidence is vitally important to the prosecution as it is the evidence of the victim who was assaulted, s 192(2)(c).

The matter is very serious involving a charge of intentionally cause serious injury and a threat to kill, s 192(2)(d).

The defence were informed verbally on the 3/2/2010 that the Crown were seeking to lead the evidence in this form. Part of the difficulty was knowing with any certainty what course the witness would adopt until he was called. The defence sought no adjournment and I do not find any unfairness to the defence in this case by the failure to comply with s 67(1).

Directions can be given to excise certain parts of the statement or recording, if necessary, if irrelevant or prejudicial material is not removed by agreement. Consequently I direct pursuant to s 67(4) that s 65(3) should apply notwithstanding the absence of written notice.

50 The applicant contended that the failure to serve notice under s 67 was fatal to the application by the Crown to utilise s 65 of the Act. Counsel submitted the failure created an unfairness to the applicant in that a properly served notice in reasonable time would have allowed a proper and considered response on behalf of the applicant. It was pointed out that the failure to give notice was not due to events that were unknown to the Crown. It was also submitted that the application of the relevant considerations in ss 192(a) to (e) of the Act were inadequately applied.

51 In our opinion, there is no substance in these submissions. Counsel for the applicant conceded during argument that it was known from the directions hearing on 22 January 2010 that the Crown might seek to rely on s 65(3) of the Act if the complainant again refused to give evidence. Thus, the time in which to consider a response was longer than that referred to by the judge. Nothing has been shown, in our opinion, to suggest that his Honour did not appropriately take into account all of the matters set out in s 192(2), in deciding to direct that s 65(3) of the Act applied despite the Crown's failure to give the notice required by s 67(1). Importantly, there was no unfairness to the applicant in so deciding.

52 For those reasons, we ordered that the application for special leave to appeal be allowed and that the appeal be treated as instituted and heard instanter and dismissed.

[1] R v Taylor (No 2) [2008] VSCA 57.

[2] On the other hand, by operation of clause 10(5) of Schedule 4 of the Act, the interlocutory appeal provisions - ss 295-301 - did apply.

[3] [2002] NSWCCA 509; (2002) 56 NSWLR 182, 195 [83]; see also R v Alchin [2006] ACTSC 53; (2006) 200 FLR 204, [2]-[5.

[4] _Australian Securities Commission v Marlborough Gold Mines Lt_d [1993] HCA 15; (1993) 177 CLR 485, 492; _Siemens Ltd v Schenker International (Australia) Pty Lt_d (2004) 216 CLR 418, 467 [154].

[6] In this connection, we note that the line of authority in New South Wales which says that the relevant danger is that (particularly) a jury may use the evidence in an unacceptable way (i) by its provoking an irrational emotional response; or (ii) by using it in a way logically unconnected with the issues for decision, has not yielded the result that inability to cross-examine the person whose evidence is being admitted will inevitably carry no danger of unfair prejudice. It appears that in some circumstances, particularly but not only where the evidence is hearsay, a relevant danger may be constituted if the evidence is admitted despite the opposing party's inability to cross-examine. The danger identified lies in mis-estimating the weight of the evidence.

[7] See Odgers, Uniform Evidence Law, (8th ed), para 1.3.14760, pp 700-707.

Statute Law Amendment (Evidence Consequential Provisions) Act 2009(Vic)

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