sec.93BAdmissibility of representation in prescribed criminal proceedings if person who made it is unavailable

### sec.93B Admissibility of representation in prescribed criminal proceedings if person who made it is unavailable This section applies in a prescribed criminal proceeding if a person with personal knowledge of an asserted fact— made a representation about the asserted fact; and is unavailable to give evidence about the asserted fact because the person is dead or mentally or physically incapable of giving the evidence. The hearsay rule does not apply to evidence of the representation given by a person who saw, heard or otherwise perceived the representation, if the representation was— made when or shortly after the asserted fact happened and in circumstances making it unlikely the representation is a fabrication; or made in circumstances making it highly probable the representation is reliable; or at the time it was made, against the interests of the person who made it. If evidence given by a person of a representation about a matter has been adduced by a party and has been admitted under subsection (2) , the hearsay rule does not apply to the following evidence adduced by another party to the proceeding— evidence of the representation given by another person who saw, heard or otherwise perceived the representation; evidence of another representation about the matter given by a person who saw, heard or otherwise perceived the other representation. To avoid any doubt, it is declared that subsections (2) and (3) only provide exceptions to the hearsay rule for particular evidence and do not otherwise affect the admissibility of the evidence. In this section— prescribed criminal proceeding means a criminal proceeding against a person for an offence defined in the Criminal Code , chapters 28 to 32 . representation includes— an express or implied representation, whether oral or written; and a representation to be inferred from conduct; and a representation not intended by the person making it to be communicated to or seen by another person; and a representation that for any reason is not communicated. s 93B ins 2000 No. 43 s 50 (sec.93B-ssec.1) This section applies in a prescribed criminal proceeding if a person with personal knowledge of an asserted fact— made a representation about the asserted fact; and is unavailable to give evidence about the asserted fact because the person is dead or mentally or physically incapable of giving the evidence. (sec.93B-ssec.2) The hearsay rule does not apply to evidence of the representation given by a person who saw, heard or otherwise perceived the representation, if the representation was— made when or shortly after the asserted fact happened and in circumstances making it unlikely the representation is a fabrication; or made in circumstances making it highly probable the representation is reliable; or at the time it was made, against the interests of the person who made it. (sec.93B-ssec.3) If evidence given by a person of a representation about a matter has been adduced by a party and has been admitted under subsection (2) , the hearsay rule does not apply to the following evidence adduced by another party to the proceeding— evidence of the representation given by another person who saw, heard or otherwise perceived the representation; evidence of another representation about the matter given by a person who saw, heard or otherwise perceived the other representation. (sec.93B-ssec.4) To avoid any doubt, it is declared that subsections (2) and (3) only provide exceptions to the hearsay rule for particular evidence and do not otherwise affect the admissibility of the evidence. (sec.93B-ssec.5) In this section— prescribed criminal proceeding means a criminal proceeding against a person for an offence defined in the Criminal Code , chapters 28 to 32 . representation includes— an express or implied representation, whether oral or written; and a representation to be inferred from conduct; and a representation not intended by the person making it to be communicated to or seen by another person; and a representation that for any reason is not communicated. - (a) made a representation about the asserted fact; and - (b) is unavailable to give evidence about the asserted fact because the person is dead or mentally or physically incapable of giving the evidence. - (a) made when or shortly after the asserted fact happened and in circumstances making it unlikely the representation is a fabrication; or - (b) made in circumstances making it highly probable the representation is reliable; or - (c) at the time it was made, against the interests of the person who made it. - (a) evidence of the representation given by another person who saw, heard or otherwise perceived the representation; - (b) evidence of another representation about the matter given by a person who saw, heard or otherwise perceived the other representation. - (a) an express or implied representation, whether oral or written; and - (b) a representation to be inferred from conduct; and - (c) a representation not intended by the person making it to be communicated to or seen by another person; and - (d) a representation that for any reason is not communicated.