66Exception: criminal proceedings if maker available

### 66 Exception: criminal proceedings if maker available > > (1)  This section applies in a criminal proceeding if a person who made a previous representation is available to give evidence about an asserted fact. > > > (2)  If that person has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the previous representation that is given by – > > > > > > (a) that person; or > > > > > > > (b) a person who saw, heard or otherwise perceived the representation being made – > > > > if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation. > > > (2A)  [*\[Section 66 Subsection (2A) inserted by No. 46 of 2010, s. 20, Applied:01 Jan 2011\]*](/view/html/inforce/2011-01-01/act-2010-046#GS20@EN) In determining whether the occurrence of the asserted fact was fresh in the memory of a person, the court may take into account all matters that it considers are relevant to the question, including – > > > > > > (a) the nature of the event concerned; and > > > > > > > (b) the age and health of the person; and > > > > > > > (c) the period of time between the occurrence of the asserted fact and the making of the representation. > > > (3)  If a representation was made for the purpose of indicating the evidence that the person who made it would be able to give in an Australian or overseas proceeding, [subsection (2)](#GS66@Gs2@EN) does not apply to evidence adduced by the prosecutor of the representation unless the representation concerns the identity of a person, place or thing. > > > (4)  A document containing a representation to which [subsection (2)](#GS66@Gs2@EN) applies must not be tendered before the conclusion of the examination in chief of the person who made the representation, unless the court gives leave.