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. S. 66(2) substituted by No. 37/2017 s. 17. (2) The hearsay rule does not apply to evidence of the representation that is given by the person who made the representation or a person who saw, heard or otherwise perceived the representation being made if— (a) the person who made the representation has been or is to be called to give evidence; and (b) either— (i) when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation; or (ii) the person who made the representation is a victim of an offence to which the proceeding relates and was under the age of 18 years when the representation was made. Subsection (2) differs from the Commonwealth Act and New South Wales Act. (2A) In determining whether the occurrence of the asserted fact was fresh in the memory of a person, the court may take into account all matters that it considers are relevant to the question, including— (a) the nature of the event concerned; and (b) the age and health of the person; and (c) the period of time between the occurrence of the asserted fact and the making of the representation. Subsection (2A) was inserted as a response to the decision of the High Court of Australia in Graham v The Queen (1998) 195 CLR 606. (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) 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) 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.