Australian Capital Territory Current Acts

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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 the person has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by—

        (a)     the person; or

        (b)     a person who saw, heard or otherwise perceived the representation being made;

if, when the representation was made, the happening of the asserted fact was fresh in the memory of the person who made the representation.

    (3)     In deciding whether the happening 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 time between the happening of the asserted fact and the making of the representation.

Note     Subsection (3) was inserted as a response to the decision of the High Court in Graham v The Queen (1998) 195 CLR 606.

    (4)     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 presented by the prosecutor of the representation unless the representation is about the identity of a person, place or thing.

    (5)     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.

Note     The dictionary, pt 2, s 4 is about the availability of people.

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