2.4 – Unavailable witnesses

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  1. This topic addresses the need for a direction in running where hearsay evidence is led from a witness who is unavailable to give evidence. For general information on directions relating to hearsay evidence, see Previous Representations (Hearsay, Recent Complaint and Prior Statements).
  2. Evidence Act 2008 s65 sets out a series of exceptions to the hearsay rule that apply when the person who made the previous representation is not available to give evidence. These exceptions include:
  3. Evidence Act 2008 Dictionary, clause 4, specifies when a person is not available to give evidence about a fact. The circumstances listed include where the person is dead, not competent to give the evidence, or, despite all reasonable steps, the party seeking to call the witness has not been able to find or compel the person to give evidence.
  4. Evidence of statements made in other proceedings can be adduced by producing an authenticated transcript or recording of the witness giving evidence (Evidence Act 2008 s65(6)).
  5. These exceptions may allow the prosecution to lead the evidence in the form of the witness’ statement to police, evidence given at committal hearings and evidence on voir dire (see, e.g., Clarke v R [2017] VSCA 115; Luna v R [2016] VSCA 10; Fletcher v R (2015) 45 VR 634; Bray v R (2014) 46 VR 623. See also see Criminal Procedure Act 2009 ss 112, 130).
  6. Where the prosecution seeks to lead evidence from the committal hearing, the witness’ police statement will generally stand as the witness’ evidence in chief at the committal hearing (Luna v R [2016] VSCA 10).
  7. As a matter of practice, a witness’ police statement is introduced by the prosecutor reading the relevant parts of the statement to the jury and not by tendering the statement as an exhibit. During this process, the prosecutor’s reading of the statement should form part of the trial transcript which is given to the jury at the end of the trial.
  8. At present, evidence given at committal hearings is audio recorded only. When the audio recording is played, the jury may be given a transcript of the recording, in the same way that a jury may be given a transcript when listening to other audio-recorded evidence. See Providing Documents to the Jury and Charge: Transcripts of Taped Evidence for information and directions about providing transcripts of audio-recorded evidence to the jury.
  9. Where a party proposes to lead evidence from a witness who is not available to give evidence, it is appropriate for the judge to briefly explain the reason the evidence is being led in that manner.
  10. At the end of the trial, a party may seek a direction that such evidence may be unreliable (Jury Directions Act 2015 ss31, 32). Directions at the end of the trial may also be necessary to address any risk of unfair prejudice arising from the reliance on the witness’ previous statements (Bray v R (2014) 46 VR 623; DPP v BB & QN (2010) 29 VR 110).
  11. Where unreliability directions are sought in relation to hearsay evidence from an unavailable witness, it may be appropriate to inform the jury of:

Last updated: 11 July 2018

In This Section

2.4.1 – Charge: Unavailable witness

See Also

Victorian Criminal Charge Book

Part 1: Preliminary Direction

1.1 – Introductory Remarks

1.2 – Jury Empanelment

1.3 – Selecting a Foreperson

1.4 – The Role of Judge and Jury

1.5 – Decide Solely on the Evidence

1.6 – Assessing Witnesses

1.7 – Onus and Standard of Proof

1.8 - Separate Consideration

1.9 - Alternative verdicts

1.10 – Trial Procedure

1.11 - Consolidated preliminary directions

Part 2: Directions in Running

2.1 - Views

2.2 - Providing Documents to the Jury

2.3 – Other Procedures for Taking Evidence

2.5 – Witness invoking Evidence Act 2008 s128

Part 3: Final Directions

3.1 - Directions Under Jury Directions Act 2015

3.2 - Overview of Final Directions

3.3 - Review of the Role of the Judge and Jury

3.4 - Review of the Requirement to Decide Solely on the Evidence

3.5 - Review of the Assessment of Witnesses

3.6 - Circumstantial Evidence and Inferences

3.7 - Review of the Onus and Standard of Proof

3.8 - Review of Separate Consideration

3.9 - Judge’s Summing Up on Issues and Evidence

3.10 - Alternative Verdicts

3.11 - Unanimous Verdicts and Extended Jury Unanimity

3.12 - Taking Verdicts

3.13 - Perseverance and Majority Verdict Directions

3.14 - Intermediaries and ground rules explained

3.15 - Concluding Remarks

3.16 - Consolidated final directions

Part 4: Evidentiary Directions

4.1 - The Accused as a Witness

4.2 - Child Witnesses

4.3 - Character Evidence

4.4 - Prosecution Witness's Motive to Lie

4.5 - Confessions and Admissions

4.6 - Incriminating Conduct (Post Offence Lies and Conduct)

4.7 - Corroboration (General Principles)

4.8 - Delayed Complaint

4.9 - Distress

4.10 - Prosecution Failure to Call or Question Witnesses

4.11 - Defence Failure to Call Witnesses

4.12 - Failure to Challenge Evidence (Browne v Dunn)

4.13 - Identification Evidence

4.14 - Opinion Evidence

4.15 - Previous Representations (Hearsay, Recent Complaint and Prior Statements)

4.16 - Silence in Response to People in Authority

4.17 - Silence in Response to Equal Parties

4.18 - Tendency Evidence

4.19 - Coincidence Evidence

4.20 - Other forms of other misconduct evidence

4.21 - Unfavourable Witnesses

4.22 - Unreliable Evidence Warning

4.23 - Criminally Concerned Witness Warnings

4.24 - Prison Informer Warnings

4.25 - Word Against Word Cases

4.26 - Differences in a Complainant’s Account

4.27 - Alibi

Part 5: Complicity

5.1 - Overview

5.2 - Statutory Complicity (From 1/11/14)

5.3 - Joint Criminal Enterprise (Pre-1/11/14)

5.4 - Extended Common Purpose (Pre-1/11/14)

5.5 - Aiding, Abetting, Counselling or Procuring (Pre-1/11/14)

5.6 - Assist Offender

5.7 – Commonwealth Complicity (s 11.2)

5.8 – Commonwealth Joint Commission (s 11.2A)

5.9 - Innocent Agent (Victorian Offences)

5.10 - Commission by Proxy (Commonwealth offences)

Part 6: Conspiracy, Incitement and Attempts

6.1 - Conspiracy to Commit an Offence (Victoria)

6.2 - Conspiracy (Commonwealth)

6.3 - Incitement (Victoria)

6.4 - Attempt (Victoria)

Part 7: Victorian Offences

7.1 - General Directions

7.2 - Homicide

7.3 - Sexual Offences

7.4 - Other Offences Against the Person

7.5 - Dishonesty and Property Offences

7.6 - Drug Offences

7.7 – Occupational Health and Safety

7.8 - Offences against justice

Part 8: Victorian Defences

8.1 - Statutory Self-Defence (From 1/11/14)

8.2 - Statutory Self-Defence (Pre - 1/11/14) and Defensive Homicide

8.3 - Common Law Self-Defence

8.4 - Mental Impairment

8.5 - Statutory Intoxication (From 1/11/14)

8.6 - Statutory Intoxication (23/11/05 - 31/10/14)

8.7 - Common Law Intoxication

8.8 - Automatism

8.9 - Statutory Duress (From 1/11/14)

8.10 - Statutory Duress (23/11/05 - 31/10/14)

8.11 - Common Law Duress

8.12 - Provocation

8.13 - Suicide Pact

8.14 - Powers of arrest

8.15 - Police search and seizure powers without a warrant

Part 9: Commonwealth Offences

9.1 - Commonwealth Drug Offences

9.2 - People Smuggling (Basic Offence)

9.3 - People Smuggling (5 or More People)

9.4 - Use of carriage service for child pornography material

Part 10: Unfitness to Stand Trial

10.1 – Investigations into Unfitness to Stand Trial

10.2 – Special Hearings