We discussed the Supreme Court case here last year. The appeal involved argument about the meaning of the term record for the purposes of a judicial review. Argument about the operation of the Evidence Act 2008 was limited. Pagone J's findings were generally upheld.
The Court of Appeal [Tate JA at 32 and onwards, Buchanan JA in agreement] discussed how specific a notice advising of an intention to lead hearsay evidence must be. They took a fairly flexible approach.
Tate JA [at 35]:
35 The submissions on the deficiencies on the form of the notice focused upon that part of the notice which specified that s 65 of the Evidence Act was relied upon but failed to stipulate which particular sub-section was relevant. Section 65 permits the admission into evidence of a previous representation if the person who made the representation ‘is not available to give evidence about an asserted fact’.
36 The notice provided by the prosecutor stated: ‘It is intended to rely on the Evidence Act 2008, s 65(2)(a) or (b) or (c) or (d), s 65(3)(a) or (b) or s 65(8)(a) or (b)’. Some of the sub-sections were clearly not applicable.
37 Section 65 reads:
(1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.
(2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation –(a) was made under a duty to make that representation or to make representations of that kind; or
(b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication; or
(c) was made in circumstances that make it highly probable that the representation is reliable; or
(d) was –(i) against the interests of the person who made it at the time it was made; and
(ii) made in circumstances that make it likely that the representation is reliable.
(3) The hearsay rule does not apply to evidence of a previous representation made in the course of giving evidence in an Australian or overseas proceeding if, in that proceeding, the accused in the proceeding to which this section is being applied -(a) cross-examined the person who made the representation about it; or
(b) had a reasonable opportunity to cross-examine the person who made the representation about it.
(8) The hearsay rule does not apply to –(a) evidence of a previous representation adduced by an accused if the evidence is given by a person who saw, heard or otherwise perceived the representation being made; or
(b) a document tendered as evidence by an accused so far as it contains a previous representation , or another representation to which it is reasonably necessary to refer in order to understand the representation.
38 The trial Judge found that although some of the provisions may not have sustained the application, there was asserted the provisions on which reliance was placed. He found the Magistrate’s conclusion to the contrary not to be sustainable.
39 It was argued on the appeal that the broad reference to a range of sub-sections was not a statement of the particular provisions on which the prosecution intended to rely. It was, rather, a statement of almost every provision on which the prosecution might conceivably rely, although most of them were clearly inapplicable (s. 65(2)(a) or (d)(i), or 65(3)(a) or (b)), especially those that apply to statements adduced by an accused (s 65(8) (a) or (b)). The applicant argued that none of the sub-sections applied and that, in particular, the exception founded upon s 65(2)(b) should be read to reflect only the common law res gestae exception to the hearsay rule which, it was submitted, would preclude reliance upon it by the DPP in the circumstances of the case. Further, it was submitted, his Honour’s analysis leaves s 67(1) and 67(3)(a) with no function to perform.
40 The respondent argued that no prejudice flowed to the defence merely because some of the provisions relied upon may not have sustained the application. What mattered is that at least some of the provisions identified (s 65(2)(b), and perhaps s 65(2)(c)) could, at least arguably, be relied upon, in the circumstances of the case. This would not deny the function of s 67(1) or s 67(3)(a) as there was compliance with both sections, given that reasonable notice was given which did specify the particular provisions relied upon (amongst others), whether or not that reliance might ultimately prove to be justified.
41 The applicant is correct in his submission that most of the sub-sections of s 65 were inapplicable in the circumstances of the case. However, while it is to be expected that the Crown, when giving notice of an intention to adduce hearsay evidence, will identify with some precision the particular provisions sought to be relied upon, there was here no prejudice which flowed to the applicant by the failure to do so. What ultimately matters is whether the conditions under any of the relevant sub-sections relied can be made out. It may be that an analogy could be drawn with the principle that a decision made by an administrative decision-maker purporting to be done under one statutory power which is not available may nevertheless be valid if supported under another statutory power, so long as any pre-conditions to the exercise of that power are satisfied. Whether or not that is so, just as the failure to serve a notice under 67 may not be fatal to the application by the Crown to utilise s 65 of the Evidence Act, in the circumstances of a case (see The Queen v Darmody  VSCA 41, -), in my opinion, so too the failure of the notice here to stipulate the sub-sections relied upon was not fatal to the application by the prosecutor to utilise s 65 of that Act.
The appeal was dismissed and the matter was remitted to the Magistrates' Court for rehearing.