Gesler v State of Tasmania

The Supreme Court of Tasmania, Court of Criminal Appeal, heard an appeal in the matter of *Gesler v State of Tasmania*. The dispute concerned the admissibility of hearsay evidence, specifically whether a witness who refused to give evidence was to be considered "unavailable" for the purposes of admitting their previous representations.

The central legal issue before the Court was the interpretation of the term "unavailable" under the *Evidence Act 2001* (Tas). Specifically, the Court had to determine what constitutes "all reasonable steps" taken to compel a witness to give evidence, particularly when that witness has indicated a refusal to testify.

The Court reasoned that the statutory definition of unavailability requires a diligent and exhaustive effort to secure the witness's attendance and testimony. Merely establishing that a witness is unwilling to give evidence is insufficient. The Court considered the steps taken by the prosecution to compel the witness's attendance and testimony, including the issuance of a subpoena and attempts to persuade the witness to give evidence. Ultimately, the Court found that the steps taken were not sufficient to render the witness unavailable under the Act.

Leave to appeal was granted, but the appeal was dismissed.