Huici v The King

In the matter of Huici v The King, the applicant sought leave to appeal against an interlocutory decision concerning the admissibility of certain hearsay evidence in a criminal proceeding. The case involved allegations of sexual assault against the applicant, with the primary evidence being representations made by the elderly complainant to various individuals, including medical staff, police officers, and family members, following the alleged incident. The central legal issue was whether these representations could be admitted under an exception to the hearsay rule in the Evidence Act 2008 if the complainant was unavailable to testify at the trial. Specifically, the court had to determine if the Video Assisted Rape Examination (VARE) interview conducted with the complainant could be considered reliable enough to be admitted as evidence.

The court examined the provisions of the Evidence Act, particularly section 65, which allows for exceptions to the hearsay rule in criminal proceedings if the maker of the representation is unavailable. The court noted that the hearsay rule, as set out in section 59, generally prohibits evidence of a previous representation to prove the existence of an asserted fact. However, section 65(2) provides exceptions, including when the representation was made in circumstances that make it highly probable that the representation is reliable. The court considered the timing and circumstances of the representations, including the VARE interview, and whether they were made shortly after the incident or under conditions that could ensure their reliability. The court also considered whether the unavailability of the complainant to testify at trial would cause unfair prejudice to the applicant.

After reviewing the evidence and arguments, the court concluded that the VARE interview and other representations made by the complainant shortly after the incident were made under circumstances that made it highly probable that they were reliable. The court held that these representations could be admitted under section 65 of the Evidence Act. The court also found that the unavailability of the complainant did not unfairly prejudice the applicant to the extent that the representations should be excluded. Consequently, the court denied the applicant's application for leave to appeal.

The final orders of the court were that the application for leave to appeal was refused, and the representations made by the complainant, including those from the VARE interview, would be admissible as evidence in the criminal proceeding.