Kane (a pseudonym) v The King; Moon (a pseudonym) v The King

In the case of Kane v The King and Moon v The King, the applicants sought an interlocutory appeal from the refusal of the trial judge to certify that the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case. The applicants were facing trial for aiding, abetting, counselling or procuring attempted possession of a commercial quantity of an unlawfully imported border controlled drug, cocaine. The court was required to decide whether the trial judge should have directed that a report by a US law enforcement agent, containing hearsay representations, be excluded as foreign material, and whether the probative value of the evidence was outweighed by the danger of unfair prejudice. The court held that the considerations of probative value and unfair prejudice under the Foreign Evidence Act 1994 (Cth) and the Evidence Act 2008 (Vic) should be weighed together, and that the probative value of the evidence outweighed any unfair prejudice to the defence.

The court examined the legislative intent behind the Foreign Evidence Act and the Evidence Act, noting that the absence of persons who could shed light upon the representations recorded in the documents was not sufficient to warrant a discretionary exclusion under section 25 of the Foreign Evidence Act. The court held that using section 137 of the Evidence Act to exclude the evidence would be to undermine the legislative effect of the 2010 amendments to the Foreign Evidence Act. The court concluded that the evidence had significant probative value and was not outweighed by any unfair prejudice to the defence. The court held that an appropriate direction to the jury under section 165 of the Evidence Act would ordinarily overcome the problem to the extent that the statement should be admitted. The court refused to exclude the adducing of the report and held that the application to exclude the evidence was refused.