Moore (a pseudonym) v The King

In Moore v The King, the appellant, Moore, sought to appeal against an interlocutory decision of the County Court of Victoria, which admitted hearsay evidence of statements made by the deceased complainant in the context of criminal proceedings against him for causing injury intentionally or recklessly, threatening to kill or cause serious injury, false imprisonment, and reckless conduct endangering life or serious injury. The court was tasked with determining whether the hearsay evidence was admissible under section 65 of the Evidence Act 2008, considering the unavailability of the complainant due to her death, and whether the probative value of the evidence outweighed any unfair prejudice to the appellant. The appellant argued that the hearsay evidence should not have been admitted because it did not meet the criteria set out in subsections 65(2)(b) and (c) of the Act. These subsections require that the representation was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, or was made in circumstances that make it highly probable that the representation is reliable.

The court examined the circumstances under which the statements were made, including whether they were made spontaneously and in the immediate aftermath of the events in question. The judge had accepted that the statements were made while the complainant was still under the influence of the immediate pressure of the events, and in a context that made it unlikely that they were fabrications. The court also considered whether the inability to cross-examine the complainant caused unfair prejudice to the appellant, and whether this was remediable by jury directions. The court concluded that the probative value of the evidence was not outweighed by the unfair prejudice to the appellant, and that the prejudicial effect could be remediated by appropriate jury directions. Consequently, the court granted leave to appeal but affirmed the interlocutory decision to admit the hearsay evidence.