Moore (a pseudonym) v The King

The High Court of Australia considered an interlocutory appeal by the appellant, who was facing trial for several offences, including assault and false imprisonment, allegedly committed against the complainant. The complainant had since passed away. The respondent sought to adduce evidence of previous representations made by the complainant under section 65 of the *Evidence Act 2008* (Vic), which allows for hearsay evidence in criminal proceedings when the maker of the representation is unavailable. The trial judge had ruled that this evidence satisfied section 65 and refused to exclude it under section 137 of the *Evidence Act*, which permits a judge to exclude evidence if its probative value is outweighed by the danger of unfair prejudice.

The central legal issues before the High Court were whether the Court of Appeal had applied the correct standard of review when assessing the trial judge's decision under section 137, and whether the Court of Appeal had erred in its assessment of the danger of unfair prejudice arising from the admission of the complainant's previous representations. The appellant argued that the Court of Appeal should have applied the principles from *House v The King* (1936) 55 CLR 499, which involves a more deferential approach to discretionary decisions, or alternatively, a "correctness" standard. The appellant also contended that the danger of unfair prejudice, particularly due to the inability to cross-examine the complainant, outweighed the high probative value of the evidence.

The High Court held that the Court of Appeal did not err in its assessment. It was noted that while it is generally assumed juries will follow judicial directions, this assumption is not immutable and is protected by the exclusionary powers under sections 135 and 137 of the *Evidence Act*. In the context of this case, the Court of Appeal's observation that it must be assumed the jury would follow directions to ameliorate the danger of prejudice was soundly based, as the danger of prejudice was considered modest. The High Court concluded that the danger of prejudice to the appellant did not outweigh the probative value of the evidence, and therefore, the trial judge's decision not to exclude the evidence under section 137 was correct.

The appeal was dismissed.