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provides for exceptions to the hearsay rule in criminal proceedings where the maker of the "first-hand" hearsay representation is not available to give evidence. Subclause (1) provides that the clause applies where a person who made a previous representation is not available to give evidence about an asserted fact. Subclause (2) sets out some specific exceptions to the hearsay rule in such situations. The specific exceptions under subclause (2) are where the representation was made—
under a duty to make that representation; or
when or shortly after the asserted fact occurred and in circumstances where it is unlikely that the representation is a fabrication; or
in circumstances that made it highly probable that the representation was reliable; or
against the interests of the maker at the time the representation was made and it was made in circumstances that make it likely it is reliable.
Subclause (7) provides that a representation is to be taken to be against the maker's interest if it tends to damage the reputation of the maker, incriminate the maker or show that the maker is liable in an action for damages. The Note to subclause (2) sets out that clause 67 contains notice requirements in relation to this subclause. Under clause 67, such notices are to be given in accordance with any regulations or rules of the court made for the purposes of this clause. Subclause (2)(d) is in accordance with the 2005 LRCs' Report finding that admissions against interest cannot automatically be assumed to be reliable (recommendation 8-3). For example, where the person who made the statement is an accomplice or co-accused, he or she may be motivated to downplay the extent of his or her involvement in relevant events and to emphasise the culpability of the other. There might be reason to suspect that an accomplice or co-accused would be more inclined to take such a course where, for example, they have immunity from prosecution. Where the accomplice gains immunity from prosecution, the fact that the representation is against self-interest is no longer a reliable safeguard or indicator of reliability. Accordingly, this subclause contains a requirement that for such admissions to be admitted, they must also be found "to be likely to be reliable". The provision is not restricted to accomplices and co-accused, as statements against interest may arise in other situations. Subclause (3) contains an exception which enables evidence to be given of a representation made in the course of giving evidence in an Australian or overseas proceeding if, in that proceeding the defendant affected has cross-examined, or had a reasonable opportunity to cross-examine, the person who made the representation. The Note to subclause (3) sets out that clause 67 contains notice requirements in relation to this subclause. Subclause (4) sets out that where such evidence (pursuant to subclause (3)) is admitted in a criminal proceeding involving more than one defendant, it cannot be used against a defendant who did not (or did not have reasonable opportunity to) cross- examine the person about the representation. Reasonable opportunity is defined in subclause (5). Subclause (6) sets out that evidence of such a representation (pursuant to subclause (3)) may be adduced by producing a transcript or recording that is authenticated in the specified way. Subclauses (8) and (9) apply to evidence adduced by a defendant. Subclause (8) provides an exception that enables a defendant to adduce evidence of a representation from a person who witnessed it or to tender a document containing the representation, or another representation reasonably necessary to understand it. Subclause (9) provides that if evidence of that kind (pursuant to subclause (8)) has been adduced by a defendant about a particular matter, the prosecution or another defendant may adduce evidence of another previous representation about the matter. The Note to clause 65 explains that clause 4 of Part 2 of the Dictionary is about availability of persons.