Your client has a commercial trial which is still months, even years, off. One of his witnesses is gravely ill and might not survive until the trial.

What are your options?

You probably have three:

• Arrange to have the sick witness’s evidence taken on commission or in a de bene esse examination;
• Take an affidavit from that witness and tender it at trial in the event that the witness dies in the interim; or
• Do nothing beyond simply hoping for the best and trusting to the power of modern medicine and/or prayer.

This dilemma was one of several interesting issues which arose in Goddard Elliott v Fritsch [2012] VSC 87 (see my earlier blogs of 29 March 2012 and 2 April 2012 – both below – dealing with other aspects of the same case).

A witness for the defendant had died almost 2 years before the trial began. At trial the defendant sought to tender an affidavit that the witness had sworn only four days before his death, for the purposes of the trial. Justice Bell described the affidavit as having high probative value despite parts of it being “misleading and confusing”.

But was it admissible?

The plaintiff objected. It argued that the affidavit was clearly hearsay and should be excluded as such in accordance with section 59(1) of the Evidence Act 2008. The defendant countered that the exceptions to the hearsay rule in s 63 of the Evidence Act applied in the circumstances.

Bell J resolved the argument by looking to the court’s general discretion under s 135 of the Evidence Act to exclude evidence. He concluded that while the affidavit was prejudicial to the plaintiff’s case it was not unfairly prejudicial.

“I am not satisfied that the inability of [the plaintiff] to cross-examine [the affidavit’s deponent] will result in unfair prejudice such that the probative value of [the dead man’s] evidence is substantially outweighed by the danger of the evidence being unfairly prejudicial to that party. However, [the] affidavit must be given less weight because [the deponent] was not able to be cross-examined.”