Paulina is a right-wing activist who espouses radical views and spreads misinformation. She has been scaremongering that Australia will be "swamped" by Asians, Muslims and Africans. She was busy amplifying anti-Chinese sentiments during the COVID pandemic. 2. One day, Paulina and her fellow right-wing activist Markie were distributing anti-multiculturalism leaflets outside Victoria train station when an attractive young couple walked by, holding hands. The young lady was of fair complexion with "Asian" features while the young man appeared to be extremely tanned. They both declined the leaflet that Markie offered them, and inexplicably Paulina got upset. 3. Goaded by Markie, Paulina grabbed her umbrella and started following the young couple, while Markie trailed behind in gleeful anticipation of a confrontation. Paulina berated the young lady, accusing her of bringing the "China virus" to Australia and causing the worldwide pandemic. Paulina also ranted at the young man, saying that he was "useless and good for nothing" because he was "black". She called them parasites and harangued them to "go back" to "diseased China" and "dirty Africa". 4. Initially the couple, Juan and Huifen, ignored Paulina. This incensed Paulina who escalated her diatribe into a stoush, striking Juan several times on his face with her umbrella, causing him to bleed and fall to the ground. Paulina and Markie then fled while Huifen attended to Juan. In their panic, Paulina dropped her umbrella while Markie dropped the leaflets he was carrying. 5. An off-duty nurse, Chesna from Craysfoot Public Hospital, was passing by and rendered first aid to him. At Huifen's request, she provided her details and indicated that she would be willing to be a witness, if necessary. Chesna observed that there were bloodstains on the umbrella and on Juan's shirt. The umbrella and leaflets were later picked up by Huifen. 6. Juan attended the Emergency Room of Craysfoot Public Hospital for treatment. He later confided in Haluk, a solicitor at Craysfoot Community Legal Centre (CCLC) where Juan volunteers. Haluk advised Juan to report the incident to the police, but Juan was hesitant as he had a bad experience with the police in his local area previously and he distrusted them. 7. With Haluk's support, Juan decided to pursue a claim against Paulina for battery. Paulina's hubris and intransigence in the matter led to Juan commencing proceedings against her. Both were selfrepresented. During the proceedings before the magistrate, Juan testified that Paulina had attacked 2 him without any provocation or excuse. He adduced into evidence Paulina's umbrella, which had his dried blood on it and his bloodstained shirt. He gave evidence of seeking treatment at Craysfoot Public Hospital and tendered into evidence a medical report from the hospital on his injuries. Huifen gave similar evidence. Paulina raised no objection to the umbrella, Juan's shirt and medical report being received into evidence as she did not think they proved she committed the battery on Juan. 8. In her defence, Paulina testified that Juan threatened her with his fist and that she had only "slapped away" his hand in self-defence. She claimed that the umbrella adduced into evidence by Juan earlier was not hers, asserting that it was fake evidence. Paulina further testified that she saw Juan about to take something out of his bag. She claimed that she feared for her life as she believed that it could be a knife because "that is what people like him always carry". Paulina maintained that she did not cause Juan any injury at all, that it was "just a slap on the hand". She vehemently denied striking Juan on his head or any part of his body with anything. She denied that he suffered any injury at all. 9. Juan challenged Paulina's testimony but she defiantly stood her ground and maintained that she only "slapped away" his hand in self-defence because he was going to punch her. She denied causing him any injury or that the umbrella was hers. Paulina acknowledged that her friend Markie was with her at the time. At the close of the civil proceedings the magistrate had reserved judgment. 10. Juan changed his mind and reported the assault to the local police station in his area. The case was assigned to the Craysfoot Inter-cultural Division (CID), headed by Officer Shakila, to investigate. 11. Officer Shakila interviewed Juan, Huifen and Chesna separately and recorded written statements from each of them. Juan and Huifen both provided accounts of the incident consistent with their testimony in the civil proceedings (see paragraph 7 above). Chesna's statement was broadly consistent with the statements of Juan and Huifen, although not in every respect. Officer Shakila further attended the Registry of the Magistrates' Court to inspect the umbrella that Juan had adduced into evidence in the civil proceedings. 12. The CID team's investigation into Paulina's background uncovered Paulina's personal channel on the TocTicTac video-sharing platform, on which she has posted a number of white supremacist videos. One particular video (the TocTicTac video) uploaded the day before the incident between Paulina and Juan, features Paulina ranting about African and Chinese people. Her tirade includes a boast about how she has a "secret plan to rid Australia of dirty blackies and diseased Chinamen". 13. In the same video Paulina encourages "White patriotic Aussies" to join the "our growing network of concerned Aussies". She says that new members would receive a welcome bundle of gifts. A link in Paulina's TocTicTac Channel leads to www.wanca.com.au which turns out to be the website of "White Australia Network of Concerned Aussies" (WANCA), an anti-multiculturalism and white chauvinistic organisation. A search of the Register of Associations, Clubs and Societies shows Paulina to be the Public Officer of WANCA. 14. On the WANCA website is a message by its Public Officer Paulina offering a bundle of gifts as incentives to "White Aussie patriots" to sign up for membership. The gifts include an umbrella printed with the initials WANCA, the website address www.wanca.com.au and the slogan, "Up with 3 WANCA!", as well as a T-shirt with WANCA and the website address printed on the back and the same slogan printed on the front. 15. The website also has pictures of Paulina holding the umbrella and wearing the T-shirt. In her message, Paulina touts the umbrella as "a useful thing to bash dirty blackies with" and "protection from Chinese viruses - just open it up!" Officer Shakila noted with interest that the umbrella depicted on the WANCA website appears identical to the umbrella that she inspected at the Registry of the Magistrates' Court (see paragraph 13 above). 16. Officer Shakila interviewed Paulina. During the interview, Paulina asserted that Juan confronted her with one of her leaflets, pulled out a knife and threatened to stab her. She said that she slapped Juan's hand away with her handbag in self-defence. Paulina also confirmed that Markie was with her. She said both of them had fled for their lives, terrified of being stabbed by Juan. 17. Paulina denied using any umbrella to hit Juan or having any umbrella at all with her on that day. Paulina maintained that apart from slapping his hand away, which she said was in self-defence, she did not strike Juan or cause him any injury. Paulina admitted being the Public Officer of WANCA but denied that the association was her brainchild, claiming that she was only its public face and that the real driving force behind WANCA was a friend. However, Paulina declined to give the friend's name, stating that the person had nothing to do with the matter. Officer Shakila reduced Paulina's statement into writing and she signed it. 18. Officer Shakila tried to contact Markie a number of times for an interview but received no response. Enquiries by the CID team revealed that Markie had a criminal history. He had been fined in the previous year for breaching government health orders when Victoria was under lockdown due to COVID-19 and for falsely claiming, while under investigation, that he had a medical condition that excused him from complying with the health orders. 19. Officer Shakila prepared a brief for the Prosecution Branch to consider. The prosecutor assigned to consider the brief decided that there was a reasonable prospect of conviction and that it was in the public interest to proceed with a prosecution. 20. Paulina is charged with intentionally or recklessly causing injury to Juan under s.18 of the Crimes Act 1958 (Vic). A brief of evidence is provided to Paulina by the prosecution. The list of prosecution witnesses in the brief includes Juan, Huifen and Chesna. Among the documents included in the brief are copies of the statements provided to Officer Shakila by Juan, Huifen and Chesna and Paulina's own police statement.

Question

Suppose Huifen contracts a new deadly variant of the COVID-19 virus a few days before the summary hearing of the s.18 Crimes Act 1958 charge against Paulina is due to begin. Her condition is so critical that she is put into an induced coma. It is not known whether Huifen will survive.

Discuss how the prosecution will adduce evidence of what Huifen told Officer Shakila regarding the incident between Paulina and Juan (see paragraph 11 of the Facts) with reference to Part 3.2 Divisions 1 and 2 of the Evidence Act 2008 (Vic) and relevant cases (if any).

For purposes of this question you may assume that Huifen's account of what happened is relevant to the prosecution's case against Paulina and you are not required to discuss Part 3.1 of the Act.

You may, where relevant, refer to the Dictionary and other provisions of the Act but otherwise the focus of your answer should be on the relevant provisions of Part 3.2 Divisions 1 and 2 of the Act.

Must refer to the relevant Acts and sections and case law