The test for discharge of a jury after inadvertent exposure to prejudicial material is whether the incident gives rise to a reasonable apprehension on the part of a fair-minded and informed member of the public that the jury will not discharge its task impartially, notwithstanding a warning by the trial judge. Section 20A(a) of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) does not confer an absolute right on the accused to see witnesses giving evidence by video link; the trial judge retains a discretion to restrict the accused's view where the interests of the administration of justice require it, even where identification is in issue. Evidence of preparatory criminal activity leading to the commission of the charged offence does not generally carry the risk of impermissible propensity reasoning and may be distinguished from propensity evidence of the kind considered in BRS v The Queen.
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