Unsupervised jury access to a VATE tape of a complainant's evidence-in-chief in the jury room during deliberations constitutes a fundamental procedural irregularity in all but exceptional circumstances, and the proviso to s.568(1) of the Crimes Act 1958 will generally not save the resulting convictions. Even if s.19(1) of the Crimes (Criminal Trials) Act 1999 confers a discretion to permit the tape into the jury room, that discretion must be exercised to ensure trial fairness. The safeguards outlined in R v BAH — including replaying in open court, appropriate warnings about disproportionate weight, and consideration of whether to remind the jury of cross-examination — must be followed.
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