On a s.135A(4)(b) leave application, the majority view is that the applicant need only establish serious injury within s.135A(19); conformity with s.135A(2) is a matter for trial. However, the court retains a discretion to refuse leave where the respondent demonstrates the applicant's s.135A(2) case is 'absolutely hopeless' or 'bound to fail', with the evidentiary burden on the respondent. A trial judge has discretion to exclude a surveillance video from cross-examination where the opposing party is denied the opportunity to put its content in context by cross-examining the film's maker. The person who operates the camera, not the person depicted, is the 'maker of the statement' for s.55(1) Evidence Act 1958 purposes. The Court was divided on whether s.135A(2) must be established on the leave application (Ashley AJA) or only at trial (Buchanan and Chernov JJA).
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