Cross-examination directed to a complainant's state of knowledge of sexual matters, as distinct from evidence of particular sexual activity, does not fall within s 36BC of the Evidence Act 1906 (WA) and does not require leave under that section. When objection is taken to cross-examination during pre-recording of evidence, the preferred practice is to allow the evidence to be led and recorded, subject to later editing, unless the evidence would cause significant hardship to the witness. An appellate court may receive fresh evidence under s 40 of the Criminal Appeals Act 2004 (WA) to determine what evidence would have been adduced but for an erroneous ruling, and may apply the proviso where that evidence demonstrates no forensic disadvantage to the appellant.
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