A protected witness is not 'available to be called as a witness' under s 34CA(1)(b)(i) of the Evidence Act 1929 (SA) merely because the witness is within the jurisdiction; the party seeking to adduce the out-of-court statement must intend to call the witness if required. Section 9 of the Evidence Act (competence to give sworn/unsworn evidence) must be considered before evidence is admitted under s 34CA. The inherent speculation in assessing the likely results of cross-examination under s 34CA(2) cannot justify refusing permission to cross-examine.
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