An order prohibiting a prosecution witness from giving evidence is an interlocutory order appealable under s 5F(2) of the Criminal Appeal Act 1912 (NSW), not a decision on admissibility subject to the limitation in s 5F(3A). A prosecution witness who has been present during compulsory examinations of an accused or has had access to compulsorily acquired material may be prohibited from giving evidence where permitting the evidence would alter the accusatorial process in a fundamental sense, particularly where cross-examination would be hindered. However, unlawful dissemination of compulsorily acquired material does not automatically warrant a permanent stay where remedial steps have been taken, including appointment of a new prosecution team and exclusion of the tainted witness. Legal professional privilege over prosecution conference notes cannot be compelled to be waived to enable an accused to investigate possible inadvertent disclosure.
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