Under s 18(4) of the Evidence Act 1995 (NSW), a trial judge must satisfy himself or herself that a prospective witness who may object to giving evidence is aware not only of the right to object but also of the criteria in s 18(6) (likelihood of harm outweighing desirability of evidence) and the mandatory considerations in s 18(7). Where the witness is unrepresented, the judge must explain these matters directly. A prospective witness who participates in a s 18 hearing is a 'party' entitled to seek leave to appeal under s 5F(3) of the Criminal Appeal Act 1912 (NSW). The question of whether s 18(4) requires awareness of the full operation of the section or merely the general right to object was contested, with Wilson J dissenting on a narrower construction.
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