Section 306J(1) of the Criminal Procedure Act 1986 (NSW) requires a forward-looking evaluative judgment about the effect of the complainant's absence on the trial to come, not a backward-looking inquiry into whether counsel's cross-examination at the aborted trial reflected considered forensic decisions. The fact that cross-examination at the aborted trial was competent and thorough is relevant but not determinative. Section 306J(1)(b) does not require that the new material was not reasonably available at the original proceedings. Where the error of law deprives an accused of the opportunity to cross-examine a complainant whose credibility is central to the Crown case, the proviso to s 6(1) of the Criminal Appeal Act 1912 cannot be applied.
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