When it appears from the outset of a prosecution witness's evidence that they may be in a de facto relationship with the accused, the trial judge must immediately send the jury out and conduct a voir dire to determine whether the witness has a right to object under s 18 of the Evidence Act 1995 (NSW). The judge must satisfy himself that the witness is aware of the effect of the section, including the matters in subsections (6) and (7), and cannot rely on vague assurances from the Crown that 'advice' has been given. A retrospective voir dire conducted after the witness has completed evidence before the jury is unlikely to cure the error. However, the wrongful admission of such evidence does not necessarily result in a substantial miscarriage of justice where the remaining evidence proves guilt beyond reasonable doubt and the failure to raise s 18 was a forensic choice of defence counsel.
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