A ruling under cl 87 of Sch 2 to the Criminal Procedure Act 1986 (NSW) refusing leave to recall child witnesses for further pre-recorded evidence is not an 'interlocutory judgment or order' amenable to appeal under s 5F(3) of the Criminal Appeal Act 1912 (NSW), being analogous to an evidentiary ruling. Clause 87(3)(b) ('otherwise in the interests of justice') is not a freestanding basis for granting leave involving a bare balancing exercise; rather, cl 87 should be construed as a prohibition subject to a limited discretionary exception, consistently with the dominant purpose of protecting child witnesses from trauma. The question of whether the trial judge's refusal constituted House v The King error was left unresolved by the majority, with Hamill J dissenting on this point.
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