Under s 223(1) of the Criminal Procedure Act 2009 (Vic), a trial judge may permit the jury unsupervised access to VARE and special hearing recordings in the jury room during deliberations, provided the statutory purpose of helping the jury understand the issues or evidence is satisfied and appropriate safeguards are in place (such as providing all relevant recordings, not just the complainant's evidence). Pre-CPA authorities treating such access as a fundamental irregularity do not govern the current statutory position. However, trial judges making comments during s 44N child witness directions must not make observations that amount to criticism of cross-examination or affirmation of the complainant's evidence, as this may result in a miscarriage of justice.
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