The definition of 'exceptional circumstances' in s 3 of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) is non-exhaustive and may encompass persistent misbehaviour by an accused that significantly disrupts the trial, authorising a direction under s 42M(7) for audiovisual appearance. Sections 246 and 330 of the Criminal Procedure Act 2009 do not constitute an exhaustive code governing an accused's right to be present at trial; the common law right subsists alongside the statutory obligation. An accused may be taken to have waived the right to be present where misbehaviour makes trial impossible and is intended to have that effect, though such circumstances will be rare for specific parts of a trial such as re-examination of a witness.
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