The Court declined to make restricted evidence obtained under compulsory examination available to the prosecution or accused under s 43A(5) of the Major Crime (Investigative Powers) Act 2004 (Vic), holding that the interests of justice did not so require where there were grave safety risks to the examinee and others, the restricted evidence was of limited probative value and largely peripheral to the real issues, the examinee was highly unlikely to be called as a witness by either side, and the evidence contained no important exculpatory material or novel exculpatory theories. The Court articulated a non-exhaustive list of 13 potentially relevant considerations for the s 43A(5) discretion, and held that the prosecution's duty of full disclosure cannot be determinative of the separate statutory question of whether the threshold for release of restricted evidence has been met. The ruling was made on an interlocutory basis, with the Court noting the matter could be revisited if circumstances materially changed.
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