Evidence Act 1929

An order made by the court at the pre‑trial special hearing as to the admission of a recording of evidence of a witness (being an order under section 13BA) is taken to have been made for the purposes of the trial and, subject to subsection (2), is binding on the trial court provided that, during the course of the trial, the witness is available, if required, for further examination, cross‑examination or re‑examination.

An order referred to in subsection (1) is not, however, binding on the trial court if the trial court is satisfied, on application by a party to proceedings and based only on matters that have arisen or become known after the making of the order at the pre‑trial special hearing, that the order should not be binding (either in respect of all or part of the evidence to which the order relates, as the court considers appropriate).

Despite subsection (1), the witness cannot be further examined, cross‑examined or re‑examined at the trial on the evidence admitted pursuant to an order made at the pre‑trial special hearing without the permission of the trial court which may only be given—

if the trial court is satisfied, on application by a party to proceedings, that a party to the proceedings has, since the pre‑trial special hearing, become aware of a matter of which the party could not reasonably have been aware at the time of the pre‑trial special hearing; or

if the witness gives evidence in the trial apart from or in addition to evidence admitted pursuant to an order made at the pre‑trial special hearing and the trial court is satisfied that it is in the interests of justice that the witness be further examined, cross‑examined or re‑examined at the trial; or

if the trial court is satisfied that it is otherwise in the interests of justice to permit the witness to be further examined, cross‑examined or re‑examined.

A reference in this section to the trial court includes any subsequent trial following a stay of proceedings, discontinuance of an earlier trial or an appeal.