Evidence Act 1929

Subject to this section, the court may, in the trial of a charge of an offence, or in a pre‑trial special hearing conducted in accordance with section 12AB, order that the evidence of a witness be admitted in the form of an audio visual record.

Subject to subsection (2a), an application for an order under subsection (1) must—

be made in writing by the party wishing to have the audio visual record of the evidence admitted under this section; and

be filed in the court; and

within

otherwise be made in accordance with the rules of court.

An application for an order to admit an audio visual record of the examination, cross‑examination or re‑examination of a witness at a pre‑trial special hearing may be made orally at the pre‑trial special hearing or in accordance with any directions of the court.

An audio visual record of the evidence of a witness may be admitted under this section if the recording—

has been made in a pre‑trial special hearing conducted in accordance with section 12AB;

has been made pursuant to Part 17 Division 3 of the Summary

the court is satisfied as to the witness's capacity to give sworn or unsworn evidence at the time the recording was made; and

the court is satisfied that the respondent has been given a reasonable opportunity to view the recording; and

the witness is available, if required, for further examination, cross‑examination or re‑examination during the course of the trial or, if the order for admission of the recording is being sought in a pre‑trial special hearing under section 12AB, during the course of the pre‑trial special hearing.

The court's discretion to exclude evidence is not affected by subsection (3) and the court may—

rule as inadmissible the whole or any part of the recording; or

before admitting the recording, order that it be edited so as to exclude evidence that is inadmissible for any reason.

Despite subsection (3)(b)(iii), the witness cannot be further examined, cross‑examined or re‑examined on the evidence admitted under this section without the permission of the court which may only be given, on application by a party to the proceedings—

if the court is satisfied that a party to the proceedings has, since the making of the audio visual record, become aware of a matter of which the party could not reasonably have been aware at the time the record was made; or

if the witness gives evidence in the trial or, if the order for admission of the recording is being sought in a pre‑trial special hearing under section 12AB, during the course of the pre‑trial special hearing, apart from or in addition to evidence admitted under this section in the form of an audio visual record and the court is satisfied that it is in the interests of justice that the witness be further examined, cross‑examined or re‑examined; or

if the 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.

If a court admits evidence in the form of an audio visual record under this section, the judge must—

explain to the jury that the law allows the court to admit evidence in this form; and

warn the jury—

not to draw from the admission of evidence in that form any inference adverse to the defendant; and

not to allow the admission of evidence in that form to influence the weight to be given to the evidence.