Making of direction for audio visual appearance in section 42JA or 42K(2) proceedings
42M Making of direction for audio visual appearance in section 42JA or 42K(2) proceedings
S. 42M (Heading) inserted by No. 38/2016 s. 6(1), amended by No. 11/2021 s. 11(1).
S. 42M inserted by No. 4/1997 s. 3.
S. 42M(1) amended by Nos 68/2009 s. 97(Sch. item 54.33), 38/2016 s. 6(2), 11/2021 s. 11(2).
A court may direct that an accused appear before it by audio visual link in a proceeding in which, by virtue of a provision of section 42JA (other than section 42JA(3)) or section 42K(2), physical appearance would otherwise be required if it is satisfied, on an application made in accordance with this section, that—
appearance by audio visual link is consistent with the interests of justice; and
is reasonably practicable in the circumstances.
Unless an application for the making of a direction referred to in subsection (1) is made with the consent of all parties to the proceeding, the court may only grant such an application if satisfied that exceptional circumstances exist.
S. 42M(3) amended by No. 68/2009 s. 97(Sch. item 54.34).
An application for a direction referred to in subsection (1) may be made by or on behalf of the accused or the prosecution at any time up to 14 days before the day on which the accused is due to appear or any shorter period before that day that is fixed by the court because of the existence of a good and sufficient reason.
An application is made by filing with the court a notice in the form (if any) prescribed by rules of court and stating the grounds on which it is made and serving a copy on any other party in accordance with any rules of court.
S. 42M(5) amended by No. 68/2009 s. 97(Sch. item 54.35).
With leave of the court, an application for a direction referred to in subsection (1) may be made by or on behalf of the accused or the prosecution at any time in the course of the proceeding to which the direction being sought relates, irrespective of whether an application by a party for such a direction has previously been refused by the court.
Subsection (4) does not apply to an application made in accordance with subsection (5).
A court may also make a direction referred to in subsection (1) on its own initiative at any time in the course of the proceeding to which the direction relates, irrespective of whether an application made in accordance with this section has previously been refused by it, if the court is satisfied that exceptional circumstances exist.
S. 42M(8) amended by No. 68/2009 s. 97(Sch. item 54.35).
Any victim of the offence which the accused is alleged to have committed may address, or make a written submission to, the court in opposition to the making of a direction referred to in subsection (1).
S. 42M(8A) inserted by No. 11/2021 s. 11(3).
An address to the court by a victim under subsection (8) may be given—
in person; or
by audio visual link; or
by audio link.
The exercise of the power conferred on a court to make a direction referred to in subsection (1) is subject to any practice directions.
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