Evidence (Audio and Audio Visual Links) Act 1998 No 105
Current version for 21 June 2013 to date (accessed 20 December 2014 at 17:35)
Part 1A

Part 1A Use of audio links or audio visual links with places in NSW, non-participating States and foreign countries in proceedings in NSW courts

5A   Application of this Part

(1)  This Part applies to any proceeding (including a criminal proceeding) in or before a NSW court.
(2)  An application cannot be made, and the court may not give a direction, under this Part for the giving of evidence or making of a submission to the court by audio link or audio visual link from any place outside New South Wales that is a participating State.
(3)  An application cannot be made, and the court may not give a direction, under this Part for the giving of evidence or making of a submission to the court by audio link or audio visual link from any place in New Zealand.
Note. Parts 4 and 5 of the Evidence and Procedure (New Zealand) Act 1994 of the Commonwealth make provision for audio links and audio visual links with New Zealand.

5B   Taking evidence and submissions from outside courtroom or place where court is sitting—proceedings generally

(1)  Subject to any applicable rules of court, subsection (2A) and section 5BAA, a NSW court may, either on its own motion in, or on the application of a party to, a proceeding before the court, direct that a person (whether or not a party to the proceeding) give evidence or make a submission to the court by audio link or audio visual link from any place within or outside New South Wales, including a place outside Australia, other than the courtroom or other place at which the court is sitting.
(2)  The court must not make such a direction if:
(a)  the necessary facilities are unavailable or cannot reasonably be made available, or
(b)  the court is satisfied that the evidence or submission can more conveniently be given or made in the courtroom or other place at which the court is sitting, or
(c)  the court is satisfied that the direction would be unfair to the party, or
(d)  the court is satisfied that the person in respect of whom the direction is sought will not give evidence or make the submission.
(2A)  A court must not make a direction under this Part in relation to the giving of evidence or making of a submission by audio visual link by any accused detainee in any criminal proceeding in relation to the detainee concerning an offence alleged to have been committed by the detainee. However, this subsection does not prevent the making of such a direction in relation to an accused detainee in any other proceeding to which this Part applies.
Note. Part 1B of this Act contains provisions with respect to the appearance of accused detainees who are in custody in criminal proceedings.
(3)  In a proceeding in which a party opposes the making of a direction for the giving of evidence or making of a submission to the court by audio link or audio visual link from any place within New South Wales other than the courtroom or other place where the court is sitting, the court must not make the direction unless the party making the application satisfies the court that it is in the interests of the administration of justice for the court to do so.

5BAA   Taking evidence of government agency witnesses from outside courtroom or place where court is sitting—proceedings generally

(1)  Subject to any applicable rules of court, a government agency witness must, unless the court otherwise directs, give evidence to the court by audio link or audio visual link from any place within New South Wales.
(2)  Subsection (1) does not apply unless the necessary audio links or audio visual links are available or can reasonably be made available.
(3)  The court may make a direction under subsection (1) on its own motion or on the application of a party to the proceedings.
(4)  The court may make such a direction only if it is satisfied:
(a)  that the evidence to be given is likely to be contentious, and
(b)  that it is in the interests of the administration of justice for the government agency witness to give evidence by appearing physically before the court.
(5)  In this section:

expert, in relation to any issue, means a person who has such knowledge or experience of, or in connection with, that issue, or issues of the character of that issue, that his or her opinion on that issue would be admissible in evidence.

expert’s report means a written statement by an expert (whether or not an expert witness in the proceedings concerned) that sets out the expert’s opinion and the facts, and assumptions of fact, on which the opinion is based and includes a hospital report.

government agency witness means the following:

(a)  a member of staff of the Government Service or the NSW Health Service, or a person employed in or engaged by any government agency, who has provided an expert’s report for use in evidence in proceedings or proposed proceedings or who is called as an expert to give opinion evidence in proceedings,
(b)  a member of the NSW Police Force called to give evidence in proceedings to corroborate evidence in chief given by another member of the NSW Police Force for the prosecution,
(c)  any other witness of a class prescribed by the regulations.

hospital report means a written statement concerning a patient, made by or on behalf of a hospital, that the party serving the statement intends to adduce in evidence in chief at the trial.

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