106Video record evidence

1. Without limiting section 105(1)(a)(iii), in a criminal proceeding, the video record evidence of a witness that is to be offered as an alternative way of giving evidence in chief at the trial must, if a video record of that witness's evidence was filed as a formal statement under the Criminal Procedure Act 2011 or the witness gave oral evidence by way of a video record in accordance with an oral evidence order made under that Act, include that video record.

2. A video record offered by the prosecution as an alternative way of giving evidence in chief must be recorded and dealt with in compliance with any regulations made under this Act.

3. A video record that is to be offered by the prosecution as an alternative way of giving evidence in chief must be offered for viewing by a defendant or his or her lawyer before it is offered in evidence (including prior to any pre-trial consideration of admissibility), unless the Judge directs otherwise.

4. A copy of a video record that is to be offered by the prosecution as an alternative way of giving evidence in chief must be given to a defendant’s lawyer, subject to compliance with any conditions the Judge directs, unless subsection (4A) applies, or, if subsection (4A) does not apply, the Judge directs otherwise.

5. Subject to subsections (4B) and (4C), a defendant’s lawyer is not entitled to be given a copy of a video record under subsection (4) of—

6. any child complainant; or
7. any witness (including an adult complainant) in a sexual case or a violent case.

8. On the application of a defendant, a Judge may order that a copy of a video record or a part of a video record to which subsection (4A) applies be given to the defendant’s lawyer before it is offered in evidence.

9. When considering an application under subsection (4B), the Judge must have regard to—

10. whether the interests of justice require departure from the usual procedure under subsection (4A) in the particular case; and
11. the nature of the evidence contained on the video record; and
12. the ability of the defendant or his or her lawyer to view the video record under subsection (3) and to otherwise access the content of the video record, including by way of a transcript of the video record.

13. All parties must be given the opportunity to make submissions about the admissibility of all or any part of a video record that is to be offered as an alternative way of giving evidence.

14. If the defendant indicates he or she wishes to object to the admissibility of all or any part of a video record that is to be offered by the prosecution as an alternative way of giving evidence in chief, that video record must be viewed by the Judge.

15. The Judge may order to be excised from a video record offered as evidence any material that, if the evidence were given in the ordinary way, would or could be excluded in accordance with this Act.

16. The Judge may admit a video record that is recorded and offered as evidence substantially in accordance with the terms of any direction under this subpart and the terms of regulations referred to in subsection (2), despite a failure to observe strictly all of those terms.

17. To avoid doubt, subsections (3) to (4C) do not apply to any lawyer representing the Crown who may be given a copy of a video record (which may or may not be offered by the prosecution as an alternative way of giving evidence) at any time for the purpose of providing legal advice to the Police before a charging document is filed and for conducting the prosecution once proceedings have commenced.

18. In this section, a reference to a person being given a video record includes a reference to the person being given access to the video record, for example, being given access to an electronic copy of the video record through an Internet site.