106GDirection that sexual case complainant’s or propensity witness’s cross-examination evidence not be given by video record made before trial

1. Despite section 106F(4), the Judge may give a direction under section 106F that all or any of the complainant’s or witness’s cross-examination evidence (as defined in section 106D(7)) not be given by a video record made before the trial only if the Judge considers that—

2. the giving of that evidence in that way would present a real risk to the fairness of the trial; and
3. that risk cannot be mitigated adequately in any other way.

4. A direction referred to in subsection (1) may be made—

5. on an application made under section 106F; or
6. on the Judge’s own initiative.

7. For the purposes of subsection (1), the Judge must, in addition to any other matter that the Judge considers relevant, have regard to whether the witness is likely to need to give further evidence (including cross-examination evidence) after the making of a video record (for example, due to further disclosure).

8. For the purposes of subsection (1), it must not be presumed, and must be shown clearly in the circumstances of the case, that the following consequences of cross-examination before trial would present a real risk to the fairness of the trial:

9. the making of a video record will require the defence to disclose all or any of its strategy earlier than if all of the evidence of the complainant or witness were given in the ordinary way or in a different alternative way:
10. the defence will be unable to tailor its cross-examination to a jury’s reaction:
11. the making of a video record before the trial will involve preparation and other effort extra to that required for the trial:
12. complying with or using any appropriate practical and technical means for the making of a video record will involve more difficulty for all or any parties than if all of the complainant’s or witness’s evidence were given at the trial.