106HFurther cross-examination if all evidence of sexual case complainant or propensity witness has been or is to be given by video record made before trial

1. This section applies to a sexual case complainant or propensity witness only if all of their evidence (except any further cross-examination evidence they give under this section) has been or is to be given by video record made before the trial.

2. The defence may apply to a Judge for a direction that the defence be permitted to further cross-examine the complainant or propensity witness after a video record is made of their cross-examination evidence.

3. The Judge may give the direction,—

4. if all parties agree that a recall of the complainant or propensity witness is necessary or desirable, under section 99 of this Act; and
5. in any other case, only if the Judge considers it would be contrary to the interests of justice not to do so (despite section 99 of this Act).

6. For the purposes of subsection (3), the Judge must, in addition to any other matter that the Judge considers relevant, have regard to—

7. whether further evidence, or an additional matter, has been disclosed, or has otherwise come to light, that is directly relevant to the determination of the case:
8. whether that further evidence, or that additional matter, can be adequately addressed without requiring the complainant to be further cross-examined.

9. If the Judge gives the direction, the complainant or propensity witness must give the further cross-examination evidence at trial (and so not by video record made before the trial).

10. However, the Judge may, if satisfied that exceptional circumstances make it impossible or impracticable for the further cross-examination evidence to be given at trial, amend the direction so that the complainant or propensity witness must give the further cross-examination evidence by video record made before the trial.