This Chapter deals with evidence that:

1. is disputed
2. is illegally or improperly obtained
3. is derived from hypnosis or EDMR
4. will be given by AVL.

In some matters defence may advise that the admissibility of certain evidence is to be challenged. If there has not been a pre-trial ruling made with respect to this evidence, care should be taken in opening a case to a jury to ensure that nothing is said that may lead to a subsequent discharge of the jury.

Where evidence intended to be led appears on reasonable grounds to have been unlawfully or improperly obtained, the prosecutor must promptly inform the accused and make a copy of that evidence available to him/her.

Evidence obtained by either hypnosis or EMDR cannot be used in any case unless it has been approved by the Director or a Deputy Director.

Prosecutors must request the court to allow medical practitioners to give evidence at a time and by a means most convenient to them. This includes interposing the witness where necessary and arranging well in advance of the trial or hearing for the evidence to be given by AVL.

Section 5BAA of the Evidence (Audio and Audio Visual Links) Act 1998 provides that ordinarily a “government agency witness” must give evidence to court by audio link or AVL from any place within New South Wales.

When arranging the attendance of witnesses at trial the convenience of government agency witnesses is the most important consideration, regardless of any perceptions a prosecutor may have about the evidence being diminished by reason of its being given remotely.

Supreme Court Practice Note SC Gen 15 and Local Court Practice Note Crim 1 provide that parties must give the court and the other party no less than 10 working days’ notice of the use of AVL. The best practice to be adopted is that the court should be advised of the need for AVL at the time the trial is fixed for hearing.