Evidence Act 1929 (SA)

South Australia Evidence Act 1929 An Act to consolidate certain Acts relating to evidence. Contents Part 1—Preliminary 1 Short title 4 Interpretation 5 Application of Act (prima facie) to all courts and enabling only Part 2—Witnesses 6 Oaths, affirmations etc 7 Oaths or affirmations taken before a court 9 Unsworn evidence 12 Evidence of young children 12A Warning relating to uncorroborated evidence of child in criminal proceedings 12AB Pre‑trial special hearings 12AC Effect of orders made at pre‑trial special hearing 13 Special arrangements for protecting witnesses from embarrassment, distress etc when giving evidence 13A Special arrangements for protecting vulnerable witnesses when giving evidence in criminal proceedings 13B Cross‑examination of certain witnesses 13BA Admissibility of recorded evidence by certain witnesses in certain criminal proceedings 13BB Admissibility of recorded evidence in domestic violence proceedings 13C Court's power to make audio visual record of evidence of vulnerable witnesses in criminal proceedings 13D Court's power to admit evidence taken in earlier proceedings 14 Entitlement of a witness to be assisted by an interpreter 14A Entitlement of witness to be given communication assistance in certain circumstances 15 Witness not disqualified by interest or crime 16 Parties and their spouses competent and compellable in civil proceedings 18 Accused persons competent to give evidence 18A Abolition of right to make unsworn statement 21 Competence and compellability of witnesses 22 Certain questions may be disallowed 23 Rules as to relevancy 24 Disallowance of certain questions in cross-examination 25 Disallowance of inappropriate questions 25A Abolition of oath belief rule 26 Proof of previous conviction of witness may be given 27 How far a party may discredit his or her own witness 28 Proof of contradictory statements of adverse witness 29 Cross-examination as to previous statements in writing 29A Victim or alleged victim who is a witness entitled to be present in court unless court orders otherwise 29B Prohibited direction in relation to doubts regarding truthfulness or reliability of victim's evidence 29C Evidence of opinions based on specialised knowledge of child behaviour etc Part 3—Miscellaneous rules of evidence Division 1—Miscellaneous rules of evidence in general cases 30 As to comparison of disputed writing 31 Attesting witness need not be called in certain cases 33 Disclosure in action for defamation 34 Admissions by accused persons 34A Proof of commission of offence 34AB Identification evidence 34C Admissibility of documentary evidence as to facts in issue 34CB Direction relating to delay where defendant forensically disadvantaged 34D Weight to be attached to evidence 34E Proof of instrument to validity of which attestation is necessary 34F Presumptions as to documents twenty years old 34G Interpretation and savings 34J Special provision for taking evidence where witness is seriously ill 34K Admissibility of depositions at trial 34KA Admissibility of evidence of out of court statements by unavailable witnesses 34KB Credibility 34KC Stopping the case where evidence is unconvincing 34KD Court's general discretion to exclude evidence Division 2—Miscellaneous rules of evidence in sexual cases 34L Evidence in sexual cases generally 34LA Admissibility of evidence of out of court statements by certain alleged victims of sexual offences 34M Evidence relating to complaint in sexual cases 34N Directions relating to consent in certain sexual cases Division 3—Admissibility of evidence showing discreditable conduct or disposition 34O Application of Division 34P Evidence of discreditable conduct 34Q Use of evidence for other purposes 34R Trial directions 34S Certain matters excluded from consideration of admissibility 34T Severance Division 4—Evidence in proceedings where circumstances of family violence 34U Interpretation 34V Circumstances of family violence 34W Evidence of family violence 34X Certain expert evidence relating to nature and effect of family violence to be admissible 34Y Trial directions relating to evidence of family violence 34Z Review of Division and section 69A Division 5—Evidence relating to Aboriginal traditional laws and customs 34ZA Evidence relating to Aboriginal traditional laws and customs Part 4—Documents and other records Division 1—Public Acts and documents 35 Judicial notice of legislative instruments 35A Evidence of date of assent to Act 36 Proof of votes and proceedings of Parliament 37 Evidentiary value of official publications 37A Proof of Gazette 37B Proof of printing or publishing by Government Printer 37C Proof of Imperial orders-in-Council 38 Foreign and Colonial Acts of State, judgments etc provable by copies 39 Public documents provable by examined or certified copy 40 Proof of documents by examined or certified copies 41 Certifying a false document Division 2—Proof of convictions, acquittals etc 42 Proof of conviction or acquittal of an indictable offence 43 Proof of convictions and orders of courts of summary jurisdiction 43A Proof of identity of person convicted in another State Division 3—Documents relating to ships or transport 44 Registers of British vessels and certificates of registry admissible as prima facie evidence of their contents 45 Documents relating to transportation of persons or goods Division 4—Banking records 46 Interpretation 47 Admission of banking record in evidence 48 Evidence of non-existence of account may be given by affidavit 49 Power to order inspection of banking records etc 50 Bank not compellable to produce records except under order 51 Costs occasioned by default of bank Division 5—Other documents and records 52 Admission of certain documents in evidence 53 Admission of business records in evidence Division 6—Matters relating to communications 54 Electronic communications 55 Telegrams and lettergrams Division 7—Miscellaneous 56 Evidence produced by processes, machines and other devices 57 Modification of best evidence rule Part 6B—Obtaining evidence from outside a court's territorial jurisdiction 59D Interpretation 59E Taking of evidence outside the State 59F Power of South Australian Court to take evidence on request 59G Depositions to be signed 59H Transmission of request 59I Saving provision Part 6C—Use of audio and audio visual links Division 1—Preliminary 59IA Interpretation 59IB Transitional 59IC Application of Part Division 2—Use of interstate audio or audio visual link in proceedings before South Australian courts 59ID Application of this Division 59IE State courts may take evidence and submissions from outside State 59IF Expenses 59IG Counsel entitled to practise Division 3—Use of interstate audio or audio visual link in proceedings in participating States 59IH Application of Division 59II Recognised courts may take evidence or receive submissions from persons in South Australia 59IJ Powers of recognised courts 59IK Orders made by recognised court 59IL Enforcement of order 59IM Privileges, protection and immunity of participants in proceedings in courts of participating States 59IN Recognised court may administer oath in South Australia 59IO Assistance to recognised court 59IP Contempt of recognised courts Division 4—Use of audio visual link or audio link generally 59IQ Appearance etc by audio visual link or audio link 59IR Communication between lawyer and client Part 7—General provisions Division 1—Power to dispense with formal proof 59J Court's power to dispense with formal proof Division 2—Notice of action 60 Sufficiency of notice of action Division 3—Facilitation of proof of certain matters 62 Proof of "public place" in certain cases 62A Proof of place being within municipality etc 63 Proof of foreign law 63A Evidence as to foreign law 64 Proof of matters of history, science etc 65 Reference by court to books, official certificates etc 65A Proof of age Division 4—Taking affidavits etc outside the State 66 Taking of affidavits out of the State 66A Taking of affidavits out of the State by sailors, soldiers and airmen 67 Extension of provisions relating to affidavits to attestation etc of other documents Division 5—Admission of official documents in evidence 67A Admissibility of documents without proof of seal etc Division 6—Power of foreign authority to take evidence 67AB Taking of evidence in this State by foreign authorities Division 7—Select Committee evidence 67B Evidence before the Parliamentary Select Committee of Inquiry into Prostitution Division 8—Evidence of settlement negotiations 67C Exclusion of evidence of settlement negotiations Division 9—Protected communications 67D Interpretation 67E Certain communications to be protected by public interest immunity 67F Evidence of protected communications Division 10—Sensitive material 67G Interpretation and application 67H Meaning of sensitive material 67HA Court may give access to certain sensitive material in certain circumstances 67I Procedures for giving restricted access to sensitive material 67J Improper dissemination of sensitive material Division 11—Religious confession 67K No confessional privilege in child sexual abuse matters Part 8—Publication of evidence Division 1—Preliminary 68 Interpretation Division 2—Orders for clearing court or suppressing publication of evidence etc 69 Order for clearing court 69A Suppression orders 69AB Review of suppression orders 69AC Appeal against suppression order etc 69B Appeals 70 Disobedience to orders under this Division 71 Attorney-General to provide annual report Division 3—Sexual cases 71A Restriction on reporting on sexual offences Division 4—Cases generally 71B Publishers required to report result of certain proceedings 71C Restriction on reporting of proceedings following acquittals Part 8A—Journalists 72 Interpretation 72A Application of Part 72B No liability incurred for failure to disclose identity of informant in court proceedings 72C Review of Part Part 9—Miscellaneous 73 Regulations Schedule 1—Review of identity parade evidence 1 Review and report on section 34AB Schedule 4—Affidavit about proof of identity of person convicted in another State or Territory Legislative history The Parliament of South Australia enacts as follows: Part 1—Preliminary 1—Short title This Act may be cited as the Evidence Act 1929. 4—Interpretation (1) In this Act, unless some other intention is expressed, or implied by the context— canine court companion means a dog accredited by— (a) the Guide Dogs Association of SA and NT Inc.; or (b) a person or body prescribed by the regulations, as a canine court companion; child means a person under the age of 18 years; child sexual offence means a sexual offence committed in relation to a child; cognitive impairment includes the following: (a) a developmental disability (including, for example, an intellectual disability, Down syndrome, cerebral palsy or an autistic spectrum disorder); (b) an acquired disability as a result of illness or injury (including, for example, dementia, a traumatic brain injury or a neurological disorder); (c) a mental illness; communication partner means a person, or a person of a class, approved by the Minister for the purposes of providing assistance in proceedings to a witness with complex communication needs; court includes a tribunal, authority or person invested by law with judicial or quasi-judicial powers, or with authority to make any inquiry or to receive evidence; domestic partner means a person who is a domestic partner within the meaning of the Family Relationships Act 1975, whether declared as such under that Act or not; judge includes the member or members of any court having authority to admit evidence; legal proceeding or proceeding includes any action, trial, inquiry, cause, or matter, whether civil or criminal, in which evidence is or may be given and includes an arbitration; serious offence against the person means— (a) attempted murder; or (b) attempted manslaughter; or (c) a sexual offence; or (d) — (i) an offence of stalking under section 19AA of the Criminal Law Consolidation Act 1935; or (ii) an offence of causing serious harm under section 23 of the Criminal Law Consolidation Act 1935; or (iii) an offence involving an unlawful threat to kill or endanger life; or (iv) an offence involving abduction; or (v) an offence involving blackmail; or (vi) an attempt to commit, or assault with intent to commit, any of the offences in the preceding subparagraphs; sexual offence means— (a) rape; or (ab) compelled sexual manipulation; or (b) indecent assault; or (c) any offence involving unlawful sexual intercourse or an act of gross indecency; or (d) incest; or (da) any offence involving sexual exploitation or abuse of a child, or exploitation of a child as an object of prurient interest; or (db) an offence of sexual exploitation of a person with a cognitive impairment under section 51 of the Criminal Law Consolidation Act 1935; or (e) any attempt to commit, or assault with intent to commit, any of the foregoing offences; spouse—a person is the spouse of another if they are legally married; statement includes a statement however made; sworn evidence means evidence given under the obligation of an oath or an affirmation; and unsworn evidence has a corresponding meaning; electric telegraph means any system of telecommunication operated by the Australian Telecommunication Commission or any other authority approved by proclamation; telegraphic message means any message or other communication transmitted, or intended for transmission, or purporting to have been transmitted, by electric telegraph; telegraph station means a station established or used by the Australian Telecommunication Commission or other authority approved by proclamation for the receipt or transmission of telegraphic messages; vulnerable witness means— (a) a witness who is under 16 years of age; or (b) a witness who is cognitively impaired; or (c) a witness who is the alleged victim of an offence to which the proceedings relate— (i) where the offence is a serious offence against the person; or (ii) in any other case—where, because of the circumstances of the witness or the circumstances of the case, the witness would, in the opinion of the court, be specially disadvantaged if not treated as a vulnerable witness; or (d) a witness who— (i) has been subjected to threats of violence or retribution in connection with the proceedings; or (ii) has reasonable grounds to fear violence or retribution in connection with the proceedings; or (e) in the case of proceedings for a serious and organised crime offence (within the meaning of the Criminal Law Consolidation Act 1935)—a person who will only consent to being a witness in the proceedings if he or she is treated as a vulnerable witness for the purposes of the proceedings; young child means a child of or under the age of 14 years. (2) For the purposes of this Act, a witness who is to give oral evidence in proceedings will be taken to have complex communication needs if the witness's ability to give the evidence is significantly affected by a difficulty to communicate effectively with the court, whether the communication difficulty is temporary or permanent and whether caused by disability, illness, injury or some other cause. (3) However, a witness who is to give oral evidence in proceedings whose native language is not English will not be taken to have complex communication needs merely because the witness is not reasonably fluent in English (although the witness may be entitled to give the evidence through an interpreter under section 14). 5—Application of Act (prima facie) to all courts and enabling only The provisions of this Act, unless an intention to the contrary is expressed, or appears or is implied by the context— (a) apply to every proceeding before any court whatever; and (b) are in addition to, and not in derogation of, any rules of evidence, or power, or right, or duty in relation to procedure or evidence, whether existing at common law, or provided for by any law, at any time, in force in the State. Part 2—Witnesses 6—Oaths, affirmations etc (1) An oath shall be administered and taken as follows: (a) the person taking the oath shall hold a copy of the Bible (being a book that contains the New Testament, the Old Testament or both) in his hand and, after the oath has been tendered to him, shall say "I swear"; or (b) in any other manner and form which the person taking the oath declares to be binding on his conscience; or (c) in any other manner or form authorised or permitted by law. (2) Where an oath has been lawfully administered and taken, the fact that the person taking the oath had no religious belief, or that the oath was not taken so as to be binding on his conscience, shall not affect, at law, the validity or effect of the oath. (3) A person is permitted, and should be offered the choice, to make an affirmation instead of an oath in all circumstances in which, and for all purposes for which, an oath is required or permitted by law. (4) An affirmation is to be administered to a person by asking the person "Do you solemnly and truly affirm" followed by the words of the appropriate oath (omitting any words of imprecation or calling to witness) after which the person must say "I do solemnly and truly affirm". (5) Every affirmation has, at law, the same force and effect as an oath. (6) No oath or affirmation is invalid by reason of a procedural or formal error or deficiency. 7—Oaths or affirmations taken before a court (1) Every court has authority to administer an oath or an affirmation. (2) Where an oath or affirmation is to be taken before a court, or in connection with proceedings before a court, it may be administered by— (a) the court itself; or (b) an officer of the court; or (c) any person authorised by the court to administer the oath or affirmation; or (d) any other person authorised by law to administer the oath or affirmation. 9—Unsworn evidence (1) A person is presumed to be capable of giving sworn evidence in any proceedings unless the judge determines that the person does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence. (2) If the judge determines that a person does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence, the judge may permit the person to give unsworn evidence provided that— (a) the judge— (i) is satisfied that the person understands the difference between the truth and a lie; and (ii) tells the person that it is important to tell the truth; and (b) the person indicates that he or she will tell the truth. (3) In determining a question under this section, the judge is not bound by the rules of evidence, but may inform himself or herself as the judge thinks fit. (4) If unsworn evidence is given under this section in a criminal trial, the judge— (a) must explain to the jury the reason the evidence is unsworn; and (b) may, and if a party so requests must, warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it. (5) A justice to whom it appears that a person who desires to lay a complaint or information does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence may ascertain by inquiry the subject matter of the complaint or information and reduce it into the appropriate form, and any action or proceedings may be taken on the complaint or information in all respects as if the complainant or informant had deposed to the truth of the contents on oath or affirmation. (6) Subject to this Act, this section does not apply to a statement made outside of a court admitted as evidence in any proceedings under an exception to the rule against hearsay at common law or under this Act. 12—Evidence of young children (4) A young child who is called as a witness is, while giving evidence, entitled to have present in the court, and within reasonable proximity, a person of his or her choice to provide emotional support (but the person must not interfere in the proceedings). (5) Unless the court otherwise allows, a witness or prospective witness in the proceedings cannot be chosen under subsection (4) to provide emotional support for a young child. 12A—Warning relating to uncorroborated evidence of child in criminal proceedings (1) In a criminal trial, a judge must not warn the jury that it is unsafe to convict on a child's uncorroborated evidence unless— (a) the warning is warranted because there are, in the circumstances of the particular case, cogent reasons, apart from the fact that the witness is a child, to doubt the reliability of the child's evidence; and (b) a party asks that the warning be given. (2) In giving any such warning, the judge is not to make any suggestion that the evidence of children is inherently less credible or reliable, or requires more careful scrutiny, than the evidence of adults. 12AB—Pre‑trial special hearings (1) Subject to this section, if— (a) the evidence of a witness to whom this section applies is necessary for the purposes of the trial of a charge of an offence to which this section applies; and (b) the facilities necessary to take the evidence of the witness are readily available to the court and it is otherwise practicable to make arrangements for a special hearing to be convened as a proceeding preliminary to the trial (a pre‑trial special hearing); and (c) the arrangements can be made without prejudice to any party to the proceedings, the court should, on application under this section, order that arrangements be made relating to the giving of evidence by the witness at a pre‑trial special hearing. (2) An order for a pre‑trial special hearing— (a) must make provision for each of the following matters: (i) that a hearing be convened as a proceeding preliminary to the trial of the charge of the offence for the purpose of taking the evidence of the witness in any setting that the court thinks fit in the circumstances (including an informal setting); (ii) if the witness has a physical disability or cognitive impairment—that the evidence be taken in a particular way (to be specified by the court) that will, in the court's opinion, facilitate the taking of evidence from the witness or minimise the witness's embarrassment or distress (including, if the witness has complex communication needs, with such communication assistance as may be specified by the court); Note— Communication assistance for a witness may be provided, for example, by a communication partner or by using a device (such as a speak‑and‑spell communication device). (iii) that an audio visual record of the evidence be made; (iv) that the taking of evidence at the hearing be transmitted to the defendant by means of closed circuit television; (v) if the defendant attends the hearing in person—that appropriate measures be taken to prevent the witness and the defendant from directly seeing or hearing each other before, during or after the hearing; and (b) may make provision for the witness to be accompanied at the hearing by a relative, friend or other person, or by a canine court companion, for the purpose of providing emotional support; and (c) may specify that the hearing is convened for any (or all) of the following purposes: (i) examination of the witness; (ii) cross‑examination of the witness; (iii) re‑examination of the witness; and (ca) may specify that the hearing include an initial hearing for the purpose of taking any evidence (if required), hearing submissions and making rulings as to the admissibility of any evidence and a subsequent hearing (or hearings) for the examination, cross‑examination or re‑examination of the witness to whom this section applies (if required) and any other matters; and (d) may make provision for any other matter that the court thinks fit. (3) An order must not be made for, or in, a pre‑trial special hearing if the effect of the order would be— (a) to relieve a witness from the obligation to give sworn or unsworn evidence or to submit to cross‑examination (except where recorded evidence is admitted under section 13BA and permission of the court for further examination, cross‑examination or re‑examination of the witness is not granted); or (c) to prevent the judge or defendant from observing the witness's demeanour in giving evidence (but the observation may be direct or by live transmission of the witness's voice and image); or (d) to prevent the defendant from instructing counsel while the witness is giving evidence. (4) If a witness to whom this section applies is accompanied by a person for the purpose of providing emotional support or communication assistance— (a) the accompanying person must be visible to the judge while the witness is giving evidence; and (b) if the defendant is prevented from seeing the accompanying person directly while the witness is giving evidence—the court must ensure that the defendant is able to observe that person by direct transmission of images of the witness together with that person while the witness is giving evidence; and (c) the audio visual record of the evidence must show the accompanying person throughout the taking of the evidence. (5) A person may only provide communication assistance— (a) if the person— (i) is a communication partner or has been approved by the court to provide such assistance to the witness; and (ii) takes an oath or makes an affirmation that he or she will communicate accurately with both the witness and the court; and (b) in a case where a party to the proceedings disputes the person's ability or impartiality in providing communication assistance—if the judge is satisfied as to the person's ability and impartiality. (6) The fact that a person has provided communication assistance to a witness in a pre‑trial special hearing under this section does not of itself prevent that person also from being called as a witness in the trial of the charge of the offence or in any other relevant proceedings. (6a) If a witness to whom this section applies is accompanied by a canine court companion for the purpose of providing emotional support— (a) the witness may also be accompanied by a person who will act as a handler for the dog and subsection (4) applies to the handler as if they were an accompanying person providing emotional support to the witness; and (b) if practicable, the dog should not be visible in the audio visual record of the evidence. (7) An application for a pre‑trial special hearing must— (a) be made in writing by the party calling the witness to whom this section applies to give evidence; and (b) be filed in the court as a proceeding preliminary to the commencement of the trial; and (c) within 14 days of being filed in the court—be served on the other party to the proceedings (the respondent); and (d) specify why the witness is a witness to whom this section applies and the reasons why the special hearing is sought; and (e) otherwise be made in accordance with the rules of court. (8) The respondent may, if of the opinion that the witness on whose behalf the application has been made is not in fact a witness to whom this section applies, within 14 days of being served with the application (the prescribed period), file an answering document in the court objecting to the application on that ground. (9) If an objection to the application is filed within the prescribed period, the court must determine the application before the commencement of the trial— (a) in the absence of the applicant and respondent; or (b) by conducting a hearing in a room closed to the public. (10) If no objection to the application is filed within the prescribed period, the court must, subject to subsection (1)(b) and (c), make an order for a pre‑trial special hearing pursuant to this section. (11) An order for a pre‑trial special hearing may be varied or revoked on the court's own initiative, or on the application of a party to the proceedings. (11a) If an order has been made for a pre-trial special hearing in relation to a witness in a trial of a charge of a child sexual offence, the court may also (at the time of making that order, at the pre‑trial special hearing or at any other time) give 1 or more of the following directions: (a) a direction about the manner of questioning the witness; (b) a direction about the duration of questioning the witness; (c) a direction about the questions that may or may not be put to the witness; (d) if there is more than 1 accused, a direction about the allocation among the accused of the topics about which the witness may be asked; (e) a direction about the use of models, plans, body maps or similar aids to help communicate a question or an answer; (f) a direction that if a party intends to lead evidence that contradicts or challenges the evidence of the witness or that otherwise discredits the witness, the party is not obliged to put that evidence in its entirety to the witness in cross-examination; (g) any other direction the court thinks necessary for the fair and efficient conduct of the proceeding. (12) Subject to this section, a pre‑trial special hearing will be conducted as the court thinks fit. (13) At a pre‑trial special hearing the court may do any of the following: (a) make orders under section 13BA as to the admission of any recorded evidence of the witness made pursuant to Part 17 Division 3 of the Summary Offences Act 1953; (b) if any such recorded evidence is to be admitted—hear and determine any application for further examination, cross‑examination or re‑examination of the witness made pursuant to section 13BA; (c) if no such recorded evidence exists or is to be admitted or if an application referred to in paragraph (b) is granted—permit examination, cross‑examination or re‑examination of the witness at the pre‑trial special hearing; (d) make orders under section 13BA as to the admission of the audio visual record of any examination, cross‑examination or re‑examination of the witness at the pre‑trial special hearing; (e) make orders (on the court's own initiative, or on the application of a party to the proceedings) as to any other matter that the court thinks fit (including, without limitation, any orders of a kind referred to in section 13A(2)). (13a) The court may only permit examination, cross‑examination or re‑examination of the witness at the pre‑trial special hearing if the court is satisfied as to the witness's capacity to give sworn or unsworn evidence at the time of the pre‑trial special hearing. (14) In this section— trial of a charge of an offence to which this section applies means— (a) the trial of a charge of a serious offence against the person; or (b) the trial of a charge of an offence of contravening or failing to comply with an intervention order under the Intervention Orders (Prevention of Abuse) Act 2009; or (c) the trial of a charge of an offence of contravening or failing to comply with a restraining order under the Summary Procedure Act 1921; witness to whom this section applies means— (a) a young child; or (b) a person with a disability that adversely affects the person's capacity to give a coherent account of the person's experiences or to respond rationally to questions; or (c) in the case of a trial of a charge of a child sexual offence, any of the following witnesses: (i) an alleged victim of the offence (regardless of their age at the time of the trial); (ii) a child; (iii) a vulnerable witness; (iv) any other witness if the court is satisfied that they should be allowed to give evidence in a manner contemplated by this section; or (d) in the case of a trial of an offence involving domestic abuse (within the meaning of the Intervention Orders (Prevention of Abuse) Act 2009)—an alleged victim of the domestic abuse. 12AC—Effect of orders made at pre‑trial special hearing (1) An order made by the court at the pre‑trial special hearing as to the admission of a recording of evidence of a witness (being an order under section 13BA) is taken to have been made for the purposes of the trial and, subject to subsection (2), is binding on the trial court provided that, during the course of the trial, the witness is available, if required, for further examination, cross‑examination or re‑examination. (2) An order referred to in subsection (1) is not, however, binding on the trial court if the trial court is satisfied, on application by a party to proceedings and based only on matters that have arisen or become known after the making of