(1) Subject to subsection (2), the whole of the evidence (including cross-examination and re‑examination) of a complainant must be—
(a) given at a special hearing under this Division and recorded as an audiovisual recording; and
S. 370(1)(b) amended by No. 48/2012 s. 24(2).
(b) in the case of a special hearing before the trial, presented to the court in the form of that recording.
S. 370(1A) inserted by No. 48/2012 s. 24(3).
(1A) The court must direct that a special hearing under this Division is to be held—
(a) before the trial; or
(b) during the trial.
Section 337 enables the court to vary its direction on the application of a party or on its own motion.
S. 370(1B) inserted by No. 48/2012 s. 24(3).
(1B) In making a direction under subsection (1A), the court must have regard to—
(a) if the complainant is a child, the age and maturity of the child; and
(b) if the complainant is cognitively impaired, the severity of that impairment; and
(c) any preference expressed by the complainant to give their evidence before the trial or during the trial; and
(d) whether conducting the special hearing during the trial is likely—
(i) to intimidate the complainant when giving his or her evidence; or
(ii) to have an adverse effect on the complainant; and
(e) the need to complete the evidence of the complainant expeditiously; and
S. 370(1B)(f) amended by No. 48/2018 s. 40.
(f) the likelihood that the evidence given by the complainant will include inadmissible evidence that may result in the discharge of the jury; and
(g) any other matter that the court considers relevant.
(2) On the application of the prosecution, the court may direct that subsection (1) is not to apply and that the complainant is to give direct testimony in the proceeding if the court is satisfied that the complainant—
(a) is aware of the right of the complainant to have his or her evidence taken at a special hearing under this Division and audiovisually recorded; and
(b) is able and wishes to give direct testimony in the proceeding.
Division 4 provides that the court may make alternative arrangements for the giving of direct testimony.
New s. 371 inserted by No. 68/2009 s. 50.