5BTaking evidence and
submissions from outside courtroom or place where court is
sitting—proceedings generally
(1)
Subject to any applicable rules of court,
subsection (2A) and section 5BAA, a NSW court may, either on its own motion
in, or on the application of a party to, a proceeding before the court, direct
that a person (whether or not a party to the proceeding) give evidence or make
a submission to the court by audio link or audio visual link from any place
within or outside New South Wales, including a place outside Australia, other
than the courtroom or other place at which the court is
sitting.
(2)
The court must not make such a direction
if:
(a)
the necessary facilities are unavailable or
cannot reasonably be made available, or
(b)
the court is satisfied that the evidence or
submission can more conveniently be given or made in the courtroom or other
place at which the court is sitting, or
(c)
the court is satisfied that the direction would
be unfair to the party, or
(d)
the court is satisfied that the person in respect
of whom the direction is sought will not give evidence or make the
submission.
(2A)
A court must not make a direction under this Part
in relation to the giving of evidence or making of a submission by audio
visual link by any accused detainee in any criminal proceeding in relation to
the detainee concerning an offence alleged to have been committed by the
detainee. However, this subsection does not prevent the making of such a
direction in relation to an accused detainee in any other proceeding to which
this Part applies.
Note—
Part 1B of this Act contains provisions with
respect to the appearance of accused detainees who are in custody in criminal
proceedings.
(3)
In a proceeding in which a party opposes the
making of a direction for the giving of evidence or making of a submission to
the court by audio link or audio visual link from any place within New South
Wales other than the courtroom or other place where the court is sitting, the
court must not make the direction unless the party making the application
satisfies the court that it is in the interests of the administration of
justice for the court to do so.
s 5B: Ins 2000 No 16,
Sch 1 [5]. Am 2001 No 46, Sch 1 [8]–[10]; 2003 No 76, Sch 1 [4]; 2004 No
55, Sch 2.12; 2007 No 75, Sch 1 [9]–[11].