Video recorded evidence

If a jury asks to be reminded of the evidence of an affected child that was pre‑recorded under subdiv 3 of Div 4A of the Evidence Act and played to the jury as the evidence of that child, that request should ordinarily be met by replaying the evidence in court in the presence of the trial judge, counsel, and the accused. Depending upon the particular circumstances of the case, it may be necessary to warn the jury of the need to consider the replayed evidence in the light of countervailing evidence or considerations relied upon by the accused.

With technological advancements over recent decades, it has become extremely useful to video record evidence, and later have this video played to the jury.

This evidence usually falls into one of two categories.

The first category is vulnerable witnesses (particularly children), in respect of whom a police interview is often played at that witness' evidence in chief. 

The second category is persons whose evidence (including cross examination) is played in full to the jury. In some cases, children's evidence is pre-recorded pursuant to the "Child Sexual Offence Evidence Pilot". In other cases, evidence given in a trial is recorded against the possibility of the trial being reheard, whether due to an abandoned trial, or a successful appeal.

Generally speaking, the authorities warn against marking the recordings as exhibits, and in particular against allowing the jury unsupervised access to the recordings. If the jury wish to view the footage, this should occur in court in the presence of the parties. Moreover, care needs to be taken to ensure that the jury are not given an imbalanced perspective on the evidence. 


Regina v NZ [2005] NSWCCA 278

“We should by now have made clear our view that this Court should not lay down any rule of practice or procedure to be followed in every case where the evidence in chief of a witness has been given by the playing of a videotape. However, we can summarise our views as to the procedure to be followed generally…”