30.Section 4 amends section 271D by inserting new subsections (3A) to (3C). These new subsections apply where the court is reviewing the arrangements for taking the evidence of a vulnerable witness, except in cases where inserted section 271BZA applies (see paragraph 19 above).
31.The new subsections place restrictions on the court’s power to vary an earlier order if the earlier order has the effect of enabling all of the vulnerable witness’s evidence to be given in advance of the hearing. Inserted subsection (3C) explains that an order enables all of the witness’s evidence to be given in advance of the hearing if it authorises the taking of evidence by commissioner or the use of a prior statement for the purpose of taking all of the evidence and the order does not authorise the giving of any of the evidence without a special measure or with a special measure which is capable of being used only if the witness gives evidence at the hearing.
32.However, there is an exception if the hearing has already commenced when the court commences its review. In that case, there may, for example, be a need to recall a witness and the court may vary an earlier order to allow for that. There is an exception if the witness has expressed a wish to give evidence at the hearing and the court is satisfied that it is appropriate. There is also an exception if there would otherwise be a significant risk of prejudice to the fairness of the hearing or the interests of justice and that significantly outweighs the risk of prejudice to the witness’s interests if the order is varied.