Crimes Legislation Amendment (Serious and Organised Crime) Act (No. 2) 2010 (4 of 2010)

Schedule 1   Proceeds of crime

Part 6   Evidence

Proceeds of Crime Act 2002

165   After section 318

Insert:

318A Admissibility in proceedings of statements made at examination by absent witness

Scope

(1) This section applies if direct evidence by a person (the absent witness ) of a matter would be admissible in a proceeding before a court:

(a) on an application for an order under this Act; or

(b) ancillary to such an application; or

(c) for the enforcement of an order made under this Act.

Admissibility of statements made at examination

(2) A statement that the absent witness made at an *examination of the absent witness and that tends to establish the matter is admissible in the proceeding as evidence of the matter:

(a) if it appears to the court that:

(i) the absent witness is dead or is unfit, because of physical or mental incapacity, to attend as a witness; or

(ii) the absent witness is outside the State or Territory in which the proceeding is being heard and it is not reasonably practicable to secure his or her attendance; or

(iii) all reasonable steps have been taken to find the absent witness but he or she cannot be found; or

(b) if it does not so appear to the court - unless another party to the proceeding requires the party tendering evidence of the statement to call the absent witness as a witness in the proceeding and the tendering party does not so call the absent witness.

Rules that apply if statement admitted

(3) The rules in subsections (4) to (6) apply if evidence of a statement is admitted under subsection (2).

(4) In deciding how much weight (if any) to give to the statement as evidence of a matter, regard is to be had to:

(a) how long after the matters to which it related occurred the statement was made; and

(b) any reason the absent witness may have had for concealing or misrepresenting a material matter; and

(c) any other circumstances from which it is reasonable to draw an inference about how accurate the statement is.

(5) If the absent witness is not called as a witness in the proceeding:

(a) evidence that would, if the absent witness had been so called, have been admissible in the proceeding for the purpose of destroying or supporting his or her credibility is so admissible; and

(b) evidence is admissible to show that the statement is inconsistent with another statement that the absent witness has made at any time.

(6) However, evidence of a matter is not admissible under this section if, had the absent witness been called as a witness in the proceeding and denied the matter in cross-examination, evidence of the matter would not have been admissible if adduced by the cross-examining party.

318B Objection to admission of statements made at examination

Adducing party to give notice

(1) A party (the adducing party ) to a proceeding referred to in subsection 318A(1) may, not less than 14 days before the first day of the hearing of the proceeding, give another party to the proceeding written notice that the adducing party:

(a) will apply to have admitted in evidence in the proceeding specified statements made at an *examination; and

(b) for that purpose, will apply to have evidence of those statements admitted in the proceeding.

(2) The notice must set out, or be accompanied by a written record of, the specified statements.

Other party may object to admission of specified statements

(3) The other party may, within 14 days after a notice is given under subsection (1), give the adducing party a written notice (an objection notice ):

(a) stating that the other party objects to specified statements being admitted in evidence in the proceeding; and

(b) specifying, in relation to each of those statements, the grounds of objection.

(4) The period referred to in subsection (3) may be extended by the court before which the proceeding is to be heard or by agreement between the parties concerned.

Effect of giving objection notice

(5) On receiving an objection notice, the adducing party must give to the court a copy of:

(a) the notice under subsection (1) and any record under subsection (2); and

(b) the objection notice.

(6) If subsection (5) is complied with, the court may either:

(a) determine the objections as a preliminary point before the hearing of the proceeding begins; or

(b) defer determination of the objections until the hearing.

Effect of not giving objection notice

(7) If a notice has been given in accordance with subsections (1) and (2), the other party is not entitled to object at the hearing of the proceeding to a statement specified in the notice being admitted in evidence in the proceeding, unless:

(a) the other party has, in accordance with subsection (3), objected to the statement being so admitted; or

(b) the court gives the other party leave to object to the statement being so admitted.