Proceeds of Crime Act 2002

CHAPTER 5 - MISCELLANEOUS  

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

Scope

318A(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

318A(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

318A(3)    
The rules in subsections (4) to (6) apply if evidence of a statement is admitted under subsection (2).

318A(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 circumstance from which it is reasonable to draw an inference about how accurate the statement is.

318A(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.

318A(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.