Division 5Division 5 Depositions and written statements
111 Depositions by persons dangerously ill
(1) If it appears to a justice that:(a) a person who is able to give material information about an indictable offence is dangerously ill, and(b) the person’s evidence will probably be lost if not immediately taken,the justice may take the deposition of the person in connection with the offence in the same way as if a prosecution for the offence were then pending before the court.(2) The deposition must be in the form prescribed by the regulations and must be signed by the justice.(3) As soon as practicable after the deposition is taken, a copy of the deposition must be delivered to the Attorney General, to the Director of Public Prosecutions and to each person whom the deposition tends to incriminate.(4) If practicable, each person whom the deposition tends to incriminate is entitled, before being committed or placed on trial, to be given full opportunity to cross-examine the deponent.(5) If in proceedings against an accused person:(a) for the offence to which the deposition relates, or(b) for the murder or manslaughter of the deponent, in the case of his or her death or alleged death by reason of the offence,it is proved to the satisfaction of the court that the deponent is dead, or so ill as not to be able to travel or to give evidence without a risk of endangering the deponent’s life, the deposition may be admitted as evidence for or against the accused person, whether or not it was taken in the presence or hearing of the prosecuting authority or the accused person.
112 Depositions tendered by prosecution
(1) A deposition may be admitted as evidence for the prosecution at the trial of an accused person on proof on oath of each of the following matters:(a) that the deponent:(i) is dead, or so ill as not to be able to travel or to give evidence without a risk of endangering the deponent’s life, or(ii) is absent from Australia,(b) that the deposition was recorded:(i) by or in the presence of the justice before whom it was taken, and(ii) in the presence of the accused person or during any period when the accused person (having been excused under section 41 (1B) of the Justices Act 1902) was absent,(c) that the accused person, or his or her counsel, had full opportunity to cross-examine the witness, or that the accused person (having been excused under section 41 (1B) of the Justices Act 1902) was absent when the deposition was taken and was not represented by counsel.(2) The deposition:(a) must be in writing, signed by the justice by or before whom the deposition was taken, or(b) must be in the form of a written transcript of matter recorded by means, other than writing, authorised by law for the recording of depositions.(3) If the deposition is in the form of a written transcript referred to in subsection (2) (b), it must be proved on oath:(a) that the record so made is a true record of the matter so deposed, and(b) that the transcript of the record is a correct transcript of that record.(4) If it appears from the deposition:(a) that it was made in the presence of the accused person, and(b) that the accused person, or his or her counsel, had full opportunity to cross-examine the witness,the deposition is taken to have been so made and the accused person, or his or her counsel, is taken to have had such an opportunity, unless proved to the contrary.(5) If it appears from the deposition:(a) that it was made while the accused person (having been excused under section 41 (1B) of the Justices Act 1902) was absent, and(b) that the accused person was not represented by counsel at that time,the deposition is taken to have been so made and the accused person is taken to have not been represented by counsel, unless proved to the contrary.(6) In this section, justice includes a coroner holding office under the Coroners Act 1980.
113 Depositions tendered by accused person
(1) The deposition of any witness called and examined before a justice by and on behalf of the accused person may, if the accused person so requires, be admitted as evidence in his or her defence at the trial:(a) if the witness:(i) is dead, or so ill as not to be able to travel or to give evidence without a risk of endangering the witness’s life, or(ii) is absent from Australia, or(b) if the committing justice has certified, before committing the accused person for trial, that in the opinion of the justice:(i) the evidence of the witness is material, and(ii) the witness is willing to attend the trial, but is unable to bear the expense of attendance.(2) A deposition may not be admitted as evidence on the ground referred to in subsection (1) (b) if the witness has, in due time before the trial, been subpoenaed by the Crown.(3) In this section, justice includes a coroner holding office under the Coroners Act 1980.
114 Evidentiary effect of certain transcripts
(1) If a deposition referred to in section 112 or 113 is in the form of a written transcript of matter recorded by means, other than writing, authorised by law for the recording of depositions:(a) the record so made is taken to be a true record of the matter so deposed, and(b) the transcript of the record is taken to be a correct transcript of that record,unless proved to the contrary.(2) Subsection (1) applies only to:(a) a transcript made in the form of shorthand notes, being a transcript identified by, and signed in the handwriting of, the person purporting to have made those notes, or(b) a transcript made by other means (other than writing) authorised by law for the recording of depositions, being a transcript certified in the manner prescribed by the regulations made under the Justices Act 1902.
115 Depositions taken during pre-trial investigations
A deposition taken on the preliminary or other investigation of an indictable offence:(a) may be admitted as evidence on the trial of the accused person for any other offence, whether of the same or of a different kind, if it would be admissible on his or her trial for the offence in respect of which it was taken, and(b) may be proved in the same manner as if the accused person were on trial for that offence.
116 Written statements admitted in committal proceedings
(1) This section applies to:(a) a written statement the whole or any part of which has been admitted as evidence under section 48A of the Justices Act 1902, including any part of the statement that has been rejected under section 48F of that Act,(b) a written statement the whole or any part of which has been tendered as evidence under section 51A of the Justices Act 1902,referred to in this section as a prescribed written statement.(2) Except in so far as the court otherwise orders, a prescribed written statement may be admitted as evidence for the prosecution at the trial of the accused person on proof on oath that the person who made the statement:(a) is dead, or so ill as not to be able to travel or to give evidence without a risk of endangering the person’s life, or(b) is absent from Australia.(3) If the accused person so requires, a prescribed written statement may be admitted as evidence in the accused person’s defence at the trial of the accused person whenever:(a) the person who made the statement:(i) is dead, or so ill as not to be able to travel or to give evidence without a risk of endangering the person’s life, or(ii) is absent from Australia, or(b) the committing justice has certified, before committing the person for trial, that in the opinion of the justice:(i) the evidence of the person who made the statement is material, and(ii) the person is willing to attend the trial, but is unable to bear the expense of attendance.(4) A statement may not be admitted as evidence on the ground referred to in subsection (3) (b) if the person who made the statement has, in due time before the trial, been subpoenaed by the Crown.(5) A prescribed written statement made in respect of an indictable offence may be admitted as evidence on the trial of the accused person for any other offence, whether of the same or of a different kind, if it would be admissible on his or her trial for the offence in respect of which it was made.(6) If at a trial it appears to the court that the whole or any part of a prescribed written statement is inadmissible, the court may reject the statement or that part, as the case may be, as evidence.