Australian Capital Territory Consolidated Acts Australian Capital Territory Consolidated Acts(1) In this section:
"trial" means—
(a) a proceeding before the Supreme Court in relation to an indictable offence; or
(b) a proceeding under the Magistrates Court Act 1930 in relation to an indictable offence.
(2) If a magistrate is satisfied that—
(a) a person is or may be able to give evidence relating to an indictable offence or on behalf of a person charged with such an offence; and
(b) that the firstmentioned person is dangerously ill and is not likely to recover from the illness; and
(c) because of that illness, the firstmentioned person is or may be unable to give evidence at the trial of a person who has been, or may be, charged with an indictable offence;
the magistrate may take the evidence of the firstmentioned person in the ACT or elsewhere in Australia.
(3) Before taking the evidence of a person under this section, the magistrate shall—
(a) if a person has been charged with the commission of an indictable offence to which the evidence relates; or
(b) if it appears to the magistrate that a person may be charged with an indictable offence to which the evidence relates;
give a notice to the person charged or who may be charged, and, if the evidence is evidence on behalf of the person charged and it is practicable to do so, also give notice to the director of public prosecutions, or a person authorised by the director of public prosecutions, of the fact that the magistrate proposes to take the evidence of the firstmentioned person under this section and of the time and place where the magistrate proposes to take that evidence.
(4) Any person to whom a notice is given under subsection (3) (including the director of public prosecutions or a person authorised by the director of public prosecutions) may—
(a) be present while the relevant evidence is being taken; and
(b) cross-examine the person giving the evidence.
(5) The magistrate before whom the evidence is taken—
(a) shall cause the evidence (including evidence given under cross-examination) to be recorded; and
(b) shall, if the person whose evidence is taken is able to write, cause that person to sign the evidence; and
(c) shall endorse on or annex to that evidence a statement setting out the reasons for taking the evidence, the date and time and the place where it was taken and of the names of the persons present at the taking of the evidence.
(6) If, on the trial of a person charged with an offence to which the evidence contained in the record made under this section relates, the court is satisfied—
(a) that the person by whom the evidence was given is dead, or is, because of illness, unable to attend the trial; and
(b) that—
(i) the person charged, or his or her lawyer, was present when the evidence was taken; or
(ii) reasonable notice of the time and place fixed for the taking of the evidence was given to the person charged or to his or her lawyer;
the record of the evidence is admissible, to the extent that the evidence would have been admissible at the trial if given orally.
(7) The record of the evidence taken under this section shall, if a person is charged with an indictable offence to which the evidence relates, be deemed to form part of the depositions taken on the proceedings against that person for that offence in the Magistrates Court.