JUSTICES ACT 1886 - SECT 110A
Use of tendered statements in lieu of oral testimony in committal proceedings
JUSTICES ACT 1886 - SECT 110A
Use of tendered statements in lieu of oral testimony in committal proceedings
110A Use of tendered statements in lieu of oral testimony in committal
proceedings
(1) This section applies if justices are conducting a proceeding with a view
to determining whether a defendant should be committed for trial or sentence
for an indictable offence.
Note—
The provisions about the sexual assault
counselling privilege in the Evidence Act 1977, part 2 , division 2A apply in
relation to committal proceedings.
(2) If a written statement of a witness
is tendered to them by the defence, the justices may, subject to the
provisions of this section being satisfied, admit the statement as evidence
without the witness appearing before them to give evidence or make a
statement.
(3) If a written statement of a witness is tendered to them by the
prosecution, the justices—
(a) must, subject to the provisions of this
section being satisfied, admit the statement as evidence; and
(b) must not
require the witness to appear before them to give evidence or make a statement
unless the witness is required to be called by the prosecution because a
direction has been issued under section 83A(5AA) .
(4) However, if the
defendant is not represented by a lawyer, subsection (3) does not apply unless
the justices are satisfied that all of the following are true—
(c) the defendant has
been made aware that the defendant has a right to apply for a direction under
section 83A(5AA) that the witness attend the proceeding to give oral
evidence;
(d) the defendant has been given an explanation of the requirements
that apply under this division for making an application as mentioned in
paragraph (c) .
(5) Subsection (3) (b) does not stop the prosecution and the
defence agreeing that the witness will be present to be cross-examined.
Note—
It is open to the director of public prosecutions to issue guidelines
for the giving of agreement under subsection (5) . (See the
Director of Public Prosecutions Act 1984, section 11 (Powers of director).)
(6) If a witness is cross-examined because of an agreement under subsection
(5) or because of a direction given under section 83A(5AA) , the justices
must consider both the witness’s written statement and the oral evidence
given by the witness.
(6A) If a written statement is admitted as evidence
under subsection (2) or (3) , the statement—
(a) is taken to be evidence
given or a statement made under section 104upon an examination of witnesses
in relation to an indictable offence; and
(b) is admissible as evidence to
the same extent as it would be if the contents of the statement had been given
by the oral evidence of the person who made the written statement.
(6B) A
written statement tendered by the defence must not be admitted unless—
(a)
the prosecution agrees to its admission; and
(b) no other party to the
proceeding objects, before the written statement is admitted in evidence, to
the statement being admitted under this section.
(6C) A written statement
tendered by the defence or the prosecution must not be admitted unless—
(a)
a copy of it has been made available, by or on behalf of the party proposing
to tender it, to the other party or parties; and
(b) when the copy was made
available, the party proposing to tender it advised that the copy was being
made available with the intention that the written statement be admitted under
this section; and
(c) it is signed by the person making it and contains a
declaration by the person under the Oaths Act 1867, or a written
acknowledgement by the person, to the effect that—
(i) the statement is true
to the best of the person’s knowledge and belief; and
(ii) the person made
the statement knowing that the person may be liable to prosecution for stating
in it anything that the person knew was false.
(6D) Subsections (6E) and (6F)
apply if—
(a) all the evidence before the justices, whether for the
prosecution or the defence, without reference to other evidence by way of
exhibits, comprises written statements admitted in accordance with this
section; and
(b) the lawyer for the defendant consents to the defendant being
committed for trial, or consents to the defendant being committed for
sentence, without consideration of the contents of the written statements.
(6E) The justices must, without deciding under section 104(2) whether the
evidence is sufficient to put the defendant upon trial for an indictable
offence, but subject otherwise to section 104with necessary changes—
(b) order the defendant to be committed
for trial or for sentence.
(6F) Subsection (6E) may be applied to commit the
defendant for trial or sentence even if, before the lawyer for the defendant
consented under subsection (6D) (b) , 1 or more unsuccessful applications were
made to the court for a direction under section 83A(5AA) to require a person
to attend a proceeding to give oral evidence.
Note—
Subsection (6E) could
not be applied if any application of the type mentioned in this subsection
were successful because in that case, the requirement stated in subsection
(6D) (a) would not be satisfied.
(7) Where some of the evidence before
justices consists of written statements admitted in accordance with this
section and some of the evidence is evidence given orally by witnesses upon
their examination under this part, the justices shall, when all the evidence
to be offered on the part of the prosecution is before them, consider such
evidence and determine whether it is sufficient to put the defendant upon
trial for an indictable offence, whereupon the provisions of this part shall
apply as in the case of an examination of witnesses where there are no written
statements admitted pursuant to this section.
(8) A written statement
tendered by the defence may be admitted as evidence by justices pursuant to
this section subject to agreement between the prosecution and the defence that
the person making the statement shall be present when the written statement is
tendered to be cross-examined by the other party or parties, as the case
requires, and in any such case the justices shall consider both the written
and the oral evidence in respect of that person.
(9) Notwithstanding that a
written statement made by any witness is admissible by virtue of this section
as part of the defence case, whether it has been admitted in the proceedings
before justices or not, the justices may require that witness to attend before
them and to give evidence, and in respect of those proceedings the justices
shall consider all the evidence, oral and written (and exhibits (if any)),
whether the defendant’s lawyer has consented to a committal for trial or
sentence or not, and determine whether such evidence is sufficient to put the
defendant upon trial for an indictable offence, whereupon the provisions of
this part shall apply as in the case of an examination of witnesses where
there are no written statements admitted pursuant to this section.
(10) Where
all the evidence before justices consists of written statements admitted in
accordance with this section and counsel or the solicitor for the defendant
does not consent to the defendant being committed for trial or for sentence,
or the defendant is not legally represented, the justices, after hearing any
submissions the prosecution and the defence desire to make, shall determine
whether the evidence is sufficient to put the defendant upon trial for an
indictable offence, whereupon the provisions of this part shall apply as in
the case of an examination of witnesses where there are no written statements
admitted pursuant to this section.
(11) A written statement admitted in
accordance with this section shall, on being so admitted by the justices, be
signed by the justices.
(12) A written statement admitted in accordance with
this section shall have effect as if it is the deposition of the witness whose
statement it is, and it may be used at the trial of the defendant in the same
manner, to the same extent and for the same purpose as a deposition may be
used.
(13) A written statement admitted in accordance with this section may,
when the defendant has been committed by justices to be tried for an
indictable offence, without further proof be read as evidence on the trial of
the defendant, whether for the offence for which the defendant has been
committed for trial or for any other offence for which an indictment shall be
presented, arising out of the same transaction or set of circumstances as the
offence for which the defendant has been committed for trial, and whether or
not combined with other circumstances, if—
(a) the written statement
purports to be signed in the manner prescribed by the person making it and by
the justices before whom it purports to have been tendered as evidence; and
(b) the condition mentioned in section 111(3) (a) , read with the words
‘written statement’ substituted for the word ‘deposition’ where twice
occurring, is satisfied.
(13A) The provisions of the
Criminal Law Amendment Act 1892, section 4apply for the purposes of
subsection (13) as though the reference to ‘depositions’ or
‘deposition’ is a reference to ‘written statements’ or ‘written
statement’ referred to in this section.
(14) If a written statement
admitted in accordance with this section refers to any other document as an
exhibit, the copy given to any other party to the proceedings under subsection
(6C) shall be accompanied by a copy of that document or by such information as
may be necessary in order to enable the party to whom it is given to inspect
that document or a copy thereof.
(15) Any document or object referred to as
an exhibit and identified in a written statement admitted in accordance with
this section shall be treated as if it had been produced as an exhibit and
identified during the proceedings by the maker of the statement.
(16) For a
law about taking certain children’s evidence for committal proceedings for
certain offences, see the Evidence Act 1977, part 2 , division 4A ,
subdivision 2 .