JUSTICES ACT 1886 - SECT 110B
Special provisions applying to a direction under s 83A(5AA)
JUSTICES ACT 1886 - SECT 110B
Special provisions applying to a direction under s 83A(5AA)
110B Special provisions applying to a direction under s 83A(5AA)
(1) A magistrate at a direction hearing must not give a direction under
section 83A(5AA) in relation to the maker of a written statement unless the
magistrate is satisfied there are substantial reasons why, in the interests of
justice, the maker should attend to give oral evidence or be made available
for cross-examination on the written statement.
Note—
Under section 83Aa
magistrate, on the magistrate’s own initiative, may direct the parties to a
proceeding to attend at a direction hearing. Also, under that section, a party
to the proceeding may apply to a court, in the approved form, for a direction
hearing.
(2) An application in relation to the maker of a particular
written statement may be made only once unless a magistrate gives leave for a
subsequent application to be made on the basis of special reasons considered
by the magistrate to exist.
(3) An application for a direction under
section 83A(5AA) may be made only if—
(a) the defendant has, by letter, or
by email or some other electronic form of written communication (the
"defendant’s communication" ), advised the prosecution of the following—
(i) the name of the maker of the written statement the subject of the
application;
(ii) the general issues relevant to the making of the
application;
Examples of general issues—
identification evidence, expert
opinion evidence
(iii) the reasons to be relied on to justify the calling
of the maker of the written statement to give oral evidence;
(iv) a time (the
"nominated time" ) for the prosecution to respond to the defendant’s
communication; and
(b) the prosecution’s response to the defendant’s
communication (the
"prosecution’s response" ) has been received, or it has not been received
within the nominated time; and
(a) the
time set by the court or by a practice direction; or
(b) if there is no time
set by the court or by a practice direction—a time that is reasonable in the
circumstances, but in any event not less than 7 days.
(5) The prosecution’s
response may state whether the prosecution agrees to the calling of the maker
of the statement, and any conditions attaching to the prosecution’s
agreement.
Note—
Section 110A(5) (Use of tendered statements in lieu of
oral testimony in committal proceedings) allows for agreement between the
prosecution and defence about the maker of a written statement being present
for cross-examination.
(6) A magistrate must give reasons for the
magistrate’s decision at a direction hearing about an application for a
direction under section 83A(5AA) .
(7) An application for a direction under
section 83A(5AA) must be filed and served on the other party or parties
before the date set by the court or by practice direction, and in any event,
if the court sets a date for the commencement of the hearing of evidence in
the committal proceeding, not later than that date.
(8) A direction given
under section 83A(5AA) on the application of the defendant may be withdrawn,
on the application of the prosecution, if the defendant or the defendant’s
lawyer does not appear at the hearing.