EVIDENCE ACT 1929 - SECT 34KA
EVIDENCE ACT 1929 - SECT 34KA
34KA—Admissibility of evidence of out of court statements by unavailable
witnesses
(1) Subject to this
section, in prescribed proceedings, a statement not made in oral evidence in
the proceedings (an "out of court statement ) is admissible as evidence of any
matter stated if—
(a) oral
evidence given in the proceedings by the person who made the out of court
statement would be admissible as evidence of that matter; and
(b) the
person who made the out of court statement (the "relevant person ) is
identified to the court's satisfaction; and
(c)
any 1 of the conditions specified in subsection (2) is satisfied.
(2) The conditions are
as follows:
(a) that
the relevant person is dead;
(b) that
the relevant person is unfit to be a witness because of a bodily or mental
condition;
(c) that
the relevant person is outside of the State and it is not reasonably
practicable to secure his or her attendance;
(d) that
the relevant person cannot be found although such steps as it is reasonably
practicable to take to find him or her have been taken;
(e) that
through fear the relevant person does not give (or does not continue to give)
oral evidence in the proceedings, either at all or in connection with the
subject matter of the out of court statement, and the court gives leave for
the out of court statement to be given in evidence.
(3) For the purposes
of subsection (2)(e) "fear" is to be widely construed and includes, for
example, fear of the death or injury of another person or of financial loss.
(4) Leave may be given
under subsection (2)(e) only if the court considers that the out of court
statement ought to be admitted in the interests of justice, having regard
to—
(a) any
information (whether or not given in evidence, or of a kind that could be
given in evidence) suggesting threats have been made to the witness, whether
directly or indirectly; and
(b) the
statement's contents; and
(c) any
risk that its admission or exclusion will result in unfairness to a defendant
in the proceedings (and in particular to how difficult it will be to challenge
the statement if the relevant person does not give oral evidence and the
defendant is not able to cross-examine the person); and
(d) any
other measures that could be taken by the court in relation to the relevant
person; and
(e) any
other relevant circumstances.
(5) A condition set
out in any paragraph of subsection (2) which is in fact satisfied is to
be treated as not satisfied if it is shown that the circumstances described in
that paragraph are caused—
(a) by
the person in support of whose case it is sought to give the out of court
statement in evidence; or
(b) by a
person acting on his or her behalf, in order to prevent the relevant person
giving oral evidence in the proceedings (whether at all or in connection with
the subject matter of the out of court statement).
(6) Nothing in this
section makes an out of court statement admissible as evidence if it was made
by a person who was not competent at the time when he or she made the
statement.
(7) This section is in
addition to, and does not derogate from, any other power of a court to admit
an out of court statement into evidence.
(8) In this
section—
"prescribed proceedings" means—
(a)
proceedings for a criminal offence; or
(b)
proceedings under the Serious and Organised Crime (Control) Act 2008 .