Victorian Consolidated Legislation

Dangerous Goods Act 1985 - SECT 43

Right of defendant to have third person before court

43. Right of defendant to have third person before court



(1) A defendant charged with an offence against this Act who alleges that the
contravention constituting the offence was due to the act or default of
another person may have that other person brought before the court by which
the charge is to be heard.

(2) A defendant who desires to use the provisions of this section-

   (a)  shall, at least ten days before the return day of the summons in
        question, give to the informant notice in writing of the defendant's
        intention to use the provisions of this section and particulars of the
        defendant's claim that-

   (i)  the contravention was due to the act or default of another person; and

   (ii) the defendant exercised due diligence to ensure compliance with the
        provision of this Act in question; and

   (b)  shall file a charge against the other person for an offence against
        this Act.



(3) A summons to answer to a charge laid pursuant to paragraph (b) of
subsection (2) shall require the person against whom the charge is filed to
appear to answer to the charge at a date and place mentioned in the summons
before the court by which the original charge is to be heard and, where that
date is not the return date of the original summons, the court shall adjourn
the hearing of the original charge to that date or shall adjourn the hearing
of the charges to a later date.

(4) On the hearing of the charges-





   (a)  the original informant or the original informant's legal practitioner
        as well as the other person who the defendant has alleged committed
        the offence-

   (i)  may cross-examine the defendant (if the defendant gives evidence) and
        any witness called by the defendant; and

   (ii) may call evidence in rebuttal; and

   (b)  the court-

   (i)  may convict the other person if the contravention of this Act is
        proved and the original defendant satisfies the court that the
        contravention was due to the act or default of that other person;

   (ii) shall dismiss the charge against the original defendant if, in
        addition to satisfying the court that the contravention was due to the
        act or default of the other person, the original defendant satisfies
        the court that the original defendant exercised due diligence to
        ensure compliance with the provision of this Act in question; and

   (iii) may make such orders as to the costs of the proceedings as it thinks
        fit.

(5) In this section, legal practitioner means an Australian legal practitioner
within the meaning of the Legal Profession Act 2004.