Victorian Consolidated Legislation

Evidence Act 1958 - SECT 4

Order to examine witnesses

4. Order to examine witnesses



(1) The Supreme Court, in its discretion and where it appears in the interests
of justice to do so, on the application of a party to a civil or criminal
proceeding before the Supreme Court or County Court, may make, in relation to
a person in Victoria, an order for the issue of a commission for the
examination of the person on oath or affirmation at any place in Victoria.

(2) In determining whether it is in the interests of justice to make an order
under subsection (1) in relation to the taking of evidence of a person, the
matters to which the court must have regard include the following-

   (a)  whether the person will be able to give evidence material to any issue
        to be tried in the proceeding;

   (b)  whether, having regard to the interests of other parties to the
        proceeding, justice will be better served by granting or refusing the
        order.

(3) If the Supreme Court makes an order under subsection (1) the Supreme
Court, in its discretion, at the time of the making of the order or at a
subsequent time, may give such directions as it thinks just relating to the
procedure to be followed in and in relation to the examination, including
directions as to the time, place and manner of the examination, and to any
other matter that the Supreme Court thinks relevant.

(4) Subject to subsection (5), the Supreme Court or the County Court may, on
such terms, if any, as it thinks fit, permit a party to the proceeding to
tender as evidence in the proceeding the evidence of a person taken in any
examination held as a result of an order made under subsection (1) or a record
of that evidence.

(5) Evidence of a person so tendered is not admissible if-

   (a)  it appears to the satisfaction of the Supreme Court or County Court at
        the hearing of the proceeding that the person is able to attend the
        hearing; or

   (b)  the evidence would not have been admissible had it been given or
        produced at the hearing of the proceeding.

(6) If it is in the interests of justice to do so, the Supreme Court or County
Court may, in its discretion, exclude from the proceeding evidence taken in an
examination held as a result of an order made under subsection (1), whether or
not it is otherwise admissible.

(7) In this section, a reference to evidence taken in an examination includes
a reference to-

   (a)  a document produced at the examination; and

   (b)  answers made, whether in writing, or orally and reduced to writing, to
        any written interrogatories presented at the examination.