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EVIDENCE ACT 1906 - SECT 110

EVIDENCE ACT 1906 - SECT 110

110 .         Superior courts may make orders for obtaining evidence

        (1)         In any civil or criminal proceedings before a superior court, the court may, in its discretion and where it appears in the interests of justice to do so, on the application of a party to the proceeding, make, in relation to a person outside the State, an order —

            (a)         for the examination of the person on oath or affirmation at any place outside the State before a judge of the court, an officer of the court or such other person as the court may appoint; or

            (b)         for the issue of a commission for the examination of the person on oath or affirmation at any place outside the State; or

            (c)         for the issue of a request to the judicial authorities of a place outside the State to take, or to cause to be taken, the evidence of the person.

        (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 shall have regard include the following —

            (a)         whether the person is willing or able to come to Western Australia to give evidence in the proceeding;

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

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

        (3)         Where a court makes an order under subsection (1) of the kind referred to in subsection (1)(a) or (b), the court may, in its discretion, at the time of the making of the order or at a subsequent time, 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 court thinks relevant.

        (4)         Where a court makes, in relation to a proceeding, an order under subsection (1) of the kind referred to in subsection (1)(c) in relation to the taking of evidence of a person, the court may, in its discretion, include in the order a request as to any matter relating to the taking of that evidence, including any of the following matters —

            (a)         the examination, cross-examination or re-examination of the person, whether the evidence of the person is given orally, upon affidavit or otherwise;

            (b)         the attendance of the legal representative of each party to the proceeding and the participation of those persons in the examination in appropriate circumstances;

            (c)         any prescribed matter.

        (5)         Subject to subsection (6), the 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 an examination held as a result of an order made under subsection (1) or a record of that evidence.

        (6)         Evidence of a person so tendered is not admissible if —

            (a)         it appears to the satisfaction of the court at the hearing of the proceeding that the person is in Western Australia and 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.

        (7)         Where it is in the interests of justice to do so, the 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), notwithstanding that it is otherwise admissible.

        (8)         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.

        [Section 110 inserted: No. 66 of 1987 s. 9; amended: No. 20 of 2013 s. 72.]