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.]