43Right of accused to have third person before court

43 Right of accused to have third person before court S. 43(1) amended by No. 68/2009 s. 97(Sch. item 44.15). (1) An accused 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. S. 43(2) amended by No. 68/2009 s. 97(Sch. item 44.16(a)). (2) An accused who desires to use the provisions of this section— S. 43(2)(a) amended by No. 68/2009 s. 97(Sch. item 44.16 (b)(c)). (a) shall, at least ten days before the return day of the summons in question, give to the informant notice in writing of the intention of the accused to use the provisions of this section and particulars of the claim of the accused that— (i) the contravention was due to the act or default of another person; and S. 43(2)(a)(ii) amended by No. 68/2009 s. 97(Sch. item 44.16(d)). (ii) the accused exercised due diligence to ensure compliance with the provision of this Act in question; and S. 43(2)(b) amended by Nos 57/1989 s. 3(Sch. item 51.1), 68/2009 s. 97(Sch. item 44.16(e)). (b) shall file a charge-sheet against the other person for an offence against this Act. S. 43(3) amended by Nos 57/1989 s. 3(Sch. item 51.2(a)–(d)), 68/2009 s. 97(Sch. item 44.17). (3) A summons to answer to a charge contained on a charge-sheet filed pursuant to paragraph (b) of subsection (2) shall require the person against whom the charge-sheet 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. S. 43(4) amended by No. 57/1989 s. 3(Sch. item 51.3(a)). (4) On the hearing of the charges— S. 43(4)(a) amended by Nos 35/1996 s. 453(Sch. 1 item 22), 68/2009 s. 97(Sch. item 44.18). (a) the original informant or the original informant's legal practitioner as well as the other person who the accused has alleged committed the offence— S. 43(4)(a)(i) amended by No. 68/2009 s. 97(Sch. item 44.18). (i) may cross-examine the accused (if the accused gives evidence) and any witness called by the accused; and (ii) may call evidence in rebuttal; and (b) the court— S. 43(4)(b)(i) amended by No. 68/2009 s. 97(Sch. item 44.18). (i) may convict the other person if the contravention of this Act is proved and the original accused satisfies the court that the contravention was due to the act or default of that other person; S. 43(4)(b)(ii) amended by Nos 57/1989 s. 3(Sch. item 51.3(b)), 68/2009 s. 97(Sch. item 44.18). (ii) shall dismiss the charge against the original accused if, in addition to satisfying the court that the contravention was due to the act or default of the other person, the original accused satisfies the court that the original accused 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. S. 43(5) inserted by No. 18/2005 s. 18(Sch. 1 item 32), amended by No. 17/2014 s. 160(Sch. 2 item 32). (5) In this section, ***legal practitioner*** means an Australian legal practitioner.