46Right of accused to have third person before court

46 Right of accused to have third person before court S. 46(1) amended by No. 68/2009 s. 97(Sch. item 59.4). (1) An accused charged with an offence against this Act who alleges that the contravention or failure to comply constituting the offence was due to the act or default of another person may, upon compliance with subsection (2), have that other person brought before the court by which the charge is to be heard and determined. S. 46(2) amended by No. 68/2009 s. 97(Sch. item 59.5(a)). (2) An accused who desires to avail himself of 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 his intention to avail himself of the provisions of this section and particulars of his claim that— (i) the contravention or failure to comply was due to the act or default of another person; and (ii) he exercised due diligence to ensure compliance with the provisions of this Act in question; and S. 46(2)(b) amended by Nos 57/1989 s. 3(Sch. item 79.9), 68/2009 s. 97(Sch. item 59.5(b)). (b) shall file a charge-sheet charging the other person with an offence against this Act. S. 46(3) amended by Nos 57/1989 s. 3(Sch. item 79.10(a)–(d)) (as amended by No. 34/1990 s. 5(Sch. 4 item 65)), 68/2009 s. 97(Sch. item 59.6). (3) A summons to answer to a charge issued in relation to a charge-sheet filed pursuant to paragraph (b) of subsection (2) shall require the person against whom the charge-sheet is filed to attend 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 determined 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. 46(4) amended by No. 57/1989 s. 3(Sch. item 79.11(a)). (4) On the hearing of the charges— S. 46(4)(a) amended by Nos 35/1996 s. 453(Sch. 1 item 33), 68/2009 s. 97(Sch. item 59.7). (a) the original informant or his legal practitioner as well as the other person who the accused has alleged committed the offence— (i) may cross-examine the accused (if he gives evidence) and any witness called by him; and (ii) may call evidence in rebuttal; and (b) the court— S. 46(4)(b)(i) amended by No. 68/2009 s. 97(Sch. item 59.7). (i) may convict the other person if the contravention of or failure to comply with this Act is proved and the original accused satisfies the court that the contravention or failure to comply was due to the act or default of that other person; S. 46(4)(b)(ii) amended by Nos 57/1989 s. 3(Sch. item 79.11(b)), 68/2009 s. 97(Sch. item 59.7). (ii) shall dismiss the charge against the original accused if, in addition to satisfying the court that the contravention or failure to comply was due to the act or default of the other person, he satisfies the court that he exercised due diligence to ensure compliance with the provisions of this Act in question; and (iii) may make such orders as to the costs of the proceedings as it thinks fit. S. 46(5) amended by Nos 10262 s. 4, 98/1997 s. 17(g)(i)(ii). (5) Where it appears to the Secretary or the registration authority that an offence against this Act has been committed in respect of which some person may be charged and the Secretary or the registration authority is reasonably satisfied that— (a) the offence was due to the act or default of some other person; and (b) the first-mentioned person could successfully defend a prosecution for the offence by availing himself of the provisions of this section— the Secretary or the registration authority may cause proceedings to be instituted against that other person for that offence without proceedings first being instituted against the first-mentioned person. (6) In proceedings taken pursuant to subsection (5) the other person may be charged with the offence with which the first-mentioned person might have been charged and, on proof that the offence was due to the act or default of that other person, he may be convicted of the offence. S. 46A inserted by No. 95/1986 s. 18.