123Right of defendant to have third person before court

123 Right of defendant to have third person before court (1) If a defendant charged with an offence under this Act or the Regulations alleges that the act or omission constituting the offence was due to the act or default of another person, the defendant may, on complying with this section, have that other person brought before the court which will hear and determine the charge. (2) The defendant must: (a) at least 7 days before the return date of the summons served on the defendant, give the informant and the court written notice of his or her intention to bring the other person before the court;

Food Act 2004 70 (b) include in the notice under paragraph (a) particulars of his or her claim that the contravention was due to the act or default of the other person and that the defendant exercised due diligence to ensure compliance with the provisions of this Act or the Regulations against which the alleged offence was committed; and (c) lay an information against the other person for the offence he or she is charged with or another offence against this Act or the Regulations. (3) If the defendant complies with subsection (2), the court must issue a summons directed to the other person requiring the other person to appear before the court on the date and at the time and place specified in the summons and, if that date is not the return date for the original summons, must adjourn the hearing of the original charge to that date or the hearing of both charges to a later date and notify the parties accordingly. (4) On hearing the charges, the original informant or his or her legal practitioner as well as the other person who the defendant alleges committed the offence may: (a) if the defendant gives evidence – cross-examine the defendant; (b) cross-examine the witnesses called by the defendant (if any); and (c) call evidence in rebuttal. (5) The court: (a) may convict the other person if the commission of the offence is proved and the original defendant satisfies the court that the elements of the offence were constituted by the acts or omissions of the other person; and (b) must dismiss the charge against the original defendant if the original defendant satisfies the court that he or she exercised due diligence to ensure compliance with the relevant provision of the Act or the Regulations. (6) This section does not operate to prevent a court ordering that proceedings against the other person are to be heard separately if the court considers it just to do so.

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