sec.110AUse of tendered statements in lieu of oral testimony in committal proceedings

### sec.110A Use of tendered statements in lieu of oral testimony in committal proceedings This section applies if justices are conducting a proceeding with a view to determining whether a defendant should be committed for trial or sentence for an indictable offence. The provisions about the sexual assault counselling privilege in the Evidence Act 1977 , part 2 , division 2A apply in relation to committal proceedings. If a written statement of a witness is tendered to them by the defence, the justices may, subject to the provisions of this section being satisfied, admit the statement as evidence without the witness appearing before them to give evidence or make a statement. If a written statement of a witness is tendered to them by the prosecution, the justices— must, subject to the provisions of this section being satisfied, admit the statement as evidence; and must not require the witness to appear before them to give evidence or make a statement unless the witness is required to be called by the prosecution because a direction has been issued under section 83A (5AA) . However, if the defendant is not represented by a lawyer, subsection (3) does not apply unless the justices are satisfied that all of the following are true— the defendant understands what the proceeding is about and the possible consequences for the defendant arising out of the proceeding; the defendant is aware that the defendant— is entitled to be legally represented; and may apply for legal assistance; the defendant has been made aware that the defendant has a right to apply for a direction under section 83A (5AA) that the witness attend the proceeding to give oral evidence; the defendant has been given an explanation of the requirements that apply under this division for making an application as mentioned in paragraph (c) . Subsection (3) (b) does not stop the prosecution and the defence agreeing that the witness will be present to be cross-examined. It is open to the director of public prosecutions to issue guidelines for the giving of agreement under subsection (5) . (See the Director of Public Prosecutions Act 1984 , section 11 (Powers of director).) If a witness is cross-examined because of an agreement under subsection (5) or because of a direction given under section 83A (5AA) , the justices must consider both the witness’s written statement and the oral evidence given by the witness. If a written statement is admitted as evidence under subsection (2) or (3) , the statement— is taken to be evidence given or a statement made under section 104 upon an examination of witnesses in relation to an indictable offence; and is admissible as evidence to the same extent as it would be if the contents of the statement had been given by the oral evidence of the person who made the written statement. A written statement tendered by the defence must not be admitted unless— the prosecution agrees to its admission; and no other party to the proceeding objects, before the written statement is admitted in evidence, to the statement being admitted under this section. A written statement tendered by the defence or the prosecution must not be admitted unless— a copy of it has been made available, by or on behalf of the party proposing to tender it, to the other party or parties; and when the copy was made available, the party proposing to tender it advised that the copy was being made available with the intention that the written statement be admitted under this section; and it is signed by the person making it and contains a declaration by the person under the Oaths Act 1867 , or a written acknowledgement by the person, to the effect that— the statement is true to the best of the person’s knowledge and belief; and the person made the statement knowing that the person may be liable to prosecution for stating in it anything that the person knew was false. Subsections (6E) and (6F) apply if— all the evidence before the justices, whether for the prosecution or the defence, without reference to other evidence by way of exhibits, comprises written statements admitted in accordance with this section; and the lawyer for the defendant consents to the defendant being committed for trial, or consents to the defendant being committed for sentence, without consideration of the contents of the written statements. The justices must, without deciding under section 104 (2) whether the evidence is sufficient to put the defendant upon trial for an indictable offence, but subject otherwise to section 104 with necessary changes— formally charge the defendant; and order the defendant to be committed for trial or for sentence. Subsection (6E) may be applied to commit the defendant for trial or sentence even if, before the lawyer for the defendant consented under subsection (6D) (b) , 1 or more unsuccessful applications were made to the court for a direction under section 83A (5AA) to require a person to attend a proceeding to give oral evidence. Subsection (6E) could not be applied if any application of the type mentioned in this subsection were successful because in that case, the requirement stated in subsection (6D) (a) would not be satisfied. Where some of the evidence before justices consists of written statements admitted in accordance with this section and some of the evidence is evidence given orally by witnesses upon their examination under this part, the justices shall, when all the evidence to be offered on the part of the prosecution is before them, consider such evidence and determine whether it is sufficient to put the defendant upon trial for an indictable offence, whereupon the provisions of this part shall apply as in the case of an examination of witnesses where there are no written statements admitted pursuant to this section. A written statement tendered by the defence may be admitted as evidence by justices pursuant to this section subject to agreement between the prosecution and the defence that the person making the statement shall be present when the written statement is tendered to be cross-examined by the other party or parties, as the case requires, and in any such case the justices shall consider both the written and the oral evidence in respect of that person. Notwithstanding that a written statement made by any witness is admissible by virtue of this section as part of the defence case, whether it has been admitted in the proceedings before justices or not, the justices may require that witness to attend before them and to give evidence, and in respect of those proceedings the justices shall consider all the evidence, oral and written (and exhibits (if any)), whether the defendant’s lawyer has consented to a committal for trial or sentence or not, and determine whether such evidence is sufficient to put the defendant upon trial for an indictable offence, whereupon the provisions of this part shall apply as in the case of an examination of witnesses where there are no written statements admitted pursuant to this section. Where all the evidence before justices consists of written statements admitted in accordance with this section and counsel or the solicitor for the defendant does not consent to the defendant being committed for trial or for sentence, or the defendant is not legally represented, the justices, after hearing any submissions the prosecution and the defence desire to make, shall determine whether the evidence is sufficient to put the defendant upon trial for an indictable offence, whereupon the provisions of this part shall apply as in the case of an examination of witnesses where there are no written statements admitted pursuant to this section. A written statement admitted in accordance with this section shall, on being so admitted by the justices, be signed by the justices. A written statement admitted in accordance with this section shall have effect as if it is the deposition of the witness whose statement it is, and it may be used at the trial of the defendant in the same manner, to the same extent and for the same purpose as a deposition may be used. A written statement admitted in accordance with this section may, when the defendant has been committed by justices to be tried for an indictable offence, without further proof be read as evidence on the trial of the defendant, whether for the offence for which the defendant has been committed for trial or for any other offence for which an indictment shall be presented, arising out of the same transaction or set of circumstances as the offence for which the defendant has been committed for trial, and whether or not combined with other circumstances, if— the written statement purports to be signed in the manner prescribed by the person making it and by the justices before whom it purports to have been tendered as evidence; and the condition mentioned in section 111 (3) (a) , read with the words ‘written statement’ substituted for the word ‘deposition’ where twice occurring, is satisfied. The provisions of the Criminal Law Amendment Act 1892 , section 4 apply for the purposes of subsection (13) as though the reference to ‘depositions’ or ‘deposition’ is a reference to ‘written statements’ or ‘written statement’ referred to in this section. If a written statement admitted in accordance with this section refers to any other document as an exhibit, the copy given to any other party to the proceedings under subsection (6C) shall be accompanied by a copy of that document or by such information as may be necessary in order to enable the party to whom it is given to inspect that document or a copy thereof. Any document or object referred to as an exhibit and identified in a written statement admitted in accordance with this section shall be treated as if it had been produced as an exhibit and identified during the proceedings by the maker of the statement. For a law about taking certain children’s evidence for committal proceedings for certain offences, see the Evidence Act 1977 , part 2 , division 4A , subdivision 2 . s 110A ins 1974 No. 25 s 6 amd 1977 No. 13 s 7 ; 1997 No. 9 s 41 ; 2003 No. 55 s 73 ; 2004 No. 11 s 596 sch 1 ; 2007 No. 37 s 92 sch ; 2010 No. 26 s 87 ; 2017 No. 8 s 101 sch 1 (sec.110A-ssec.1) This section applies if justices are conducting a proceeding with a view to determining whether a defendant should be committed for trial or sentence for an indictable offence. The provisions about the sexual assault counselling privilege in the Evidence Act 1977 , part 2 , division 2A apply in relation to committal proceedings. (sec.110A-ssec.2) If a written statement of a witness is tendered to them by the defence, the justices may, subject to the provisions of this section being satisfied, admit the statement as evidence without the witness appearing before them to give evidence or make a statement. (sec.110A-ssec.3) If a written statement of a witness is tendered to them by the prosecution, the justices— must, subject to the provisions of this section being satisfied, admit the statement as evidence; and must not require the witness to appear before them to give evidence or make a statement unless the witness is required to be called by the prosecution because a direction has been issued under section 83A (5AA) . (sec.110A-ssec.4) However, if the defendant is not represented by a lawyer, subsection (3) does not apply unless the justices are satisfied that all of the following are true— the defendant understands what the proceeding is about and the possible consequences for the defendant arising out of the proceeding; the defendant is aware that the defendant— is entitled to be legally represented; and may apply for legal assistance; the defendant has been made aware that the defendant has a right to apply for a direction under section 83A (5AA) that the witness attend the proceeding to give oral evidence; the defendant has been given an explanation of the requirements that apply under this division for making an application as mentioned in paragraph (c) . (sec.110A-ssec.5) Subsection (3) (b) does not stop the prosecution and the defence agreeing that the witness will be present to be cross-examined. It is open to the director of public prosecutions to issue guidelines for the giving of agreement under subsection (5) . (See the Director of Public Prosecutions Act 1984 , section 11 (Powers of director).) (sec.110A-ssec.6) If a witness is cross-examined because of an agreement under subsection (5) or because of a direction given under section 83A (5AA) , the justices must consider both the witness’s written statement and the oral evidence given by the witness. (sec.110A-ssec.6A) If a written statement is admitted as evidence under subsection (2) or (3) , the statement— is taken to be evidence given or a statement made under section 104 upon an examination of witnesses in relation to an indictable offence; and is admissible as evidence to the same extent as it would be if the contents of the statement had been given by the oral evidence of the person who made the written statement. (sec.110A-ssec.6B) A written statement tendered by the defence must not be admitted unless— the prosecution agrees to its admission; and no other party to the proceeding objects, before the written statement is admitted in evidence, to the statement being admitted under this section. (sec.110A-ssec.6C) A written statement tendered by the defence or the prosecution must not be admitted unless— a copy of it has been made available, by or on behalf of the party proposing to tender it, to the other party or parties; and when the copy was made available, the party proposing to tender it advised that the copy was being made available with the intention that the written statement be admitted under this section; and it is signed by the person making it and contains a declaration by the person under the Oaths Act 1867 , or a written acknowledgement by the person, to the effect that— the statement is true to the best of the person’s knowledge and belief; and the person made the statement knowing that the person may be liable to prosecution for stating in it anything that the person knew was false. (sec.110A-ssec.6D) Subsections (6E) and (6F) apply if— all the evidence before the justices, whether for the prosecution or the defence, without reference to other evidence by way of exhibits, comprises written statements admitted in accordance with this section; and the lawyer for the defendant consents to the defendant being committed for trial, or consents to the defendant being committed for sentence, without consideration of the contents of the written statements. (sec.110A-ssec.6E) The justices must, without deciding under section 104 (2) whether the evidence is sufficient to put the defendant upon trial for an indictable offence, but subject otherwise to section 104 with necessary changes— formally charge the defendant; and order the defendant to be committed for trial or for sentence. (sec.110A-ssec.6F) Subsection (6E) may be applied to commit the defendant for trial or sentence even if, before the lawyer for the defendant consented under subsection (6D) (b) , 1 or more unsuccessful applications were made to the court for a direction under section 83A (5AA) to require a person to attend a proceeding to give oral evidence. Subsection (6E) could not be applied if any application of the type mentioned in this subsection were successful because in that case, the requirement stated in subsection (6D) (a) would not be satisfied. (sec.110A-ssec.7) Where some of the evidence before justices consists of written statements admitted in accordance with this section and some of the evidence is evidence given orally by witnesses upon their examination under this part, the justices shall, when all the evidence to be offered on the part of the prosecution is before them, consider such evidence and determine whether it is sufficient to put the defendant upon trial for an indictable offence, whereupon the provisions of this part shall apply as in the case of an examination of witnesses where there are no written statements admitted pursuant to this section. (sec.110A-ssec.8) A written statement tendered by the defence may be admitted as evidence by justices pursuant to this section subject to agreement between the prosecution and the defence that the person making the statement shall be present when the written statement is tendered to be cross-examined by the other party or parties, as the case requires, and in any such case the justices shall consider both the written and the oral evidence in respect of that person. (sec.110A-ssec.9) Notwithstanding that a written statement made by any witness is admissible by virtue of this section as part of the defence case, whether it has been admitted in the proceedings before justices or not, the justices may require that witness to attend before them and to give evidence, and in respect of those proceedings the justices shall consider all the evidence, oral and written (and exhibits (if any)), whether the defendant’s lawyer has consented to a committal for trial or sentence or not, and determine whether such evidence is sufficient to put the defendant upon trial for an indictable offence, whereupon the provisions of this part shall apply as in the case of an examination of witnesses where there are no written statements admitted pursuant to this section. (sec.110A-ssec.10) Where all the evidence before justices consists of written statements admitted in accordance with this section and counsel or the solicitor for the defendant does not consent to the defendant being committed for trial or for sentence, or the defendant is not legally represented, the justices, after hearing any submissions the prosecution and the defence desire to make, shall determine whether the evidence is sufficient to put the defendant upon trial for an indictable offence, whereupon the provisions of this part shall apply as in the case of an examination of witnesses where there are no written statements admitted pursuant to this section. (sec.110A-ssec.11) A written statement admitted in accordance with this section shall, on being so admitted by the justices, be signed by the justices. (sec.110A-ssec.12) A written statement admitted in accordance with this section shall have effect as if it is the deposition of the witness whose statement it is, and it may be used at the trial of the defendant in the same manner, to the same extent and for the same purpose as a deposition may be used. (sec.110A-ssec.13) A written statement admitted in accordance with this section may, when the defendant has been committed by justices to be tried for an indictable offence, without further proof be read as evidence on the trial of the defendant, whether for the offence for which the defendant has been committed for trial or for any other offence for which an indictment shall be presented, arising out of the same transaction or set of circumstances as the offence for which the defendant has been committed for trial, and whether or not combined with other circumstances, if— the written statement purports to be signed in the manner prescribed by the person making it and by the justices before whom it purports to have been tendered as evidence; and the condition mentioned in section 111 (3) (a) , read with the words ‘written statement’ substituted for the word ‘deposition’ where twice occurring, is satisfied. (sec.110A-ssec.13A) The provisions of the Criminal Law Amendment Act 1892 , section 4 apply for the purposes of subsection (13) as though the reference to ‘depositions’ or ‘deposition’ is a reference to ‘written statements’ or ‘written statement’ referred to in this section. (sec.110A-ssec.14) If a written statement admitted in accordance with this section refers to any other document as an exhibit, the copy given to any other party to the proceedings under subsection (6C) shall be accompanied by a copy of that document or by such information as may be necessary in order to enable the party to whom it is given to inspect that document or a copy thereof. (sec.110A-ssec.15) Any document or object referred to as an exhibit and identified in a written statement admitted in accordance with this section shall be treated as if it had been produced as an exhibit and identified during the proceedings by the maker of the statement. (sec.110A-ssec.16) For a law about taking certain children’s evidence for committal proceedings for certain offences, see the Evidence Act 1977 , part 2 , division 4A , subdivision 2 . - (a) must, subject to the provisions of this section being satisfied, admit the statement as evidence; and - (b) must not require the witness to appear before them to give evidence or make a statement unless the witness is required to be called by the prosecution because a direction has been issued under section 83A (5AA) . - (a) the defendant understands what the proceeding is about and the possible consequences for the defendant arising out of the proceeding; - (b) the defendant is aware that the defendant— (i) is entitled to be legally represented; and (ii) may apply for legal assistance; - (i) is entitled to be legally represented; and - (ii) may apply for legal assistance; - (c) the defendant has been made aware that the defendant has a right to apply for a direction under section 83A (5AA) that the witness attend the proceeding to give oral evidence; - (d) the defendant has been given an explanation of the requirements that apply under this division for making an application as mentioned in paragraph (c) . - (i) is entitled to be legally represented; and - (ii) may apply for legal assistance; - (a) is taken to be evidence given or a statement made under section 104 upon an examination of witnesses in relation to an indictable offence; and - (b) is admissible as evidence to the same extent as it would be if the contents of the statement had been given by the oral evidence of the person who made the written statement. - (a) the prosecution agrees to its admission; and - (b) no other party to the proceeding objects, before the written statement is admitted in evidence, to the statement being admitted under this section. - (a) a copy of it has been made available, by or on behalf of the party proposing to tender it, to the other party or parties; and - (b) when the copy was made available, the party proposing to tender it advised that the copy was being made available with the intention that the written statement be admitted under this section; and - (c) it is signed by the person making it and contains a declaration by the person under the Oaths Act 1867 , or a written acknowledgement by the person, to the effect that— (i) the statement is true to the best of the person’s knowledge and belief; and (ii) the person made the statement knowing that the person may be liable to prosecution for stating in it anything that the person knew was false. - (i) the statement is true to the best of the person’s knowledge and belief; and - (ii) the person made the statement knowing that the person may be liable to prosecution for stating in it anything that the person knew was false. - (i) the statement is true to the best of the person’s knowledge and belief; and - (ii) the person made the statement knowing that the person may be liable to prosecution for stating in it anything that the person knew was false. - (a) all the evidence before the justices, whether for the prosecution or the defence, without reference to other evidence by way of exhibits, comprises written statements admitted in accordance with this section; and - (b) the lawyer for the defendant consents to the defendant being committed for trial, or consents to the defendant being committed for sentence, without consideration of the contents of the written statements. - (a) formally charge the defendant; and - (b) order the defendant to be committed for trial or for sentence. - (a) the written statement purports to be signed in the manner prescribed by the person making it and by the justices before whom it purports to have been tendered as evidence; and - (b) the condition mentioned in section 111 (3) (a) , read with the words ‘written statement’ substituted for the word ‘deposition’ where twice occurring, is satisfied.