106EProcedure in relation to hearing and determining applications under this Part

### 106E Procedure in relation to hearing and determining applications under this Part > *\[Section 106E Substituted by No. 8 of 1988, s. 5 \]* > > > (1)  *\[Section 106E Subsection (1) substituted by No. 64 of 1994, s. 9 \]*Except as otherwise provided by this Act or ordered by justices – > > > > > > (a) an application under this Part is to be heard and determined – > > > > > > > > > > (i) in open court; and > > > > > > > > > > > (ii) in the same manner, as nearly as practicable, as a complaint for a simple offence; and > > > > > > > (b) a person who makes an application under this Part is to be treated, as nearly as practicable, as a complainant. > > > (1A)  *\[Section 106E Subsection (1A) inserted by No. 64 of 1994, s. 9 \]*At the hearing of an application under this Part, the following persons may conduct the applicant's or respondent's case and examine and cross-examine witnesses: > > > > > > (a) the applicant or respondent; > > > > > > > (b) [*\[Section 106E Subsection (1A) amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008\]*](/view/html/inforce/2008-12-31/act-2007-066#JS1@Ja45@GC2@EN) [*\[Section 106E Subsection (1A) amended by No. 23 of 2009, s. 28, Applied:16 Jun 2009\]*](/view/html/inforce/2009-06-16/act-2009-023#GS28@EN) a lawyer who represents the applicant or respondent; > > > > > > > (c) a police officer who represents the applicant or respondent. > > > (1B)  *\[Section 106E Subsection (1B) inserted by No. 64 of 1994, s. 9 \]*If a police officer could, if available as a witness, give direct oral evidence of a fact in his or her professional capacity in the hearing of an application under this Part, the statutory declaration of the police officer in relation to that fact and made in support of the application is, subject to [subsection (1C)](#GS106E@Gs1C@EN) , admissible as evidence of the fact in the hearing, notwithstanding that the police officer may be available as a witness. > > > (1C)  *\[Section 106E Subsection (1C) inserted by No. 64 of 1994, s. 9 \]*A statutory declaration referred to in [subsection (1B)](#GS106E@Gs1B@EN) is not admissible as evidence in the hearing of an application under this Part if the justices, having regard to all the circumstances, are of the opinion that the representation in the statutory declaration ought not to be admitted without being tested by cross-examination. > > > (1D)  [*\[Section 106E Subsection (1D) amended by No. 3 of 2010, Sched. 1, Applied:01 Jul 2010\]*](/view/html/inforce/2010-07-01/act-2010-003#JS1@Ja37@GC1@EN) *\[Section 106E Subsection (1D) inserted by No. 64 of 1994, s. 9 \]*The representation of a medical practitioner in a document tending to establish a fact is admissible as evidence of the fact in the hearing of an application under this Part, notwithstanding that the medical practitioner may be available as a witness, if– > > > > > > (a) the medical practitioner, in his or her professional capacity, could give direct oral evidence of the fact in the hearing; and > > > > > > > (b) the justices, having regard to all the circumstances, are of the opinion that justice does not require that the representation be tested by cross-examination. > > > (2)  If the justices hearing an application under this Part are satisfied that – > > > > > > (a) a sealed copy of the application has been served on the respondent to the application; or > > > > > > > (b) reasonable attempts have been made to serve a sealed copy of the application on the respondent – > > > > > > they may proceed in the absence of the respondent and may – > > > > > > > (c) make the order sought in the application or such other order as they consider necessary; or > > > > > > > (d) issue a warrant for the apprehension of the respondent. > > > (3)  If the parties to an application under this Part consent, justices may make an order under this Part in accordance with the terms consented to by the parties. > > > (4)  [*\[Section 106E Subsection (4) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000\]*](/view/html/inforce/2000-07-01/act-1998-002#JS2@Ja10@GC2@Hpa@EN) [*\[Section 106E Subsection (4) inserted by No. 49 of 1999, Sched. 1, Applied:01 Feb 2000\]*](/view/html/inforce/2000-02-01/act-1999-049#JS1@Ja9@GC1@EN) At any time in proceedings under this Part, the justices may determine that it is appropriate that those proceedings be heard and determined by the Magistrates Court (Youth Justice Division) or the Magistrates Court (Children's Division) and may transfer the proceedings to that court. > > > (5)  [*\[Section 106E Subsection (5) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000\]*](/view/html/inforce/2000-07-01/act-1998-002#JS2@Ja10@GC2@Hpb@EN) [*\[Section 106E Subsection (5) inserted by No. 49 of 1999, Sched. 1, Applied:01 Feb 2000\]*](/view/html/inforce/2000-02-01/act-1999-049#JS1@Ja9@GC1@EN) If proceedings are transferred to the Magistrates Court (Youth Justice Division) or the Magistrates Court (Children's Division) under [subsection (4)](#GS106E@Gs4@EN) , that court has jurisdiction to hear and determine those proceedings.