39ARequests by Attorney‑General on behalf of a defendant

#### 39A Requests by Attorney‑General on behalf of a defendant (1) If a defendant in a proceeding relating to a criminal matter thinks that it is necessary for the purposes of the proceeding that: (a) evidence should be taken in a foreign country; or (b) a document or other article in a foreign country should be produced; or (c) a thing located in a foreign country should be seized; or (d) arrangements should be made for a person who is in a foreign country to come to Australia to give evidence relevant to the proceeding; the defendant may apply to the relevant court (see subsection (1A)) for a certificate that it would be in the interests of justice for the Attorney‑General to make any appropriate request to the foreign country under Part II, III or IV so that: (e) the evidence may be taken; or (f) the document or article may be produced; or (g) the thing may be seized; or (h) the arrangements may be made. (1A) For the purposes of subsection (1), the relevant court is: (a) if the proceeding is being heard in the Federal Court of Australia—that Court; or (b) otherwise—the Supreme Court of the State or Territory in which the proceeding is being heard. (2) Before making a decision on the application, the court must give an opportunity to: (a) all parties to the proceeding; and (b) the Attorney‑General; to appear before the court and be heard on the merits of the application. (3) In deciding whether to issue a certificate, the court must have regard to the following matters: (a) whether the foreign country is likely to grant such a request made by the Attorney‑General on behalf of the defendant; (b) the extent to which the material (whether it is evidence, a document, an article or a thing) that the defendant seeks to obtain from the foreign country would not otherwise be available; (c) whether the court hearing the proceeding would be likely to admit the material into evidence in the proceeding; (d) the likely probative value of the material, if it were admitted into evidence in the proceeding, with respect to any issue likely to be determined in the proceeding; (e) whether the defendant would be unfairly prejudiced if the material were not available to the court. (4) Subsection (3) does not prevent the court from having regard to any other matter that it considers relevant. (5) If the court issues a certificate: (a) the court must send a copy of the certificate to the Attorney‑General; and (b) the Attorney‑General must, in accordance with the certificate, make a request on behalf of the defendant to the foreign country for international assistance unless he or she is of the opinion, having regard to the special circumstances of the case, that the request should not be made.