South Australian Numbered Acts

AUSTRALIAN CRIME COMMISSION (SOUTH AUSTRALIA) ACT 2004 (NO 7 OF 2004) - SECT 18

18—Conduct of examination

        (1)         An examiner may regulate the conduct of proceedings at an examination as the examiner thinks fit.

        (2)         At an examination before an examiner—

            (a)         a person giving evidence may be represented by a legal practitioner; and

            (b)         if, by reason of the existence of special circumstances, the examiner consents to a person who is not giving evidence being represented by a legal practitioner—the person may be so represented.

        (3)         An examination before an examiner must be held in private and the examiner may give directions as to the persons who may be present during the examination or a part of the examination.

        (4)         Nothing in a direction given by the examiner under subsection (3) prevents the presence, when evidence is being taken at an examination before the examiner, of—

            (a)         a person representing the person giving evidence; or

            (b)         a person representing, in accordance with subsection (2), a person who, by reason of a direction given by the examiner under subsection (3), is entitled to be present.

        (5)         If an examination before an examiner is being held, a person (other than a member of the staff of the ACC approved by the examiner) must not be present at the examination unless the person is entitled to be present by reason of a direction given by the examiner under subsection (3) or by reason of subsection (4).

        (6)         At an examination before an examiner—

            (a)         counsel assisting the examiner generally or in relation to the matter to which the ACC operation/investigation relates; or

            (b)         any person authorised by the examiner to appear before the examiner at the examination; or

            (c)         any legal practitioner representing a person at the examination in accordance with subsection (2),

may, so far as the examiner thinks appropriate, examine or cross-examine any witness on any matter that the examiner considers relevant to the ACC operation/investigation.

        (7)         If a person (other than a member of the staff of the ACC) is present at an examination before an examiner while another person (the "witness") is giving evidence at the examination, the examiner must—

            (a)         inform the witness that the person is present; and

            (b)         give the witness an opportunity to comment on the presence of the person.

        (8)         To avoid doubt, a person does not cease to be entitled to be present at an examination before an examiner or part of such an examination if—

            (a)         the examiner fails to comply with subsection (7); or

            (b)         a witness comments adversely on the presence of the person under subsection (7)(b).

        (9)         An examiner may direct that—

            (a)         any evidence given before the examiner; or

            (b)         the contents of any document, or a description of any thing, produced to the examiner; or

            (c)         any information that might enable a person who has given evidence before the examiner to be identified; or

            (d)         the fact that any person has given or may be about to give evidence at an examination,

must not be published, or must not be published except in such manner, and to such persons, as the examiner specifies. The examiner must give such a direction if the failure to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been, or may be, charged with an offence.

        (10)         Subject to subsection (11), the CEO may, in writing, vary or revoke a direction under subsection (9).

        (11)         The CEO must not vary or revoke a direction if to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been or may be charged with an offence.

        (12)         If—

            (a)         a person has been charged with an offence before a federal court or before a court of the State; and

            (b)         the court considers that it may be desirable in the interests of justice that particular evidence given before an examiner, being evidence in relation to which the examiner has given a direction under subsection (9), be made available to the person or to a legal practitioner representing the person,

the court may give to the examiner or to the CEO a certificate to that effect and, if the court does so, the examiner or the CEO, as the case may be, must make the evidence available to the court.

        (13)         If—

            (a)         the examiner or the CEO makes evidence available to a court in accordance with subsection (12); and

            (b)         the court, after examining the evidence, is satisfied that the interests of justice so require,

the court may make the evidence available to the person charged with the offence concerned or to a legal practitioner representing the person.

        (14)         A person who—

            (a)         is present at an examination in contravention of subsection (5); or

            (b)         makes a publication in contravention of a direction given under subsection (9),

is guilty of an offence.

Maximum penalty: $2 200 or imprisonment for 1 year.

        (15)         At the conclusion of an examination held by an examiner, the examiner must give the head of the special ACC operation/investigation—

            (a)         a record of the proceedings of the examination; and

            (b)         any documents or other things given to the examiner at, or in connection with, the examination.