South Australian Numbered Acts South Australian Numbered Acts41—Insertion of sections 34KA to 34KD
After section 34K insert:
34KA—Admissibility of evidence of out of court statements by unavailable witnesses
(1) Subject to this section, in prescribed proceedings, a statement not made in oral evidence in the proceedings (an "out of court statement") is admissible as evidence of any matter stated if—
(a) oral evidence given in the proceedings by the person who made the out of court statement would be admissible as evidence of that matter; and
(b) the person who made the out of court statement (the "relevant person ) is identified to the court’s satisfaction; and
(c) any 1 of the conditions specified in subsection (2) is satisfied.
(2) The conditions are as follows:
(a) that the relevant person is dead;
(b) that the relevant person is unfit to be a witness because of a bodily or mental condition;
(c) that the relevant person is outside of the State and it is not reasonably practicable to secure his or her attendance;
(d) that the relevant person cannot be found although such steps as it is reasonably practicable to take to find him or her have been taken;
(e) that through fear the relevant person does not give (or does not continue to give) oral evidence in the proceedings, either at all or in connection with the subject matter of the out of court statement, and the court gives leave for the out of court statement to be given in evidence.
(3) For the purposes of subsection (2)(e) "fear" is to be widely construed and includes, for example, fear of the death or injury of another person or of financial loss.
(4) Leave may be given under subsection (2)(e) only if the court considers that the out of court statement ought to be admitted in the interests of justice, having regard to—
(a) any information (whether or not given in evidence, or of a kind that could be given in evidence) suggesting threats have been made to the witness, whether directly or indirectly; and
(b) the statement’s contents; and
(c) any risk that its admission or exclusion will result in unfairness to a defendant in the proceedings (and in particular to how difficult it will be to challenge the statement if the relevant person does not give oral evidence and the defendant is not able to cross-examine the person); and
(d) any other measures that could be taken by the court in relation to the relevant person; and
(e) any other relevant circumstances.
(5) A condition set out in any paragraph of subsection (2) which is in fact satisfied is to be treated as not satisfied if it is shown that the circumstances described in that paragraph are caused—
(a) by the person in support of whose case it is sought to give the out of court statement in evidence; or
(b) by a person acting on his or her behalf, in order to prevent the relevant person giving oral evidence in the proceedings (whether at all or in connection with the subject matter of the out of court statement).
(6) Nothing in this section makes an out of court statement admissible as evidence if it was made by a person who was not competent at the time when he or she made the statement.
(7) This section is in addition to, and does not derogate from, any other power of a court to admit an out of court statement into evidence.
(8) In this section—
"prescribed proceedings" means—
(a) proceedings for a criminal offence; or
(b) proceedings under the Serious and Organised Crime (Control) Act 2008 .
34KB—Credibility
(1) This section applies if in prescribed proceedings—
(a) a statement not made in oral evidence in the proceedings (an "out of court statement ) is admitted as evidence of a matter stated; and
(b) the maker of the out of court statement does not give oral evidence in connection with the subject matter of the statement.
(2) In a case to which this section applies—
(a) any evidence which (if the person who made the out of court statement had given such evidence) would have been admissible as relevant to the reliability of the statement and the person's credibility as a witness is so admissible in the proceedings; and
(b) evidence may, with the court’s leave, be given of any matter which (if the person who made the out of court statement had given such evidence) could have been put to the person in cross-examination as relevant to the reliability of the statement and the person's credibility as a witness but of which evidence could not have been adduced by the cross-examining party; and
(c) evidence tending to prove that the person who made the out of court statement made (at whatever time) any other statement inconsistent with the statement admitted as evidence is admissible for the purpose of showing that the person contradicted himself or herself.
(3) If as a result of evidence admitted under this section an allegation is made against the maker of a statement, the court may permit a party to lead additional evidence of such description as the court may specify for the purposes of denying or answering the allegation.
(4) In this section—
"prescribed proceedings" means—
(a) proceedings for a criminal offence; or
(b) proceedings under the Serious and Organised Crime (Control) Act 2008 .
34KC—Stopping the case where evidence is unconvincing
(1) If on a defendant’s trial before a judge and jury for an offence the judge is satisfied at any time after the close of the case for the prosecution that—
(a) the case against the defendant is based wholly or partly on a statement not made in oral evidence in the proceedings (an "out of court statement ); and
(b) the evidence provided by the out of court statement is so unconvincing that, considering its importance to the case against the defendant, a conviction of the offence would be unsafe,
the judge must either direct the jury to acquit the defendant of the offence or, if it considers that there ought to be a retrial, discharge the jury.
(2) Where—
(a) a jury is directed under subsection (1) to acquit a defendant of an offence; and
(b) the circumstances are such that, apart from this subsection, the defendant could if acquitted of that offence be found guilty of another offence,
the defendant may not be found guilty of that other offence if the judge is satisfied as mentioned in subsection (1) in respect of it.
(3) This section does not prejudice any other power a judge may have to direct a jury to acquit a person of an offence or to discharge a jury.
34KD—Court’s general discretion to exclude evidence
(1) In prescribed proceedings the court may refuse to admit a statement as evidence of a matter stated if—
(a) the statement was made otherwise than in oral evidence in the proceedings; and
(b) the court is satisfied that the case for excluding the statement, taking account of the danger that to admit it would result in undue waste of time, substantially outweighs the case for admitting it, taking account of the value of the evidence.
(2) Nothing in this section derogates from any other power of a court to exclude evidence at its discretion (whether by preventing questions from being put or otherwise).
(3) In this section—
"prescribed proceedings" means—
(a) proceedings for a criminal offence; or
(b) proceedings under the Serious and Organised Crime (Control) Act 2008 .