Western Australian Current Acts Western Australian Current Acts[s. 158]
In this Schedule,
unless the contrary intention appears —
relevant court , in relation to a charge against
an accused, means —
(a) if
the accused is committed to a superior court on the charge, or if an
indictment containing the charge is lodged in a superior court, the superior
court;
(b)
otherwise, the court of summary jurisdiction in which the accused is charged.
2 . Evidence Act 1906 not affected
This Schedule is in
addition to and does not limit the operation of the Evidence Act 1906 .
3 . Admissibility of dying declarations not
affected
This Schedule does not
affect the law as to the admissibility of dying declarations.
4 . Witness statements, formalities of
(1) A written
statement containing the evidence of a witness that is or may be relevant to a
charge is made in accordance with this clause if the statement complies with
the conditions in subclause (3).
(2) An electronically
recorded statement containing the evidence of a witness that is or may be
relevant to a charge is made in accordance with this clause if the statement
complies with the conditions in subclause (4).
(3) The conditions
with which a written statement must comply are as follows —
(a) the
statement identifies the person making it (the maker ); and
(b) if
the maker is under 18 years of age, it states his or her age; and
(c)
unless the maker is under 12 years of age, it contains a declaration in
accordance with subclause (5); and
(d) the
statement purports to be signed by the maker; and
(e) if
the statement is made by a person who cannot read, it is read aloud to the
maker before the maker signs it, and it is accompanied by a declaration of the
person who read the statement to the effect that it was so read.
(4) The conditions
with which an electronically recorded statement must comply are as follows
—
(a) the
statement identifies the person making it (the maker ); and
(b) if
the maker is under 18 years of age, it states his or her age; and
(c)
unless the maker is under 12 years of age, it contains a declaration in
accordance with subclause (5).
(5) A declaration is
in accordance with this subclause if it contains words to the following effect
—
This statement is true
to the best of my knowledge and belief. I have made this statement knowing
that, if it is tendered in evidence, I will be guilty of a crime if I have
wilfully included in the statement anything that I know to be false or that I
do not believe is true.
(6) A statement is
deemed to be tendered in evidence under this clause at the time that the
statement is tendered to the court.
(7) Any document or
object referred to as an exhibit and identified in a statement tendered in
evidence under this clause is deemed to have been produced before the court
and identified by the maker of the statement.
(8) If the maker of a
statement that is tendered in evidence under this clause wilfully includes
anything in it that he or she knows is false or that he or she does not
believe is true, he or she is guilty of a crime and is liable to imprisonment
for 7 years.
5 . Examination of witness, court may order
(1) At any time after
a person is charged with an offence and before the trial of the charge, the
prosecutor may apply to the relevant court for an order that a person who is
or may be able to give evidence that is or may be relevant to the charge (the
witness ) be examined and recorded under clause 6 before the trial of the
charge.
(2) The application
must be served on the accused and must be dealt with in the presence of the
accused unless the relevant court orders otherwise.
(3) A relevant court
may only make an order under subclause (2) if it is satisfied that the order
is necessary —
(a) to
protect the safety or welfare of a person, including the witness; or
(b) to
prevent interference with the course of justice; or
(c) for
any other good reason.
(4) On an application
made under subclause (1) the relevant court may make the order if it is
satisfied that the witness —
(a) is
or may be able to give evidence that is or may be relevant to the charge; and
(b)
despite a request to do so from the person in charge of investigating the
alleged offence or the prosecutor, has refused to make a statement that
complies with clause 4 and that contains the witness’s evidence in
relation to the charge.
(5) If a court makes
an order under subclause (1) it may also issue a witness summons, or an arrest
warrant, under Part 5 Division 7, or make any order under Schedule 4, in
respect of the witness to ensure the witness appears before the court to be
examined under clause 6.
[Clause 5 amended: No. 2 of 2008 s. 30.]
6 . Examination of witness, conduct of
(1) When a witness
appears or is brought before a court on a summons or arrest warrant issued
under clause 5(5), the witness is to be examined on oath or affirmation, and
his or her evidence is to be recorded, in accordance with this clause.
(2) At the examination
—
(a) the
prosecutor is entitled to examine, and if necessary, re-examine the witness;
and
(b) the
accused is entitled to be present and to cross-examine the witness, unless an
order has been made under clause 5(2); and
(c) the
court must conduct proceedings as if the witness were giving evidence in a
trial of the charge concerned but must not allow the witness to be
cross-examined on any matter —
(i)
that relates solely to his or her credibility; or
(ii)
that does not relate directly to evidence given by him or
her when being examined by the prosecutor.
(3) A court conducting
an examination of a witness under this clause is not prevented from making
orders under the Evidence Act 1906 sections 106A to 106T in relation to the
witness.
(4) The court must
ensure that the evidence of the witness is —
(a)
electronically recorded; or
(b) if
electronically recording it is not practicable, recorded directly in writing.
(5) If the evidence of
a witness is electronically recorded, the court may order the evidence to be
transcribed, in which case the transcript must be checked and certified as
correct in accordance with the regulations.
(6) If the evidence of
a witness is recorded directly in writing, the evidence must be read to or by
the witness, signed by the witness and signed by the judicial officer
constituting the court.
(7) The court must
give a copy of the recording of a witness’s evidence and any transcript
of it to the prosecutor and, if the accused was present at the examination of
the witness, the accused.
(8) If a person
publishes any evidence given by a witness on an examination under this clause
before the evidence is given in open court in a trial or in sentencing
proceedings, or before its substance is stated aloud under section 129, the
person commits an offence.
Penalty:
(a) for
an individual, a fine of $12 000 or imprisonment for 12 months;
(b) for
a corporation, a fine of $60 000.
(9) Subclauses (7) and
(8) do not affect any legal obligation that a prosecutor has in the course of
a prosecution to lodge or disclose the evidence of a witness.
7 . Witness’s pre-trial evidence, use of at
trial
(1) A court dealing
with a charge may admit into evidence a statement of a witness or a recording
of a witness’s evidence if the court is satisfied that the statement
complies with clause 4 or the recording was made in accordance with clause 6
and —
(a) that
the witness is dead; or
(b) that
the witness’s medical or mental condition is such that the witness is
unable to give evidence, or to give evidence satisfactorily, notwithstanding
that the witness might recover at some future time; or
(c) that
the witness is out of the State and is not able to give evidence at the
proceeding by means of a video link or an audio link, notwithstanding that the
witness might return at some future time; or
(d) that
the witness is being kept out of the way by the accused; or
(e) that
all the parties consent and that the interests of justice do not require the
presence of the witness.
(2) If there is a
prospect that the witness might recover or return, the court need not admit
the statement or recording but may adjourn the trial.
(3) A party who
intends to apply to a court for the admission under subclause (1) of a
statement or recording must give each other party written notice of the
application.
(4) A party who has
received at least 14 days’ notice under subclause (3) must not allege
—
(a) that
a statement sought to be tendered in evidence does not comply with clause 4;
or
(b) that
a recording sought to be tendered in evidence was not made in accordance with
clause 6,
unless the party has
given the party who intends to tender it at least 7 days’ written notice
of the allegation.
(5) A court may refuse
to admit a statement or recording under this clause if the court is satisfied
that the admission of the statement or recording would be unfair to the party.
(6) If a statement or
a recording in a written form is admitted in evidence under this clause in a
case being tried by a jury, it must be read aloud to the jury but, unless the
court orders otherwise, must not be given to the jury.
(7) If a recording in
the form of an electronic recording is admitted in evidence under this clause
in a case being tried by a jury, it must be played to the jury but, unless the
court orders otherwise, must not be given to the jury.