Criminal Procedure (Attendance of Witnesses) Act 1996 (TAS)

Criminal Procedure (Attendance of Witnesses) Act 1996

An Act to provide for securing the attendance of witnesses in criminal proceedings in the Supreme Court and to make consequential amendments to the Criminal Code and the Evidence Act 1910

[Royal Assent 10 July 1996]

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

PART 1Preliminary1Short titleThis Act may be cited as the Criminal Procedure (Attendance of Witnesses) Act 1996 . 2CommencementThis Act commences on a day to be proclaimed. 3InterpretationIn this Act, unless the contrary intention appears – Court means the Supreme Court of Tasmania; criminal proceeding includes – (a) a proceeding for contempt of court; and (b) [Section 3 Amended by No. 29 of 2018, s. 26, Applied:10 Dec 2018] a proceeding under section 357 or 409 of the Criminal Code; and (c) a hearing on a plea of guilty; and (ca) [Section 3 Amended by No. 29 of 2018, s. 26, Applied:10 Dec 2018] an application to a single judge or an associate judge made under a provision of the Criminal Code Act 1924 ; and (d) [Section 3 Amended by No. 29 of 2018, s. 26, Applied:10 Dec 2018] any other proceeding held for the purposes of the criminal jurisdiction of the Court – [Section 3 Amended by No. 29 of 2018, s. 26, Applied:10 Dec 2018] but does not include an appeal or application to the Court of Criminal Appeal; final notice means a final notice to a witness issued under section 10 ; intended witness means a person named as a witness in a preliminary notice or final notice; preliminary notice means a preliminary notice to a witness issued under section 5 ; recognisance means a recognisance in force under section 12 ; Registrar means the Registrar of the Court. 4Application of ActThis Act does not apply to a person who – (a) under any other Act or law, may not be compelled to attend as a witness in a criminal proceeding; or (b) is required by writ of habeas corpus ad testificandum or habeas corpus ad respondendum to attend court and give evidence. PART 2Notices to witnessDivision 1Preliminary notices5Preliminary notice to witness (1)  [Section 5 Subsection (1) amended by No. 29 of 2018, s. 27, Applied:10 Dec 2018] On application by the prosecutor, an accused person, an applicant, a respondent to an application or any other person who is a party to a criminal proceeding, the Registrar must issue a preliminary notice in the prescribed form to any person named in the notice requiring that person to attend and give evidence at a criminal proceeding. (2)  [Section 5 Subsection (2) amended by No. 29 of 2018, s. 27, Applied:10 Dec 2018] A person is not required to attend as a witness under subsection (1) until he or she is served with a final notice on behalf of the person who applied for the preliminary notice. (3)  [Section 5 Subsection (3) amended by No. 29 of 2018, s. 27, Applied:10 Dec 2018] As soon as practicable after the issue of a preliminary notice, the person who applied for the notice must cause the notice to be served on the intended witness. 6Change of address or inability to attend (1) Where a person served with a preliminary notice proposes to change his or her place of residence, employment or business from the address specified in the notice, that person must – (a) as early as practicable before the change occurs, give notice in writing of the change to the person who caused the notice to be issued; or (b) if it is not practicable to do so, give oral notice of the change to that person. (2) Where a person served with a preliminary notice is of opinion that circumstances have arisen or may arise that will, or may, prevent that person from attending and giving evidence, either generally or during a particular period, in a criminal proceeding, that person must – (a) as soon as practicable after the relevant facts have come to his or her knowledge, give notice in writing of those facts to the person who caused the notice to be issued; or (b) if it is not practicable to do so, give oral notice of those facts to that person. 7Limitation of obligations under preliminary noticeThe obligations arising under a preliminary notice cease on the expiration of 6 months after the date on which it is served. 8Notice to state effect of this DivisionA preliminary notice is to include a statement specifying the duties imposed on an intended witness under this Division. 9Effect of preliminary noticeA preliminary notice is not affected by a postponement or adjournment of the criminal proceeding in respect of which the notice was issued. Division 2Final notices10Issue of final notice (1)  [Section 10 Subsection (1) amended by No. 29 of 2018, s. 28, Applied:10 Dec 2018] The Registrar must, on application by the prosecutor, an accused person, an applicant, a respondent to an application or any other person who is a party to a criminal proceeding, and whether or not a preliminary notice has been issued, cause a final notice in the prescribed form to be issued to an intended witness requiring him or her to attend in a criminal proceeding to give evidence and to produce such documents, articles or things as may be specified in the notice. (2)  [Section 10 Subsection (2) amended by No. 29 of 2018, s. 28, Applied:10 Dec 2018] A final notice is to include a statement specifying – (a) the date, time and place at which the intended witness is required to attend; and (b) the penalties to which the intended witness may be subject on failure to comply with the notice – and is to be served by, or at the behest of, the person who applied for it as soon as practicable after it has been issued. Division 3Discharge of notices11Discharge of notices to witnessesA preliminary notice and a final notice cease to have effect when the accused person is discharged from all proceedings in respect of the offence or offences to which the notice relates. Division 4Recognisances12Recognisance to secure attendance of witness (1)  [Section 12 Subsection (1) amended by No. 29 of 2018, s. 29, Applied:10 Dec 2018] On application by the prosecutor, an accused person, an applicant, a respondent to an application or any other person who is a party to a criminal proceeding, a judge may require an intended witness to enter into a recognisance in such terms as the judge thinks fit in order to secure the attendance of that person as a witness or the production of documents, articles or things in his or her possession or custody in a criminal proceeding. (2) If a person bound by a recognisance fails to appear and give evidence in a criminal proceeding pursuant to the recognisance, the Court, on production of the recognisance, may order that the amount of the recognisance be forfeited to the Crown. (3)  In proceedings for an order under subsection (2) , it is a defence if the intended witness can show that he or she was unable to afford the reasonable cost of transport to the criminal proceeding. (4) An intended witness who is bound by a recognisance may, within such time as may be appointed by the Court, show cause before a judge why a condition of the recognisance should not be enforced and, on cause being shown, a judge must inquire into the circumstances of the case and, if the judge thinks fit, may order the discharge of the whole or any part of the amount ordered to be forfeited. PART 3Intended witnesses13Issue of warrant for arrest of intended witness (1)  [Section 13 Subsection (1) substituted by No. 29 of 2018, s. 30, Applied:10 Dec 2018] If, on application by the prosecutor, an accused person, an applicant, a respondent to an application or any other person who is a party to a criminal proceeding, it appears to a judge that there are reasonable grounds for believing that an intended witness has failed, or is likely to fail, to attend in the criminal proceeding to give evidence as required by a preliminary notice or a final notice, the judge may issue a warrant for the arrest of that intended witness, whether or not that intended witness has previously entered into a recognisance under section 12 . (2)  At the hearing of an application under subsection (1) , the judge may inform himself or herself in any manner that he or she thinks fit. (3)  [Section 13 Subsection (3) inserted by No. 29 of 2018, s. 30, Applied:10 Dec 2018] When issuing a warrant to arrest an intended witness under subsection (1) , the judge may also – (a) require that the intended witness be held in custody until such time as he or she appears to give evidence, or produce documents, articles or things in his or her possession or custody, in the relevant criminal proceeding; or (b) set such terms for a recognisance as the judge thinks fit in order to secure the attendance of the intended witness, or the production of documents, articles or things in his or her possession or custody, in the relevant criminal proceeding and order that the intended witness be released on entering into such a recognisance. (4)  [Section 13 Subsection (4) inserted by No. 29 of 2018, s. 30, Applied:10 Dec 2018] If on being arrested under a warrant issued under subsection (1)(a) the intended witness enters into a recognisance in such terms as the judge has set under subsection (3) , the intended witness may be released but, if the witness refuses to enter into such a recognisance, the witness may be held in custody until such time as he or she appears to give evidence, or produce documents, articles or things in his or her possession or custody, in the relevant criminal proceeding. 14Power to excuse intended witness (1) An intended witness may, before the hearing of a criminal proceeding, apply to the Registrar for an order that the intended witness be excused from giving evidence at the trial. (2)  If the application under subsection (1) is opposed by the prosecutor or the accused person – (a) the Registrar must refer the application to a judge; and (b) the judge, if satisfied that it is in the interests of justice to do so, may order that the intended witness be excused from giving evidence at the hearing. (3)  Without limiting subsection (2) , matters which may be considered by the judge include – (a) whether the intended witness is unable to give material evidence; and (b) whether the intended witness is unable to produce material documents, articles or things; and (c) whether the intended witness will incur unreasonable hardship by attending Court; and (d) whether the evidence of the intended witness is otherwise available to the Court. (4)  At the hearing of an application under subsection (1) , the judge may inform himself or herself in any manner that he or she thinks fit. PART 4Miscellaneous and supplemental15Requirement for continued attendance at courtA person who has been served with a final notice is required to attend in a criminal proceeding on the date specified in the notice and from day to day until excused by the Court from further attendance. 16Requirement to tender conduct money abolished (1) The requirement for the tender of conduct money for the appearance of a person as a witness in a criminal proceeding is abolished. (2)  Nothing in subsection (1) affects the right of a person to recover as money had and received any money paid as conduct money before the commencement of this Act. 17Expenses of witnesses (1)  [Section 17 Subsection (1) amended by No. 62 of 2000, Sched. 1, Applied:01 Jul 2001] [Section 17 Subsection (1) substituted by No. 29 of 2017, Sched. 1, Applied:05 Sep 2017] Unless otherwise ordered by the Court, the following people are entitled to be paid expenses in accordance with this section: (a) any person who gives evidence in a criminal proceeding at the request of the prosecution; (b) any person whom a Crown Law officer certifies as having attended at any place at the request of the prosecution to give such evidence. (2)  [Section 17 Subsection (2) substituted by No. 29 of 2017, Sched. 1, Applied:05 Sep 2017] The Court may order the payment of expenses to any person who attends at any place for the purpose of giving evidence in a criminal proceeding. (3) The amount of expenses payable to a person under this section is to be ascertained by the Registrar in accordance with the prescribed scale. (4)  On production of a certificate from the examining justices before whom an accused person has been charged with an indictable offence that – (a) a person who has given evidence before them against the accused person; or (b) a person bound by recognisance to appear and give evidence for the accused person upon his trial – is entitled to payment of the expenses (calculated in accordance with the prescribed scale) specified in the certificate, that person is entitled, subject to subsections (5) and (6) , to receive the amount mentioned in the certificate in addition to the amount, if any, to which he or she may be entitled under subsection (1) or (2) . (5) If, in a criminal proceeding – (a) the Court has reason to believe that any such person has attempted to evade service of the final notice or has failed to appear in obedience to the notice or in pursuance of his or her recognisance; or (b) the conduct or demeanour of any such person before the Court is in the opinion of the Court unsatisfactory or improper – the Court may order that that person is to be deprived of all or any of the amount payable to him or her under this section. (6) If the Court is of opinion that the amount certified by the examining justices to be payable under subsection (4) to a person is excessive, the Court may order the payment of such reduced amount as it thinks fit. (7) An amount payable under this section is to be paid by the Registrar to the person entitled or to another person on his or her written order out of money provided by Parliament for that purpose. (8) A witness is not entitled to expenses for attending before the examining justices unless he or she produces to the Registrar a certificate under subsection (4) . 18Abolition of subpoenae ad testificandum and duces tecum in criminal proceedings (1)  On and from the commencement of this Act a subpoena ad testificandum and a subpoena duces tecum may not be issued or used in criminal proceedings. (2)  Nothing in subsection (1) affects a subpoena ad testificandum or a subpoena duces tecum that was issued and in force immediately before the commencement of this Act and a prosecutor or an accused person is competent to bring proceedings arising from any such subpoena notwithstanding this Act. 19Failure of intended witness to appear (1) If an intended witness – (a) fails to appear and give evidence in a criminal proceeding as required by a final notice or a recognisance; and (b) is unable to show that there was a reasonable cause for the failure and that he or she took all steps reasonably available in order to comply with the requirements of the notice – the intended witness is guilty of an offence and is liable on summary conviction to a fine not exceeding 20 penalty units or imprisonment for a period not exceeding 6 months, or both. (2)  In a prosecution for an offence against subsection (1) , it is a defence if the intended witness can show that he or she was unable to afford the reasonable costs of transport to the criminal proceeding. 20Regulations (1)  The Governor may make regulations for the purposes of this Act. (2)  Without limiting the generality of subsection (1) , the regulations may make provision with respect to – (a) the procedure for making an application under this Act; and (b) the service of notices and applications to the Court or Registrar for the purposes of this Act; and (c) the issue of summonses against intended witnesses who fail to comply with notices or recognisances; and (d) the payment of expenses to witnesses. 21The amendment effected by this section has been incorporated into the authorised version of the Criminal Code . 22The amendments effected by this section have been incorporated into the authorised version of the Evidence Act 1910 . 23The amendments effected by this section have been incorporated into the authorised version of the Justices Act 1959 . 24Administration of ActUntil provision is made in relation to this Act by order under section 4 of the Administrative Arrangements Act 1990  – (a) this Act is administered by the Minister for Justice; and (b) the Department responsible to the Minister for Justice in relation to the administration of this Act is the Department of Justice.