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Mutual Assistance in Criminal Matters (Amendment) Act 2001

Assent: 30 December 2001
Commencement: 01 May 2000

REPUBLIC OF VANUATU

MUTUAL ASSISTANCE IN CRIMINAL MATTERS
AMENDMENT ACT NO. 17 OF 2001

Arrangement of Sections

1. Amendments
2. Commencement
   

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REPUBLIC OF VANUATU

Assent: 30 December 2001
Commencement: 01 May 2000

MUTUAL ASSISTANCE IN CRIMINAL MATTERS
AMENDMENT ACT NO. 17 OF 2001

An act to amend the Mutual Assistance in Criminal Matters Act No. 52 of 1989

Be it enacted by the President and Parliament as follows-

1. Amendments
   

The Mutual Assistance in Criminal Matters Act No. 52 of 1989 Act is amended as set out in the Schedule.

2. Commencement
   

This Act is taken to have commenced on 1 May 2000.

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SCHEDULE

AMENDMENTS OF THE MUTUAL ASSISTANCE IN CRIMINAL MATTERS ACT NO. 52 OF 1989

1. After Part 4
   

Insert

“Part 4A - Admissibility of foreign evidence

In this Part:

civil proceeding means a proceeding other than a criminal proceeding.

criminal proceeding includes:

(a) a prosecution for an offence; and

(b) a proceeding for the committal of a person for trial for an offence; and

(c) a proceeding for the sentencing of a person convicted of an offence.

foreign law means a law (whether written or unwritten) of, or in force in, a country other than Vanuatu.

foreign material means:

(a) the testimony of a person that:

(i) was obtained as a result of a request of a kind mentioned in section 28C; and

(ii) complies with section 28E; and

(b) any exhibit annexed to the testimony; and

(c) any part of the testimony or exhibit.

related civil proceedings, for a criminal proceeding, means civil proceedings arising from the same subject matter from which the criminal proceeding arose.

Vanuatu Court means:

(a) the Supreme Court of Vanuatu; or

(b) a magistrates court in Vanuatu; or

(c) a judge or arbitrator acting under Vanuatu law; or

(d) a person or body authorised by a Vanuatu law, or by consent of parties, to hear, receive and examine evidence.

Vanuatu law means a law (whether written or unwritten) of, or in force in, Vanuatu.

This Part applies to a proceeding, before a Vanuatu Court, that is:

(a) a criminal proceeding for an offence against Vanuatu law; or

(b) a related civil proceeding.

This Part applies to:

(a) testimony obtained as a result of a request made by or for the Attorney-General to a foreign country for the testimony of a person; and

(b) any exhibit annexed to the testimony.

(1) The testimony must be taken before a superior court of record in the foreign country concerned:

(a) on oath or affirmation; or

(b) under such caution or admonition as would be accepted, by superior courts in the foreign country concerned, for giving testimony in proceedings before those courts.

(2) The testimony may be taken in closed court.

(1) The testimony may be recorded in any of the following ways:

(a) in writing;

(b) on audio tape;

(c) on video tape.

(2) The testimony need not:

(a) be in the form of an affidavit; or

(b) constitute a transcript of a proceeding in a foreign court.

(3) The testimony must be endorsed with, or be accompanied by, a certificate to the effect that:

(a) it is an accurate record of the evidence given; and

(b) it was taken in the manner required by section 28D.

(4) The certificate must:

(a) purport to be signed or certified by a judge, magistrate or court officer of the foreign country to which the request was made; and

(b) purport to bear an official or public seal of:

(i) the country; or

(ii) an authority of the country responsible for matters relating to justice (that is, a Minister of State, a Ministry or Department of Government, or an officer of the Government).

Foreign material may be adduced as evidence in a proceeding to which this Part applies unless:

(a) at the hearing of the proceeding, it appears to the Vanuatu Court’s satisfaction that the person who gave the testimony concerned is present in Vanuatu and is able to testify at the hearing; or

(b) the evidence would not have been admissible if it had been given by the person at the hearing; or

(c) in the proceeding the Vanuatu Court directs, under section 28G, that the foreign material must not be adduced as evidence.

(1) The Vanuatu Court may direct that foreign material not be adduced as evidence if it appears to the Vanuatu Court’s satisfaction that the interests of justice would be better served if the foreign material were not adduced as evidence.

(2) Without limiting the matters that the Vanuatu Court may take into account in deciding whether to give such a direction, it must take into account:

(a) the extent to which the foreign material provides evidence that would not otherwise be available; and

(b) the probative value of the foreign material for any issue that is likely to be determined in the proceedings; and

(c) the extent to which statements contained in the foreign material could, at the time they were made, be challenged by questioning the persons who made them; and

(d) whether exclusion of the foreign material would cause undue expense or delay; and

(e) whether exclusion of the foreign material would prejudice:

(i) the defence in criminal proceedings; or

(ii) a party to related civil proceedings.

(1) The Attorney-General may certify that specified foreign material was obtained as a result of a request made to a foreign country by or for the Attorney-General.

(2) It is presumed (unless evidence to the contrary is adduced sufficient to raise reasonable doubt) that the foreign material specified in the certificate was obtained as a result of that request.

(1) Nothing in this Part limits a right of the defendant in criminal proceedings to which this Part applies to examine in person or by his or her legal representative a witness whose testimony is admitted in evidence in those proceedings.

(2) If the defendant requests that the person who gave the testimony be present at the hearing in Vanuatu to be cross-examined, the Vanuatu Court must warn the defendant that he or she may be ordered to pay any expenses incurred by the State in making the person available before the Vanuatu Court.

(3) The Vanuatu Court may order the defendant to pay any expenses incurred by the State in obtaining the attendance of a person as a witness if:

(a) as a result of the request, the person appears before the Vanuatu Court as a witness; and

(b) it appears to the Vanuatu Court that the cross-examination of the person was unnecessary, trivial or irrelevant to the matters in issue in the proceedings.

(4) A certificate signed by the Attorney-General is evidence of the expenses incurred by the State for subsection (3).

(5) An amount payable by a person to the State under an order under subsection (3) is a civil debt due by the person to the State.

(6) An order against a person under subsection (3) may be enforced as if it were an order made in civil proceedings instituted by the State against the person to recover a debt due by the person to the State and the debt arising from the order is taken to be a judgment debt.

This Part does not limit the ways in which a matter may be proved, or evidence may be adduced, under any other law.”.

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REPUBLIC OF VANUATU

BILL FOR THE MUTUAL ASSISTANCE IN CRIMINAL MATTERS (AMENDMENT) ACT NO. 17 OF 2001

Explanatory Note

This Bill amends the Mutual Assistance in Criminal Matters Act to allow evidence from foreign countries to be used in Vanuatu courts. It can be used in criminal proceedings and related civil proceedings.

This Bill is deemed to have commenced on 1 May 2000. The retrospective commencement is necessary to allow existing evidence from foreign countries to be used in proceedings.

Prime Minister

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