PART VCRIMINAL JURISDICTION AND PROCEDURE
Provisions applying to preliminary investigations and preliminary inquiries
Reading at court of trial deposition or statements taken at preliminary investigation or inquiry of a dying person42
1
The deposition of a witness whose attendance is stated to be unnecessary under Article 39 (2) F3... may, subject to this Article, be read at the court of trial provided—
a
it is proved, either by the oath of a credible witness or by a certificate purporting to be signed by the resident magistrate orF1 lay magistrate before whom the deposition purports to have been taken or by the clerk of petty sessions, that the deposition was taken in the presence of the accused and that the accused or his counsel or solicitor (or in the case of a witness called by the accused, the prosecution) had an opportunity of cross-examining the witness;
b
the deposition purports to be signed by the resident magistrate orF1 lay magistrate before whom it purports to be taken; and
c
in the case of a witness conditionally bound over to attend the trial under Article 39 no notice has been served upon him requiring his attendance.
2
Paragraph (1) shall not have effect if it is proved that the deposition, or, where the proof required by paragraph (1) (a) is given by means of a certificate, that the certificate, was not in fact signed by the magistrate or clerk of petty sessions by whom it purports to have been signed.
3
The statement of a witness admitted in evidence at a preliminary inquiry F4... which complies with the provisions ofF2 Article 33 may, with the leave of the court, be read as evidence at the trial—
a
by agreement between the prosecution and the defence, or
b
if the court is satisfied that the witness is dead or unfit to give evidence or to attend for that purpose, or that all reasonable efforts to find him or to secure his attendance have been made without success.
4
Where notice is given requesting the attendance of a witness conditionally bound over under Article 39 at the court of trial and such notice is given so late as to make such attendance impracticable the judge of that court may, unless he is satisfied that such attendance is essential in the interests of justice, disallow the notice and authorise the reading of the deposition of that witness at the trial of an accused.
5
The deposition of a dying person taken and purporting to be signed in accordance with Article 41 may be read at the court of trial if it is proved that—
a
the dying person has since died or is unable to travel or give evidence; and
b
reasonable notice of the intention to take the deposition was served upon the person (whether prosecution or defence) against whom it is proposed to be given in evidence and that the accused or his counsel or solicitor, or as the case may require, the prosecution had or might have had, if he or, as the case may be, the prosecution had chosen to be present, an opportunity of cross-examining the dying person making the deposition.