TONGA

FOREIGN EVIDENCE ACT 2000
No. 16 of 2000.

I assent,
TUPOUTO 'A,
17th November, 2000.

AN ACT
TO PROVIDE FOR THE MANNER AND FORM IN WHICH EVIDENCE OBTAINED FROM OUTSIDE THE KINGDOM OF TONGA MAY BE ADMISSIBLE IN PROCEEDINGS IN TONGA AND FOR RELATED PURPOSES

[17th November, 2000]

BE IT ENACTED by the King and Legislative Assembly of Tonga in the Legislature of the Kingdom as follows:-

Short Title

1. (1) This Act may be cited as the Foreign Evidence Act 2000.

Interpretation

2. In this Act, unless the context otherwise requires:-

"criminal proceeding" includes:

(a) a prosecution for an offence; and

(b) a proceeding for the sentencing of a person convicted of an offence;

"foreign material" means:

(a) the testimony of a person that:

(i) was obtained from a foreign State as a result of a request of a kind referred to in section 4 of the Mutual Assistance in Criminal Matters Act 2000; or

(ii) complies with the requirements of section 4 of this Act;

(b) any exhibit annexed to any such testimony;

(c) any part of any such testimony or exhibit;

"foreign State" means:

(a) any country other than Tonga; and

(b) every constituent part of such country, including a territory, dependency or protectorate, which administers its own laws;

"related civil proceeding", in relation to a criminal proceeding, means any civil proceeding arising from the same subject matter from which the criminal proceeding arose;

"Tongan court" means:

(a) the Court of Appeal;

(b) the Supreme Court:

(c) the Magistrate's Court; or

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

"Tongan law" means a law of or in force in Tonga.

Application of this Act

3. This Act applies to:

(a) foreign material that is adduced in evidence in a proceeding before a Tongan court that is:

(i) a criminal proceeding under Tongan law; or

(ii) a related civil proceeding;

(b) testimony obtained as a result of a request made by or on behalf of the Attorney General to a foreign State for the testimony of a person pursuant to the Mutual Assistance in Criminal Matters Act 2000; and

(c) any exhibit annexed to any such testimony.

Requirements for Testimony

4. (1) Any testimony taken. before a foreign court shall be:

(a) on oath or affirmation; or

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

(2) The testimony may be taken in camera.

Form of Testimony

5. (1) The testimony may be recorded:

(a) in writing;

(b) on audio tape;

(c) on video tape; or

(d) by any other electronic or mechanical means.

(2) The writing 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 shall be endorsed with or accompanied by a certificate to the effect that:

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

(b) it was taken in a manner specified in section 4.

(4) The certificate shall:

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

(b) bear an official or public seal of-

(i) the foreign State; or

(ii) an authority of the foreign State responsible for matters relating to justice, being a Minister of State, a Ministry or Department of Government, or an officer in or of the Government.

Foreign material may be adduced as Evidence

6. (1) Subject to sub-section (2), foreign material may be adduced as evidence in any criminal proceedings or related civil proceedings.

(2) The foreign material shall be inadmissible if:

(a) the court is satisfied that the person who gave the testimony concerned is present in Tonga and is able to testify at the hearing;

(b) the evidence would not have been admissible had it been adduced from the person at the hearing; or

(c) it appears to the court that the interests of justice would not be served by admitting the evidence.

(3) In reaching a decision pursuant to sub-section (2)(c), the court shall take into account:

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

(b) the probative value of the foreign material with respect to any issue that is likely to be determined in the proceeding;

(c) whether the maker of the statements could be cross-examined;

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

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

(i) the defence in a criminal proceeding; or

(ii) any party to a related civil proceeding.

Proof of Service of Documents Abroad

7. The service of a document in a foreign State may be proved by affidavit of the person who served it.

Certificates relating to Foreign Material

8. (1) The Attorney General or a person authorised by the Attorney General may certify that specified foreign material was obtained as a result of a request made to a foreign State by or on behalf of the Attorney General.

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

Operation of Other Tongan Laws

9. This Act does not limit the ways in which a matter may be proved or evidence may be adduced under any other Tongan law.

Passed by the Legislative Assembly this 5th day of August 2000.

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