Document ID: chunk:federal_register_of_legislation:C2004A05071:schedule:3:p6
Version: federal_register_of_legislation:C2004A05071
Segment Type: schedule
Provision Reference: sch 3 (pt 6/27)
Character Range: 14022–16853

appear before the court and be heard on the merits of the application.

(3) In deciding whether to issue a certificate, the court must have regard to the following matters:

         (a) whether the foreign country is likely to grant such a request made by the Attorney-General on behalf of the defendant;

         (b) the extent to which the material (whether it is evidence, a document, an article or a thing) that the defendant seeks to obtain from the foreign country would not otherwise be available;

         (c) whether the court hearing the original proceeding would be likely to admit the material into evidence in the proceeding;

         (d) the likely probative value of the material, if it were admitted into evidence in the proceeding, with respect to any issue likely to be determined in the proceeding;

         (e) whether the defendant would be unfairly prejudiced if the material were not available to the court.

      (4) Subsection (3) does not prevent the court from having regard to any other matter that it considers relevant.

      (5) If the court issues a certificate:

(a) the court must send a copy of the certificate to the Attorney-General; and

         (b) the Attorney-General must, in accordance with the certificate, make a request on behalf of the defendant to the foreign country for international assistance unless he or she is of the opinion, having regard to the special circumstances of the case, that the request should not be made.

39B Certificate by Attorney-General if foreign country refuses request made under section 39A

      (1) If a foreign country refuses a request made under subsection 39A(5), the Attorney-General must give a certificate in writing to that effect.

(2) A certificate under subsection (1) is prima facie evidence of the facts stated in it.

Part 3—Refusal of assistance

38 At the end of paragraphs 8(1)(a), (b), (c), (d) and (e)

Add "or".

39 Paragraph 8(1)(f)

Omit "or" (last occurring).

40 Paragraph 8(1)(g)

Repeal the paragraph.

41 After subsection 8(1)

Insert:

      (1A) A request by a foreign country for assistance under this Act must be refused if it relates to the prosecution or punishment of a person charged with, or convicted of, an offence in respect of which the death penalty may be imposed in the foreign country, unless the Attorney-General is of the opinion, having regard to the special circumstances of the case, that the assistance requested should be granted.

      (1B) A request by a foreign country for assistance under this Act may be refused if the Attorney-General:

         (a) believes that the provision of the assistance may result in the death penalty being imposed on a person; and

         (b) after taking into consideration the interests of international criminal co-operation, is of the opinion that