New South Wales Consolidated Regulations

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Evidence on commission

31.6 Evidence on commission

(cf SCR Part 36, rule 6; DCR Part 28, rule 7)

(1) The court may permit a party to any proceedings the subject of an order under rule 24.3 (relating to the taking of evidence otherwise than at trial) to tender in the proceedings the evidence of a person examined under the order.
(2) The evidence is not admissible in the proceedings if--
(a) it appears to the satisfaction of the court that the person examined is in New South Wales and is able to attend the hearing, or
(b) the evidence would not have been admissible had it been given orally at the hearing of the proceedings.
(3) If it is in the interests of justice to do so, the court may exclude from the proceedings any evidence of the person examined even though the evidence is otherwise admissible.
(4) Unless the court orders otherwise, evidence in any proceedings that a case falls within--
(a) subrule (2)(a), or
(b) section 8(2)(a) or 22(2)(a) of the Evidence on Commission Act 1995 , or
(c) section 9(2)(a) of the Foreign Evidence Act 1994 of the Commonwealth,
may be given by affidavit on information and belief, but the person making the affidavit must give the source of and ground for the information and belief.
(5) The judicial officer presiding at the trial may make any necessary observations and findings as to demeanour and credibility of the person examined, and act on them for the determination of the issues at the trial, if--
(a) the examination has been conducted by the same judicial officer, or
(b) an audio-visual recording under rule 24.13 is tendered in evidence at the trial,
except where the trial is before a jury.
(6) In this rule,
"evidence" includes--
(a) any document or thing produced at the examination, and
(b) any answers made (whether in writing, or orally and reduced to writing) to any written interrogatories presented at the examination, and
(c) any audio-visual recording made in accordance with rule 24.13.

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