''Part IV-ARRANGEMENTS FOR PERSONS TO GIVE EVIDENCE OR ASSIST INVESTIGATIONS, Division 2 - Requests by foreign countries, 23. Requests for giving of evidence at hearings in foreign countries''
(1) Where-
(a) a proceedings relating to a criminal matter has commenced in a foreign country;
(b) the foreign country requests the attendance at a hearing in connection with the proceeding of a prisoner who is in Fiji (whether or not in custody);
(c) there are reasonable grounds to believe that the prisoner is capable of giving evidence relevant to the proceeding; and
(d) the Attorney-General is satisfied that-
(i) the prisoner has consented to giving evidence in the foreign country, and
(ii) the foreign country has given adequate (whether or not unqualified undertakings in respect of the matters referred to in subsection (3),
the Attorney-General may-
(A) where the prisoner is being held in custody, direct, in writing, that the prisoner be released from prison for the purpose of travelling to the foreign country to give evidence at the proceedings and, subject to the making or giving of any necessary directions or approvals in relation to the release of the prisoner, make arrangements for the travel of the prisoner to the foreign country in the custody of a police or prison officer appointed by the Attorney-General for the purpose; or
(B) in a case where the prisoner, having been released from custody on a parole or other order or licence to be at large, is not being held in custody, approve the travel of the prisoner to the foreign country to give evidence at the proceeding and obtain approvals, authorisation, permissions or variations to the parole or other order or licence to be at large as may be required and, subject to the obtaining of any necessary approvals, authorisation, permissions or variations of the parole or other order or licence to be at large, make arrangements for the travel of the prisoner to the foreign country in the custody of a police or prison officer appointed by the Attorney-General for the purpose.
(2) Where-
(a) a criminal proceedings has commenced in a foreign country;
(b) the foreign country requests the attendance at a hearing in connection with the proceedings of a person (not being a prisoner) who is in Fiji; and
(c) there are reasonable grounds to believe that the person is capable of giving evidence relevant to the proceedings; and
(d) the Attorney-General is satisfied that-
(i) the person has consented to giving evidence in the foreign country, and
(ii) the foreign country has given adequate (whether or not unqualified) undertakings in respect of the matters referred to in subsection (3),
the Attorney-General may make arrangements for the travel of the person to the foreign country.
(3) The matters in relation to which undertakings are to be given by a foreign country for the purpose of a request that a person give evidence in the foreign country are-
(a) that the person shall not-
(i) be detained, prosecuted or punished for any offence against the law of the foreign country that is alleged to have been committed, or that was committed, before the person's departure from Fiji;
(ii) be subjected to any civil suit in respect of any act or omission of the person that is alleged to have occurred, or that occurred, before the person's departure from Fiji, being a civil suit to which the person could not be subjected to if the person were not in the foreign country; or
(iii) be required to give evidence in any proceedings in the foreign country other than the proceedings to which the request relates, unless-
(A) the person has left the foreign country; or
(B) the person has had the opportunity of leaving the foreign country and has remained in that country otherwise than for the purpose of giving evidence in the proceedings to which the request relates;
(b) that any evidence given by the person in the proceedings to which the request relates is inadmissible or otherwise disqualified from use in the prosecution of the person for an offence against a law of the foreign country other than the offence of perjury in relation to the giving of that evidence;
(c) that the person shall be returned to Fiji in accordance with arrangements agreed by the Attorney-General;
(d) where the person is being held in custody in Fiji and the Attorney-General requests the foreign country to make arrangements for the keeping of the person in custody while the person is in the foreign country-
(i) the making of appropriate arrangements for that purpose;
(ii) that the person shall not be released from custody in the foreign country unless the Attorney-General notifies an appropriate authority of the foreign country that the person is entitled to be released from custody under Fiji law; and
(iii) if the person is released in the foreign country as mentioned in subparagraph (ii), that the person's accommodation and expenses pending the completion of the proceeding to which the request relates shall be paid for by the foreign country; and
(e) other matters as the Attorney-General thinks appropriate.
''Part VII-REQUESTS BY OR ON BEHALF OF A DEFENDANT 35. Requests by Attorney-General on behalf of a defendant''
(1) If a defendant in a proceedings (original proceedings) relating to a criminal matter thinks that it is necessary for the purposes of the proceedings that requests be made for-
(a) evidence to be taken in a foreign country;
(b) a document or other article in a foreign country to be produced;
(c) a thing located in a foreign country to be seized; or
(d) arrangements to be made for a person who is in a foreign country to come to Fiji (pursuant to a request to a foreign country by Fiji under this Act) to give evidence relevant to the criminal proceeding,
the defendant may apply to the Court for a certificate that it would be in the interests of justice for the Attorney-General to make the appropriate request to the foreign country under Part II, III or IV.
(2) Before making a decision on the application, the Court shall give an opportunity to any party to the original proceedings, and the Attorney-General to appear before the Court and be heard on the merits of the application.
(3) In deciding whether to issue a certificate, the Court shall have regard to the following matters-
(a) whether the foreign country is likely to grant a request made by the Attorney-General on behalf of the defendant;
(b) he 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 proceedings would be likely to admit the material into evidence in the proceedings;
(d) the likely probative value of the material, if it were admitted into evidence in the proceedings, with respect to any issue likely to be determined in the proceedings; or
(e) whether the defendant would be fairly prejudiced if the material were not available to the Court.
(4) Subsection (3) does not prevent the Court from taking any other matter into account that it considers relevant.
(5) If the Court issues a certificate-
(a) the Court shall send a copy of the certificate to the Attorney-General; and
(b) the Attorney-General shall, 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.
(a) The Court shall have the authority to make requests to States Parties for cooperation. The requests shall be transmitted through the diplomatic channel or any other appropriate channel as may be designated by each State Party upon ratification, acceptance, approval or accession. Subsequent changes to the designation shall be made by each State Party in accordance with the Rules of Procedure and Evidence.
(b) When appropriate, without prejudice to the provisions of subparagraph (a), requests may also be transmitted through the International Criminal Police Organization or any appropriate regional organization.
2. Requests for cooperation and any documents supporting the request shall either be in or be accompanied by a translation into an official language of the requested State or one of the working languages of the Court, in accordance with the choice made by that State upon ratification, acceptance, approval or accession. Subsequent changes to this choice shall be made in accordance with the Rules of Procedure and Evidence.
3. The requested State shall keep confidential a request for cooperation and any documents supporting the request, except to the extent that the disclosure is necessary for execution of the request.
4. In relation to any request for assistance presented under this Part, the Court may take such measures, including measures related to the protection of information, as may be necessary to ensure the safety or physical or psychological well-being of any victims, potential witnesses and their families. The Court may request that any information that is made available under this Part shall be provided and handled in a manner that protects the safety and physical or psychological well-being of any victims, potential witnesses and their families.
(a) The Court may invite any State not party to this Statute to provide assistance under this Part on the basis of an ad hoc arrangement, an agreement with such State or any other appropriate basis.
(b) Where a State not party to this Statute, which has entered into an ad hoc arrangement or an agreement with the Court, fails to cooperate with requests pursuant to any such arrangement or agreement, the Court may so inform the Assembly of States Parties or, where the Security Council referred the matter to the Court, the Security Council.
6. The Court may ask any intergovernmental organization to provide information or documents. The Court may also ask for other forms of cooperation and assistance which may be agreed upon with such an organization and which are in accordance with its competence or mandate.
7. Where a State Party fails to comply with a request to cooperate by the Court contrary to the provisions of this Statute, thereby preventing the Court from exercising its functions and powers under this Statute, the Court may make a finding to that effect and refer the matter to the Assembly of States Parties or, where the Security Council referred the matter to the Court, to the Security Council.