Justices Act 1886

If it appears to the court that a person has not complied with a direction given under section 83A(5)(aa), the court may order the person to file an affidavit, or give evidence in court, explaining and justifying the failure to comply.

If the court requires the person to file an affidavit, a copy of the affidavit must be served on the defendant.

An order under subsection (1) may be made—

on the court’s own initiative; or

on the application of the defendant.

If the court is not satisfied the person’s affidavit or evidence satisfactorily explains and justifies the noncompliance, the court may—

adjourn the proceeding to allow enough time for—

the person to comply with the disclosure direction; and

the defendant to consider anything disclosed under the disclosure direction and obtain any necessary further evidence; and

if the court is satisfied that the noncompliance was unjustified, unreasonable or deliberate—make, in relation to the adjournment, an award in favour of the defendant of an amount of costs the court considers just and reasonable; and

if an award of costs is made under paragraph (b)—fix a time for the amount to be paid.

This section does not limit the court’s power otherwise to deal with a failure to comply with a direction of any kind given under section 83A, including, for example, any power in the court to punish for contempt.

A person is not excused from failing to file an affidavit or give evidence under this section on the ground that an affidavit or evidence explaining and justifying a failure to comply with the direction given under section 83A(5)(aa) might tend to incriminate the person because the person would be required to admit to the failure to comply.

However, the affidavit or evidence is not admissible against the person in a criminal proceeding or a proceeding for contempt.

Subsection (7) does not stop the affidavit or evidence from being admissible against the person—

in a perjury proceeding in relation to the affidavit or evidence; or

for the purposes of making an order under subsection (4).

In this section—perjury proceeding, in relation to an affidavit or evidence, means a proceeding in which the falsity or misleading nature of the affidavit or evidence is relevant.