Mutual Assistance in Criminal Matters Act
2008 Revised Edition
CAP. 7.40
MUTUAL ASSISTANCE IN CRIMINAL
MATTERS ACT
Mutual Assistance in Criminal Matters Act CAP. 7.40 Arrangement of Sections
2008 Revised Edition
Page 3
MUTUAL ASSISTANCE IN CRIMINAL MATTERS
ACT
Arrangement of Sections
Section
PART 1 - PRELIMINARY 7
1 Short title................................................................................................................ 7
2 Commencement ..................................................................................................... 7
3 Objects of Act ........................................................................................................ 7
4 Application............................................................................................................. 8
5 Definitions ............................................................................................................. 8
6 Act not to limit other provision of assistance ...................................................... 10
PART 2 - REQUESTS FOR ASSISTANCE GENERALLY 10
7 Requests by Tuvalu for assistance generally ....................................................... 10
8 Request by foreign countries for assistance generally ......................................... 10
9 Assistance may be provided subject to conditions............................................... 11
10 Refusal of assistance generally ............................................................................ 11
11 Refusal of assistance - death penalty ................................................................... 13
12 Refusal of assistance - Attorney-General’s discretion......................................... 13
PART 3 - ASSISTANCE WITH TAKING EVIDENCE AND
PRODUCTION OF DOCUMENTS OR OTHER ARTICLES 14
13 Requests by Tuvalu for assistance with evidence................................................ 14
14 Requests by foreign countries for assistance with evidence ................................ 14
15 Taking evidence................................................................................................... 15
16 Production............................................................................................................ 15
17 Conduct of proceedings ....................................................................................... 15
18 Exceptions to compulsion .................................................................................... 16
19 Foreign law immunity certificates ....................................................................... 16
Arrangement of Sections CAP. 7.40 Mutual Assistance in Criminal Matters Act
2008 Revised Edition Page 4
PART 4 - ASSISTANCE FOR SEARCH AND SEIZURE 16
20 Requests by Tuvalu for search and seizure ..........................................................16
21 Requests by foreign countries for search and seizure ..........................................17
22 Search warrants ....................................................................................................18
23 Custody of things seized ......................................................................................18
PART 5 - ARRANGEMENTS FOR PERSONS TO GIVE EVIDENCE
OR ASSIST INVESTIGATIONS 18
DIVISION 1 - REQUESTS BY TUVALU 18
24 Requests for removal of certain persons to Tuvalu ..............................................18
25 Custody of certain persons ...................................................................................19
26 Immunities............................................................................................................19
27 Status of person prosecuted for offence committed after leaving foreign
country..................................................................................................................20
28 Limitation on use of evidence given by certain persons ......................................21
29 Conditions of imprisonment.................................................................................21
30 Release of certain persons on request by foreign country....................................21
31 Arrest of person who has escaped from custody ..................................................22
DIVISION 2 - REQUESTS BY FOREIGN COUNTRIES 22
32 Requests for certain persons to give evidence or assistance in foreign
countries ...............................................................................................................22
33 Travel of prisoner or person .................................................................................23
34 Undertakings to be given......................................................................................23
35 Effect of removal to foreign country on prisoner's term of imprisonment...........24
PART 6 - CUSTODY OF PERSONS IN TRANSIT 25
36 Application of Part 6 ............................................................................................25
37 Transit ..................................................................................................................25
38 Arrest of person in transit.....................................................................................25
PART 7 - ASSISTANCE REGARDING PROCEEDS OF CRIME 26
DIVISION 1 - REQUESTS BY TUVALU 26
39 Requests for enforcement of orders......................................................................26
40 Requests for issue of orders in foreign countries .................................................26
DIVISION 2 - REQUESTS BY FOREIGN COUNTRIES 26
41 Requests for enforcement of orders......................................................................26
42 Registration of foreign orders ..............................................................................27
43 How a foreign order is registered .........................................................................27
44 Effect of registration.............................................................................................27
45 Amendment of foreign orders ..............................................................................28
46 Cancellation of registration ..................................................................................28
Mutual Assistance in Criminal Matters Act CAP. 7.40 Arrangement of Sections
2008 Revised Edition
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47 Requests for search and seizure warrants for tainted property ............................ 28
48 Requests for restraining orders ............................................................................ 28
49 Requests for information gathering orders........................................................... 29
PART 8 - REQUESTS BY OR FOR A DEFENDANT 29
50 Requests by Attorney-General for a defendant.................................................... 29
51 Certificate by Attorney-General if foreign country refuses request made
under section 50 ................................................................................................... 30
PART 9 - ADMISSIBILITY OF FOREIGN EVIDENCE 31
52 Application of Part 9............................................................................................ 31
53 Definitions for Part 9 ........................................................................................... 31
54 Requirements for testimony................................................................................. 32
55 Form of testimony................................................................................................ 32
56 Foreign material may be adduced as evidence..................................................... 32
57 Direction to prevent foreign material being adduced........................................... 33
58 Certificates relating to foreign material ............................................................... 33
59 Effect of Part on right to examine witnesses........................................................ 33
60 Operation of other laws........................................................................................ 34
PART 10 - MISCELLANEOUS 34
61 Aiding person to escape etc. ................................................................................ 34
62 Authentication of documents ............................................................................... 35
63 Restriction on use of information etc................................................................... 35
64 Requests for international assistance not to be disclosed .................................... 36
65 Regulations .......................................................................................................... 36
Supporting Documents
ENDNOTES 37
Mutual Assistance in Criminal Matters Act CAP. 7.40 Section 1
2008 Revised Edition
Page 7
MUTUAL ASSISTANCE IN CRIMINAL MATTERS
ACT
AN ACT TO MAKE PROVISION FOR MUTUAL ASSISTANCE IN
CRIMINAL MATTERS1
Commencement [7 May 2004]2
PART 1 - PRELIMINARY
1 Short title
This Act is the Mutual Assistance in Criminal Matters Act.
2 Commencement
This Act commences on the date fixed by notice by the Minister.
3 Objects of Act
The objects of this Act are:
(a) to regulate the provision by Tuvalu of international assistance in
criminal matters when a request is made by a foreign country for any of
the following:
(i) the taking of evidence, or the production of a document or other
article, for a proceeding in the foreign country;
(ii) the issue of a search warrant and seizure of any thing relevant to
a proceeding or investigation in the foreign country;
(iii) the forfeiture or confiscation of property for the commission of a
serious offence against the law of the foreign country;
Section 4 CAP. 7.40 Mutual Assistance in Criminal Matters Act
2008 Revised Edition Page 8
(iv) the restraining of dealings in property that may be forfeited or
confiscated because of the commission of a serious offence
against the law of the foreign country; and
(b) to facilitate Tuvalu providing international assistance in criminal
matters when a request is made by a foreign country to make
arrangements for a person who is in Tuvalu to travel to the
foreign country:
(i) to give evidence in a proceeding; or
(ii) to give assistance for an investigation; and
(c) to facilitate Tuvalu obtaining similar international assistance in criminal
matters.
4 Application
This Act applies for all foreign countries.
5 Definitions
In this Act, unless the context otherwise requires:
“authorised officer”, for a provision of this Act, means a person, or a person
in a class of persons, designated in writing as an authorised person for the
provision;
“Court” means the High Court of Tuvalu;
“criminal matter” includes a matter (whether arising under Tuvalu law or a
law of another country) relating to:
(a) the forfeiture or confiscation of property for an offence; or
(b) the restraining of dealings in property that may be forfeited or
confiscated for an offence;
“document” has the same meaning as in the Proceeds of Crime Act;3
“facsimile copy” means a copy obtained or sent by facsimile transmission;
“foreign forfeiture order” means an order, made under the law of a foreign
country, for the forfeiture of property because of an offence against the law of
that country;
“foreign law immunity certificate” means a certificate given, or a
declaration made:
(a) by a foreign country or under a law of a foreign country; and
(b) stating that, under the law of the foreign country, persons generally or a
specified person could or could not, either generally or in specified
proceedings or circumstances, be required:
Mutual Assistance in Criminal Matters Act CAP. 7.40 Section 5
2008 Revised Edition
Page 9
(i) to answer a specified question; or
(ii) to produce a specified document or other article;
“foreign pecuniary penalty order” means an order made under the law of a
foreign country for a person to pay to the foreign country an amount
representing the value (or part of the value) of what the person gained from an
offence against the law of that country;
“foreign prisoner” means a person who is being held in custody pending trial
or sentence for, or is under a sentence of imprisonment for, an offence against
a law of a foreign country, but does not include a person who is at large after
having escaped from lawful custody;
“foreign restraining order” means an order made under the law of a foreign
country, about an offence against the law of that country, restraining a
particular person, or all persons, from dealing with property;
“forfeiture order” has the same meaning as in the Proceeds of Crime Act;
“pecuniary penalty order” has the same meaning as in the Proceeds of
Crime Act;
“prison” includes a gaol, lock-up or other place of detention;
“prisoner” means a person who is being held in custody pending trial or
sentence, or is under a sentence of imprisonment, for an offence against a law
of Tuvalu, but does not include a person who is at large, having escaped from
lawful custody;
“proceedings” has the same meaning as in the Proceeds of Crime Act;
“proceeds” has the same meaning as in the Proceeds of Crime Act;
“Proceeds of Crime Act” means the Proceeds of Crime Act 2002;4
“property” has the same meaning as in the Proceeds of Crime Act;
“property-tracking document” has the same meaning as in the Proceeds of
Crime Act;
“requesting country”, for a request for assistance, means the country that
makes the request;
“restraining order” has the same meaning as in the Proceeds of Crime Act;
“serious offence” has the same meaning as in the Proceeds of Crime Act;
“tainted property” has the same meaning as in the Proceeds of Crime Act;
“trial”, for an offence in a foreign country, includes a proceeding to
determine whether a person should be convicted of the offence;
“video or internet link” means a system, including an internet connection,
that lets persons assembled in a place see, hear and talk to persons assembled
in another place.
Section 6 CAP. 7.40 Mutual Assistance in Criminal Matters Act
2008 Revised Edition Page 10
6 Act not to limit other provision of assistance
This Act does not limit the provision or obtaining of international assistance in
criminal matters other than assistance of a kind that may be provided or obtained
under this Act.
PART 2 - REQUESTS FOR ASSISTANCE GENERALLY
7 Requests by Tuvalu for assistance generally
A request for international assistance in a criminal matter that Tuvalu is authorised
to make under this Act may be made only by the Attorney-General.
8 Request by foreign countries for assistance generally
(1) A request under this Act by a foreign country for international assistance in a
criminal matter must be made to the Attorney-General or a person authorised
by the Attorney-General to receive requests by foreign countries under this
Act.
(2) A request must be in writing and must include the following information:
(a) the name of the authority concerned with the criminal matter to which
the request relates;
(b) a description of the nature of the criminal matter and a statement setting
out a summary of the relevant facts and laws;
(c) a description of the purpose of the request and of the nature of the
assistance being sought;
(d) any information that may assist in giving effect to the request.
(3) Failure to comply with subsection (2) is not a ground for refusing the request,
but the Attorney-General is not obliged to consider the request until the
subsection is complied with.
(4) If a foreign country makes a request to a person authorised under subsection
(1), the request is taken, for this Act, to have been made to the Attorney-
General.
(5) If a foreign country makes a request to the Court for international assistance
in a criminal matter:
(a) the Court must refer the request to the Attorney-General; and
(b) the request is then taken, for this Act, to have been made to the
Attorney-General.
Mutual Assistance in Criminal Matters Act CAP. 7.40 Section 9
2008 Revised Edition
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9 Assistance may be provided subject to conditions
Assistance under this Act may be provided to a foreign country subject to any
conditions that the Attorney-General determines.
10 Refusal of assistance generally
(1) A request by a foreign country for assistance under this Act must be refused
if, in the opinion of the Attorney-General:
(a) the request relates to an investigation of, or a proceeding for, a political
offence; or
(b) there are substantial grounds for believing that the request has been
made with a view to prosecuting or punishing a person for a political
offence; or
(c) there are substantial grounds for believing that the request was made for
the purpose of prosecuting, punishing or otherwise causing prejudice to
a person on account of the person’s race, sex, religion, nationality or
political opinions; or
(d) providing the assistance would prejudice the sovereignty, security or
national interest of Tuvalu; or
(e) the request relates to an investigation of, or proceeding for, an offence
for which the person concerned has been acquitted or pardoned by a
competent tribunal or authority in the foreign country or has undergone
the punishment provided by the law of that country.
(2) In this section:
“political offence”, for a country, means an offence against the law of the
country that is of a political character:
(a) because of the circumstances in which it is committed or for any other
reason; and
(b) whether or not there are competing political parties in the country.
(3) However, none of the following is a political offence:
(a) an offence that is constituted by conduct of a kind referred to in:
(i) Article 1 of the Convention for the Suppression of Unlawful
Seizure of Aircraft, done at The Hague on 16 December 1970; or
(ii) Article 1 of the Convention for the Suppression of Unlawful Acts
against the Safety of Civil Aviation, done at Montreal on 23
September 1971; or
(iii) paragraph 1 of Article 2 of the Convention on the Protection and
Punishment of Crimes against Internationally Protected Persons,
opened for signature at New York on 14 December 1973; or
Section 10 CAP. 7.40 Mutual Assistance in Criminal Matters Act
2008 Revised Edition Page 12
(iv) Article III of the Convention on the Prevention and Punishment
of the Crime of Genocide, approved by the General Assembly of
the United Nations at Paris on 9 December 1948; or
(v) Article 1 of the International Convention against the Taking of
Hostages, being the convention of that title that was adopted by
the General Assembly of the United Nations on 17 December
1979; or
(vi) Article 1 of the Convention against Torture and other Cruel,
Inhuman or Degrading Treatment or Punishment, being the
convention of that title that was adopted by the General
Assembly of the United Nations on 10 December 1984; or
(vii) Article 3 of the Convention for the Suppression of Unlawful Acts
Against the Safety of Maritime Navigation, done at Rome on 10
March 1988; or
(viii) Article 2 of the Protocol for the Suppression of Unlawful Acts
Against the Safety of Fixed Platforms Located on the Continental
Shelf, done at Rome on 10 March 1988; or
(ix) a prescribed provision of an international instrument;
(b) an offence:
(i) constituted by conduct that, by an extradition treaty (other than a
bilateral treaty) for the country or any country, is required to be
treated as an offence for which a person may be surrendered or
tried; and
(ii) declared by regulations for this paragraph not to be a political
offence for the country or all countries;
(c) an offence, declared by regulations for this paragraph not to be a
political offence for the country, against the head of state or head of
government of the country or a member of the family of either of those
persons, constituted by:
(i) murder, kidnapping or other attack on the person or the person’s
liberty; or
(ii) a threat or attempt to commit, or participation as an accomplice
in, a murder, kidnapping or other attack on the person or liberty;
(d) an offence constituted by taking or endangering, attempting to take or
endanger, or participating in the taking or endangering of, the life of a
person, being an offence:
(i) committed in circumstances in which such conduct creates a
collective danger, whether direct or indirect, to the lives of other
persons; and
(ii) declared by regulations for this paragraph not to be a political
offence for the country.
Mutual Assistance in Criminal Matters Act CAP. 7.40 Section 11
2008 Revised Edition
Page 13
11 Refusal of assistance - death penalty
(1) A request by a foreign country for assistance under this Act must be
refused if:
(a) it relates to an investigation of, or a proceeding for, an offence for
which the death penalty may be imposed in the foreign country; and
(b) the Attorney-General is not of the opinion, having regard to the special
circumstances of the case, that the assistance requested should be
granted.
(2) A request by a foreign country for assistance under this Act may be refused if
the Attorney-General is of the opinion that:
(a) 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 cooperation
in criminal law enforcement, in the circumstances of the case the
request should not be granted.
12 Refusal of assistance - Attorney-General’s discretion
A request by a foreign country for assistance under this Act may be refused if, in the
opinion of the Attorney-General:
(a) the request relates to the prosecution or punishment of a person for an
act or omission that would not have constituted an offence against
Tuvalu law if it had occurred in Tuvalu; or
(b) the request relates to the prosecution or punishment of a person:
(i) for an act or omission that occurred, or is alleged to have
occurred, outside the foreign country; and
(ii) if a similar act or omission occurring outside Tuvalu in similar
circumstances would not have constituted an offence against
Tuvalu law; or
(c) the request relates to the prosecution or punishment of a person for an
act or omission if the person responsible could no longer be prosecuted
because of lapse of time or any other reason if:
(i) it had occurred in Tuvalu at the same time; and
(ii) it had constituted an offence against Tuvalu law; or
(d) providing the assistance could prejudice an investigation or proceeding
for a criminal matter in Tuvalu; or
(e) the provision of the assistance would, or would be likely to, prejudice
the safety of any person (whether in or outside Tuvalu) ; or
(f) the provision of the assistance would result in manifest unfairness or a
denial of human rights; or
Section 13 CAP. 7.40 Mutual Assistance in Criminal Matters Act
2008 Revised Edition Page 14
(g) the provision of the assistance would impose an excessive burden on
the resources of the Crown; or
(h) it is appropriate, in all the circumstances of the case, that the assistance
requested should not be granted.
PART 3 - ASSISTANCE WITH TAKING EVIDENCE AND
PRODUCTION OF DOCUMENTS OR OTHER ARTICLES
13 Requests by Tuvalu for assistance with evidence
(1) The Attorney-General may request the appropriate authority of a foreign
country to arrange, for a proceeding or investigation in a criminal matter in
Tuvalu, for:
(a) evidence to be taken in the foreign country under the law of that
country; or
(b) a document or other article in the foreign country to be produced under
the law of that country.
(2) When making a request under subsection (1) , the Attorney-General may also
request that an opportunity be given for the person giving the evidence, or
producing the document or other article, to be examined or cross-examined,
through a video or internet link, from Tuvalu by:
(a) a party to the proceeding, or the party’s legal representative; or
(b) a person being investigated, or the person’s legal representative.
14 Requests by foreign countries for assistance with evidence
(1) If a foreign country asks that evidence be taken in Tuvalu for a proceeding or
investigation in a criminal matter in the requesting country or another foreign
country, the Attorney-General may authorise:
(a) the taking of the evidence; and
(b) the transmission of the evidence to the requesting country.
(2) If a foreign country asks that a document or other article in Tuvalu be
produced for a proceeding or investigation in a criminal matter in the
requesting country or another foreign country, the Attorney-General may
authorise:
(a) the production of the documents or articles; and
(b) their transmission to the requesting country.
Mutual Assistance in Criminal Matters Act CAP. 7.40 Section 15
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Page 15
15 Taking evidence
(1) If the Attorney-General authorises the taking of evidence under section 14, the
Court may take, on oath, the evidence of each witness in the matter, and the
Court that takes any such evidence must:
(a) cause the evidence to be put in writing and certify that the Court took
the evidence; and
(b) send the evidence and certificate to the Attorney-General.
(2) The certificate must state whether, when the evidence was taken, any of the
following persons were present:
(a) the person to whom the proceeding in the requesting country relates or
his or her legal representative (if any) ;
(b) any other person giving evidence or his or her legal representative (if
any) ;
(c) a legal representative of the requesting country.
16 Production
(1) If the Attorney-General authorises the production of a document under section
14, the Court:
(a) may order the document to be produced to the Court; and
(b) if it is produced, must send it, or a copy of it certified by the Court to be
a true copy, to the Attorney-General.
(2) If the Attorney-General authorises the production of an article (other than a
document) under section 14, the Court:
(a) may order it to be produced to the Court; and
(b) if it is produced, must send it to the Attorney-General.
17 Conduct of proceedings
(1) The Court conducting a proceeding under section 15 or 16 may permit any of
the following to have legal representation at the proceeding:
(a) the person to whom the proceeding in the requesting country relates;
and
(b) any other person giving evidence or producing a document or other
article at the proceeding before the Court; and
(c) the requesting country.
(2) The Court may take evidence or order production of a document or other
article in the presence or absence of the person to whom the proceeding in the
requesting country relates or of his or her legal representative (if any).
Section 18 CAP. 7.40 Mutual Assistance in Criminal Matters Act
2008 Revised Edition Page 16
(3) The Court may, at the request of the requesting country, permit examination
or cross-examination, through a video or internet link with the requesting
country, of any person giving evidence or producing a document or other
article at the proceeding.
(4) The examination or cross-examination may be conducted by:
(a) any person to whom the proceeding in the requesting country relates, or
that person’s legal representative; or
(b) the legal representative of the requesting country.
18 Exceptions to compulsion
(1) The laws of Tuvalu about:
(a) compelling a person to attend before a Judge; and
(b) giving evidence, answering questions and producing documents or
other articles,
on the hearing of a charge against a person for an offence against the law of
Tuvalu, apply, as far as they are capable of applying, to the compelling of a
person under this Part:
(c) to attend before a Judge; and
(d) to give evidence, answer questions and produce documents or other
articles.
(2) However, for this section, the person to whom the proceeding in the
requesting country relates:
(a) is competent, but not compellable, to give evidence; and
(b) is not compellable to answer a question or to produce a document or
article if the person would not be compellable to do so in the requesting
country or other foreign country to which the request relates.
19 Foreign law immunity certificates
A foreign law immunity certificate is admissible in proceedings under section 18 as
evidence of the matters stated in the certificate.
PART 4 - ASSISTANCE FOR SEARCH AND SEIZURE
20 Requests by Tuvalu for search and seizure
(1) This section applies if:
Mutual Assistance in Criminal Matters Act CAP. 7.40 Section 21
2008 Revised Edition
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(a) a proceeding or investigation for a criminal matter involving a serious
offence against the law of Tuvalu has commenced; and
(b) the Attorney-General believes, on reasonable grounds, that a thing
relevant to the proceeding or investigation may be located in a foreign
country.
(2) The Attorney-General may request the appropriate authority of the foreign
country to obtain a warrant or other instrument that, under the law of the
foreign country, authorises:
(a) a search for a thing relevant to the proceeding or investigation; and
(b) the seizure of the thing or any other thing that is or may be relevant to
the proceeding or investigation and is found as a result of the search.
(3) A thing may be admissible in evidence in the proceeding or used in the
investigation, despite having been obtained otherwise than in accordance with
the request, if it:
(a) is relevant to the proceeding or investigation; and
(b) has been obtained by the appropriate authority of the foreign country by
a process authorised by the law of that country other than the issue (as
requested by Tuvalu) of a warrant or other instrument authorising the
seizure of the thing.
21 Requests by foreign countries for search and seizure
(1) The Attorney-General may direct an authorised officer to apply to a
magistrate for a search warrant if:
(a) a proceeding for, or investigation of, a criminal matter involving a
serious offence has commenced in a foreign country; and
(b) the Attorney-General believes, on reasonable grounds, that a thing
relevant to the investigation or proceeding is located in Tuvalu; and
(c) the foreign country requests the Attorney-General to arrange for the
issue of a search warrant for that thing.
(2) The authorised officer must apply to a magistrate, or the Registrar of the
Court, for the issue of a warrant to search land or premises in the same way as
a police officer may apply for the issue of a search warrant under section 101
of the Criminal Procedure Code.5
(3) If an application is made under subsection (2) for a warrant, the magistrate or
Registrar may issue a warrant of that kind in the same way, and subject to the
same conditions, as he or she could issue a search warrant under section 101
of the Criminal Procedure Code, and, subject to this Division, the warrant
may be executed in the same way as if it had been issued under that section.
Section 22 CAP. 7.40 Mutual Assistance in Criminal Matters Act
2008 Revised Edition Page 18
22 Search warrants
(1) If an application is made under section 21 for a warrant for a thing relevant to
an investigation or proceeding in a foreign country, the magistrate may issue
the warrant authorising the authorised officer, with such assistance and by
such force as is necessary and reasonable:
(a) to enter the land or premises; and
(b) to search the land or premises for the thing and to seize it.
(2) If, in the course of searching under a warrant issued under this section for a
thing of a kind specified in the warrant, an authorised officer finds another
thing, the warrant is taken to authorise the authorised officer to seize the other
thing if the officer believes, on reasonable grounds, the other thing:
(a) to be relevant to the proceeding or investigation in the foreign country
or to provide evidence about the commission of a criminal offence in
Tuvalu; and
(b) to be likely to be concealed, lost or destroyed if it is not seized.
23 Custody of things seized
(1) If an authorised officer seizes a thing under a warrant issued under section 22,
the officer must give the thing to the Commissioner of Police.
(2) If a thing is given to the Commissioner of Police under subsection (1), the
Commissioner of Police must tell the Attorney-General that the thing has been
received and arrange for the thing to be kept in safe custody.
(3) The Attorney-General may give to the Commissioner of Police a direction in
writing (including a direction that the thing be sent to an authority of a foreign
country) about how the thing is to be dealt with.
PART 5 - ARRANGEMENTS FOR PERSONS TO GIVE
EVIDENCE OR ASSIST INVESTIGATIONS
DIVISION 1 - REQUESTS BY TUVALU
24 Requests for removal of certain persons to Tuvalu
(1) The Attorney-General may request a foreign country to authorise the
attendance at a hearing, for a proceeding that has commenced in Tuvalu, of a
person who is in the foreign country if:
(a) the proceeding relates to a criminal matter; and
(b) the Attorney-General is of the opinion that the person:
(i) is a foreign prisoner; and
Mutual Assistance in Criminal Matters Act CAP. 7.40 Section 25
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Page 19
(ii) is capable of giving evidence relevant to the proceeding; and
(iii) has consented to being removed to Tuvalu to give evidence in the
proceeding.
(2) The Attorney-General may request a foreign country to authorise the removal
of a person who is in the foreign country to Tuvalu to give assistance in an
investigation that has commenced in Tuvalu if:
(a) the investigation relates to a criminal matter; and
(b) the Attorney-General is of the opinion that the person:
(i) is a foreign prisoner; and
(ii) is capable of giving assistance in the investigation; and
(iii) has consented to being removed to Tuvalu to give assistance in
the investigation.
(3) If the Attorney-General makes a request under subsection (1) or (2), the
Attorney-General may arrange with an appropriate authority of the foreign
country for:
(a) the removal of the person to Tuvalu; and
(b) the custody of the person while in Tuvalu; and
(c) the return of the person to the foreign country; and
(d) other relevant matters.
25 Custody of certain persons
(1) This section applies:
(a) to a person who is to be brought to Tuvalu from a foreign country in
response to a request under section 24; and
(b) if the foreign country requests that the person be kept in custody while
he or she is in Tuvalu.
(2) The person must be kept in such custody as the Attorney-General directs in
writing while the person is in Tuvalu, or travelling to or from Tuvalu, under
the request.
26 Immunities
(1) This section applies to a person who is in Tuvalu:
(a) because of a request under section 24; or
(b) to give evidence in a proceeding, or to give assistance in an
investigation, because of a request made by or for the Attorney-General
(except a request under section 24) for international assistance in a
criminal matter.
Section 27 CAP. 7.40 Mutual Assistance in Criminal Matters Act
2008 Revised Edition Page 20
(2) The person must not:
(a) be detained, prosecuted or punished in Tuvalu for any offence
committed, or alleged to have been committed, before he or she left the
foreign country in response to the request; or
(b) be subjected to any civil suit (to which the person could not be
subjected if the person were not in Tuvalu) for an act or omission of the
person that occurred, or is alleged to have occurred, before he or she
left the foreign country in response to the request; or
(c) be required to give evidence in any proceeding in Tuvalu other than any
proceeding to which the request relates; or
(d) be required, in any proceeding to which the request relates, to answer
any question that the person would not be required to answer in a
proceeding relating to a criminal matter in the foreign country; or
(e) be required, in any proceeding to which the request relates, to produce
any document or article that the person would not be required to
produce in a proceeding in the foreign country relating to a criminal
matter.
(3) A foreign law immunity certificate is admissible in proceedings as evidence
of the matters stated in the certificate.
(4) Subsection (2) ceases to apply to a person:
(a) when the person leaves Tuvalu; or
(b) if the person has had the opportunity of leaving Tuvalu and has
remained in Tuvalu otherwise than:
(i) for the purpose to which the request relates; or
(ii) to give evidence in a proceeding in Tuvalu certified by the
Attorney-General, in writing, to be a proceeding in which it is
desirable that the person give evidence; or
(iii) to give assistance in an investigation in Tuvalu certified by the
Attorney-General, in writing, to be an investigation in which it is
desirable that the person give assistance.
(5) A certificate given by the Attorney-General for subparagraph (4) (b) (ii) or
(iii) has effect from the day specified in it (which may be a day before the day
on which the certificate is given).
27 Status of person prosecuted for offence committed after leaving
foreign country
(1) This section applies:
(a) to a person who has come to Tuvalu in response to a request under
section 24; and
Mutual Assistance in Criminal Matters Act CAP. 7.40 Section 28
2008 Revised Edition
Page 21
(b) during any period when he or she remains in Tuvalu to be tried for a
criminal offence against the law of Tuvalu that he or she is alleged to
have committed after he or she left the foreign country.
(2) The person is taken, for this Act, to be in Tuvalu because of the request.
(3) Without limiting subsection (2) , the person must be kept in such custody as
the Attorney-General directs under section 25.
28 Limitation on use of evidence given by certain persons
(1) This section applies to a person who is in Tuvalu to give evidence in a
proceeding or assistance in an investigation:
(a) either:
(i) because of a request under section 24; or
(ii) because of a request (other than a request under that section)
made by the Attorney-General for international assistance in a
criminal matter; and
(b) if the person has given the evidence in the proceeding to which the
request related or in a proceeding certified by the Attorney-General, in
writing, to be a proceeding in which it is desirable that the person give
evidence.
(2) The evidence must not be admitted or otherwise used in a prosecution of the
person for an offence against Tuvalu law, other than for perjury in giving that
evidence.
(3) Anything the person says or does when giving the assistance is not to be
admitted or otherwise used in any prosecution of the person for an offence
against Tuvalu law.
29 Conditions of imprisonment
For a person who has been committed to prison in Tuvalu under a direction of the
Attorney-General under section 25, the laws of Tuvalu about the following matters
apply (as far as they are capable of applying):
(a) the conditions of imprisonment of persons imprisoned for offences
against the law of Tuvalu; and
(b) the treatment of the persons during imprisonment; and
(c) the transfer of the persons from prison to prison.
30 Release of certain persons on request by foreign country
The Attorney-General must direct that a person be released from custody if:
Section 31 CAP. 7.40 Mutual Assistance in Criminal Matters Act
2008 Revised Edition Page 22
(a) the person is being held in custody under a direction of the
Attorney-General under section 25; and
(b) the appropriate authority of the foreign country from which the person
has been brought requests the release of the person from custody.
31 Arrest of person who has escaped from custody
(1) Any police officer may arrest a person without warrant if the officer believes,
on reasonable grounds, that the person:
(a) has been brought to Tuvalu in response to a request under section 24;
and
(b) has escaped from lawful custody while in Tuvalu because of the
request.
(2) The police officer must take the person before a magistrate as soon as
practicable.
(3) If the magistrate is satisfied that the person has escaped from lawful custody,
the magistrate may issue a warrant authorising any police officer to return the
person to lawful custody.
DIVISION 2 - REQUESTS BY FOREIGN COUNTRIES
32 Requests for certain persons to give evidence or assistance in foreign
countries
This Division applies if:
(a) a proceeding or an investigation about a criminal matter has
commenced in a foreign country; and
(b) the foreign country requests the removal of a prisoner who is in Tuvalu
(whether or not in custody) to the foreign country to attend at the
proceeding or to assist in the investigation; and
(c) the Attorney-General believes, on reasonable grounds, that the prisoner
is capable of giving evidence relevant to the proceeding or assistance
relevant to the investigation; and
(d) the Attorney-General is satisfied that:
(i) the prisoner has consented to giving evidence or assistance in the
foreign country; and
(ii) the foreign country has given adequate (whether or not
unqualified) undertakings about the matters mentioned in section
34.
Mutual Assistance in Criminal Matters Act CAP. 7.40 Section 33
2008 Revised Edition
Page 23
33 Travel of prisoner or person
(1) If the prisoner is being held in custody, the Attorney-General may:
(a) direct that the prisoner be released from prison to travel to the foreign
country to give evidence at the proceeding or assistance in the
investigation; and
(b) subject to the making or giving of any necessary directions or approvals
for the release of the prisoner — arrange for the prisoner to travel to the
foreign country in the custody of a police or prison officer appointed by
the Attorney-General for the purpose.
(2) If the prisoner has been released from custody on a parole or other order or
licence to be at large, the Attorney-General may:
(a) approve the travel of the prisoner to the foreign country to give
evidence or assistance and obtain any necessary approvals, authorities,
permissions or variations to the order or licence; and
(b) subject to obtaining the approvals, authorities, permissions or
variations, arrange for the prisoner to travel to the foreign country.
(3) The Attorney-General may arrange for a person (other than a prisoner) who is
in Tuvalu to travel to a foreign country if:
(a) a proceeding or an investigation about a criminal matter has
commenced in the foreign country; and
(b) the foreign country requests that the person travel to the foreign country
to give evidence at the proceeding or assistance at the investigation; and
(c) the Attorney-General believes, on reasonable grounds, that the person is
capable of giving evidence relevant to the proceeding or assistance
relevant to the investigation; and
(d) the Attorney-General is satisfied that:
(i) the person has consented to travel to the foreign country to give
evidence or assistance; and
(ii) the foreign country has given adequate (whether or not
unqualified) undertakings about the matters mentioned in section
34.
34 Undertakings to be given
(1) For subparagraph 32 (d) (ii) and subparagraph 33 (3) (d) (ii), this section sets
out the matters about which undertakings are to be given.
(2) The person will not:
(a) be detained, prosecuted or punished for an offence against the law of
the foreign country committed, or alleged to have been committed,
before the person’s departure from Tuvalu; or
Section 35 CAP. 7.40 Mutual Assistance in Criminal Matters Act
2008 Revised Edition Page 24
(b) be subjected to civil suit (to which the person could not be subjected if
the person were not in the foreign country) for an act or omission of the
person that occurred, or is alleged to have occurred, before the person’s
departure from Tuvalu; or
(c) be required to give evidence in a proceeding in the foreign country
other than:
(i) the proceeding to which the request relates; or
(ii) a proceeding for an offence that the person is alleged to have
committed after the person’s departure from Tuvalu.
(3) Subsection (2) does not apply if:
(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 for a purpose other than giving evidence in
the proceeding to which the request relates.
(4) Evidence given by the person in the proceeding to which the request relates
will be inadmissible or otherwise disqualified from use in the prosecution of
the person for an offence against a law of the foreign country other than for
perjury in giving that evidence.
(5) The person will be returned to Tuvalu under arrangements agreed in writing
by the Attorney-General.
(6) If the person is being held in custody in Tuvalu and the Attorney-General
requests the foreign country to make arrangements to keep the person in
custody while the person is in the foreign country:
(a) appropriate arrangements will be made for that purpose; and
(b) the person will not be released from custody in the foreign country
unless the Attorney-General gives written notice to an appropriate
authority of the foreign country that the person is entitled to be released
from custody under Tuvalu law; and
(c) if the person is released in the foreign country after notice by the
Attorney-General under paragraph (b) , the foreign country will pay for
the person’s accommodation and expenses pending the completion of
the investigation or proceeding to which the request relates.
(7) The Attorney-General may require undertakings about any other matters that
he or she thinks appropriate.
35 Effect of removal to foreign country on prisoner's term of
imprisonment
(1) This section applies to a prisoner who:
(a) is serving a term of imprisonment for an offence against a law of
Tuvalu; and
Mutual Assistance in Criminal Matters Act CAP. 7.40 Section 36
2008 Revised Edition
Page 25
(b) is released from a prison because of a request by a foreign country
under section 32.
(2) The prisoner, while in custody because of the request (including custody
outside Tuvalu), is taken to be continuing to serve the term of imprisonment.
PART 6 - CUSTODY OF PERSONS IN TRANSIT
36 Application of Part 6
This Part applies to a person who is to be taken in custody from a foreign country
through Tuvalu to another foreign country to give evidence in a proceeding or
assistance for an investigation in a criminal matter in the other foreign country.
37 Transit
(1) The foreign country in whose custody the person is to be taken must give to
the Attorney-General written notice at least 14 days (or a lesser time allowed
by the Attorney-General) before undertaking the journey.
(2) The foreign country:
(a) may take the person through Tuvalu in the custody of persons
mentioned in the notice or directed by the Attorney-General; and
(b) must, while in Tuvalu, keep the person in custody under conditions
directed in writing by the Attorney-General.
(3) If the person’s journey is not, in the opinion of the Attorney-General,
continued within a reasonable time, the Attorney-General may direct in
writing that the foreign country take the person in custody to the foreign
country from which the person was first taken.
(4) If the foreign country does not comply with a direction under subsection (2)
or (3):
(a) the Attorney-General may direct authorised officers to carry out the
direction; and
(b) the cost of carrying out the direction is a debt owed to the Crown.
38 Arrest of person in transit
(1) A police officer may arrest the person without warrant if the police officer
believes, on reasonable grounds, that the person was being kept in custody
under a direction under paragraph 37(2)(b) and has escaped from that custody.
(2) The police officer must take the person before a magistrate as soon as
practicable.
Section 39 CAP. 7.40 Mutual Assistance in Criminal Matters Act
2008 Revised Edition Page 26
(3) If the magistrate is satisfied that the person has escaped from lawful custody,
the magistrate may order any police officer to return the person to lawful
custody.
PART 7 - ASSISTANCE REGARDING PROCEEDS OF CRIME
DIVISION 1 - REQUESTS BY TUVALU
39 Requests for enforcement of orders
(1) The Attorney-General may request an appropriate authority of a foreign
country to make arrangements for the enforcement of:
(a) a forfeiture order made in Tuvalu against property that is believed to be
located in the foreign country; or
(b) a pecuniary penalty order made in Tuvalu, if some or all of the property
available to satisfy the order is believed to be located in the foreign
country; or
(c) a restraining order made in Tuvalu against property that is believed to
be located in that foreign country.
(2) The Attorney-General may enter an arrangement with the foreign country to
share with the country the property forfeited under the order mentioned in
paragraph (1)(a) or paid under the order mentioned in paragraph (1)(b).
40 Requests for issue of orders in foreign countries
If a proceeding or investigation has commenced in Tuvalu for a serious offence, the
Attorney-General may ask an appropriate authority of a foreign country for the
issue, in relation to the offence, of an instrument similar in nature to any of the
following instruments under the Proceeds of Crime Act:
(a) a search warrant for tainted property;
(b) a restraining order;
(c) a production order for a property-tracking document;
(d) a search warrant for a property-tracking document.
DIVISION 2 - REQUESTS BY FOREIGN COUNTRIES
41 Requests for enforcement of orders
(1) Subsection (2) applies if:
(a) a foreign country requests the Attorney-General to make arrangements
for the enforcement of:
Mutual Assistance in Criminal Matters Act CAP. 7.40 Section 42
2008 Revised Edition
Page 27
(i) a foreign forfeiture order against property that is believed to be
located in Tuvalu; or
(ii) a foreign pecuniary penalty order if some or all of the property
available to satisfy the order is believed to be located in Tuvalu;
and
(b) the Attorney-General is satisfied that:
(i) a person has been convicted of the offence; and
(ii) the conviction and the order are not subject to further appeal in
the foreign country.
(2) The Attorney-General may apply for the registration of the order in the Court.
(3) If a foreign country requests the Attorney-General to make arrangements for
the enforcement of a foreign restraining order against property that is believed
to be located in Tuvalu, the Attorney-General may apply for the registration
of the order in the Court.
42 Registration of foreign orders
If the Attorney-General applies to the Court for registration of a foreign order in
accordance with an authorisation under section 41, the Court must register the order
accordingly.
43 How a foreign order is registered
(1) A foreign order or an amendment of a foreign order may be registered in the
Court by registering a copy of:
(a) the appropriate order or amendment sealed by the Court or other
authority that made the order or amendment; or
(b) the order or amendment authenticated under subsection 62 (2).
(2) A facsimile copy of a sealed or authenticated copy of an order or an
amendment of an order is to be treated as if it were a sealed or authenticated
copy.
(3) However, registration effected by facsimile copy ceases to have effect at the
end of 21 days unless a sealed or authenticated copy of the order has been
registered by then.
44 Effect of registration
(1) A foreign forfeiture order registered in the Court under section 42 has effect,
and may be enforced, as if it were a forfeiture order made by the Court under
the Proceeds of Crime Act at the time of registration.
Section 45 CAP. 7.40 Mutual Assistance in Criminal Matters Act
2008 Revised Edition Page 28
(2) A foreign pecuniary penalty order registered in the Court under section 42 has
effect, and may be enforced, as if it were a pecuniary penalty order made by
the Court under the Proceeds of Crime Act at the time of registration and
requiring the payment to the Crown of the amount payable under the order.
(3) The Attorney-General may enter an arrangement with a foreign country to
share with that country the property or amount forfeited or paid under a
foreign forfeiture order or a foreign pecuniary penalty order.
(4) A foreign restraining order registered in the Court under section 42 has effect,
and may be enforced, as if it were a restraining order made by the Court under
the Proceeds of Crime Act at the time of registration.
45 Amendment of foreign orders
If a foreign order is registered in the Court under section 42:
(a) a copy of any amendments to the order (whether before or after
registration) may be registered in the same way as the order; and
(b) for this Act and the Proceeds of Crime Act, the amendments do not
have effect until they are registered.
46 Cancellation of registration
(1) The Attorney-General may apply to the Court for cancellation of the
registration of a foreign order.
(2) If the Attorney-General applies to the Court for cancellation of a registration
in accordance with a direction under subsection (1) , the Court must cancel
the registration accordingly.
47 Requests for search and seizure warrants for tainted property
The Attorney-General may direct an authorised officer to apply to a magistrate
under the Proceeds of Crime Act for a search warrant for property if:
(a) a proceeding or investigation has commenced in a foreign country for a
serious offence; and
(b) the Attorney-General believes, on reasonable grounds, that tainted
property in relation to the offence is located in Tuvalu; and
(c) the foreign country requests the Attorney-General to obtain the issue of
a search warrant for the property.
48 Requests for restraining orders
The Attorney-General may apply to the Court under the Proceeds of Crime Act for a
restraining order against property in connection with a serious offence if:
Mutual Assistance in Criminal Matters Act CAP. 7.40 Section 49
2008 Revised Edition
Page 29
(a) a proceeding has commenced, or the Attorney-General believes, on
reasonable grounds, that a proceeding is about to commence, in a
foreign country for the offence; and
(b) the Attorney-General believes on reasonable grounds that property that
may be made, or is about to be made, the subject of a foreign
restraining order is located in Tuvalu; and
(c) the foreign country requests the Attorney-General to obtain the issue of
a restraining order against the property.
49 Requests for information gathering orders
(1) Subsection (2) applies if:
(a) a proceeding or investigation has commenced in a foreign country for a
serious offence; and
(b) the Attorney-General believes on reasonable grounds that a property-
tracking document in relation to the offence is located in Tuvalu; and
(c) the foreign country requests the Attorney-General to obtain the issue of:
(i) an order requiring the documents to be produced or made
available for inspection under the law of Tuvalu; or
(ii) a search warrant in relation to the offence.
(2) To obtain the property-tracking document, the Attorney-General may direct
an authorised officer to apply to a magistrate under the Proceeds of Crime Act
for:
(a) a production order; or
(b) a search warrant.
PART 8 - REQUESTS BY OR FOR A DEFENDANT
50 Requests by Attorney-General for a defendant
(1) Subsection (2) applies if a defendant in a proceeding (the original
proceeding) in Tuvalu for a criminal matter thinks that it is necessary for the
proceeding that:
(a) evidence be taken in a foreign country; or
(b) a document or other article in a foreign country be produced; or
(c) a thing located in a foreign country be seized; or
(d) arrangements be made for a person who is in a foreign country to come
to Tuvalu to give evidence relevant to the proceeding.
Section 51 CAP. 7.40 Mutual Assistance in Criminal Matters Act
2008 Revised Edition Page 30
(2) 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 an appropriate request to
the foreign country under Part 3, 4 or 5 so that:
(a) the evidence may be taken; or
(b) the document or article may be produced; or
(c) the thing may be seized; or
(d) the arrangements may be made.
(3) Before making a decision on the application, the Court must give the
following persons an opportunity, to appear before the Court and be heard on
the merits of the application:
(a) all parties to the original proceeding;
(b) the Attorney-General.
(4) In deciding whether to issue a certificate, the Court must have regard to the
interests of justice generally and in particular to the following matters:
(a) whether the foreign country is likely to grant such a request by the
Attorney-General;
(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, for 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.
(5) Subsection (4) does not prevent the Court from having regard to any other
relevant matter.
(6) 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, request
the foreign country for international assistance.
51 Certificate by Attorney-General if foreign country refuses request made
under section 50
(1) If a foreign country refuses a request made under subsection 50(6), the
Attorney-General must give a certificate in writing to that effect.
Mutual Assistance in Criminal Matters Act CAP. 7.40 Section 52
2008 Revised Edition
Page 31
(2) A certificate under subsection (1) is evidence of the facts stated in it.
PART 9 - ADMISSIBILITY OF FOREIGN EVIDENCE
52 Application of Part 9
This Part applies to:
(a) a proceeding, before a Tuvalu court, that is:
(i) a criminal proceeding for an offence against the law of Tuvalu;
or
(ii) a related civil proceeding; and
(b) testimony obtained as a result of a request made by or for the Attorney-
General to a foreign country for the testimony of a person; and
(c) any exhibit annexed to the testimony.
53 Definitions for Part 9
In this Part:
“civil proceeding” means a proceeding other than a criminal proceeding.
“criminal proceeding” includes:
(a) a prosecution for an offence; and
(b) a proceeding for the committal of a person for trial for an offence; and
(c) a proceeding for the sentencing of a person convicted of an offence.
“foreign law” means a law (whether written or unwritten) of, or in force in, a
country other than Tuvalu.
“foreign material” means:
(a) the testimony of a person that:
(i) was obtained as a result of a request of a kind mentioned in
paragraph 52(b) ; and
(ii) complies with section 55; and
(b) any exhibit annexed to the testimony; and
(c) any part of the testimony or exhibit.
“related civil proceedings”, for a criminal proceeding, means a civil
proceeding arising from the same subject matter from which the criminal
proceeding arose.
“Tuvalu court” means:
(a) the High Court of Tuvalu; or
Section 54 CAP. 7.40 Mutual Assistance in Criminal Matters Act
2008 Revised Edition Page 32
(b) a judge or arbitrator acting under the law of Tuvalu; or
(c) a person or body authorised by the law of Tuvalu, or by consent of
parties, to hear, receive and examine evidence.
54 Requirements for testimony
(1) The testimony must be taken before the court of the foreign country:
(a) on oath or affirmation; or
(b) under such caution or admonition as would be accepted, by courts in
the foreign country concerned, for giving testimony in proceedings
before those courts.
(2) The testimony may be taken in closed court.
55 Form of testimony
(1) The testimony may be recorded in any of the following ways:
(a) in writing;
(b) on audio tape;
(c) on video tape.
(2) The testimony 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 must be endorsed with, or be accompanied by, a certificate to
the effect that:
(a) it is an accurate record of the evidence given; and
(b) it was taken in the manner required by section 54.
(4) The certificate must:
(a) purport to be signed or certified by a judge, magistrate or court officer
of the foreign country to which the request was made; and
(b) purport to bear an official or public seal of:
(i) the country; or
(ii) an authority of the country responsible for matters relating to
justice (that is, a Minister of State, a Ministry or Department of
Government, or an officer of the Government).
56 Foreign material may be adduced as evidence
Foreign material may be adduced as evidence in a proceeding to which this Part
applies unless:
Mutual Assistance in Criminal Matters Act CAP. 7.40 Section 57
2008 Revised Edition
Page 33
(a) at the hearing of the proceeding, it appears to the court’s satisfaction
that the person who gave the testimony concerned is present in Tuvalu
and is able to testify at the hearing; or
(b) the evidence would not have been admissible if it had been given by the
person at the hearing; or
(c) in the proceeding the court directs, under section 57, that the foreign
material must not be adduced as evidence.
57 Direction to prevent foreign material being adduced
(1) The court may direct that foreign material not be adduced as evidence if it
appears to the court’s satisfaction that the interests of justice would be better
served if the foreign material were not adduced as evidence.
(2) Without limiting the matters that the court may take into account in deciding
whether to give such a direction, it must take into account:
(a) the extent to which the foreign material provides evidence that would
not otherwise be available; and
(b) the probative value of the foreign material for any issue that is likely to
be determined in the proceedings; and
(c) the extent to which statements contained in the foreign material could,
at the time they were made, be challenged by questioning the persons
who made them; and
(d) whether exclusion of the foreign material would cause undue expense
or delay; and
(e) whether exclusion of the foreign material would prejudice:
(i) the prosecution or defence in criminal proceedings; or
(ii) a party to related civil proceedings.
58 Certificates relating to foreign material
(1) The Attorney-General may certify that specified foreign material was
obtained as a result of a request made to a foreign country by or for the
Attorney-General.
(2) It is presumed (unless evidence to the contrary is adduced sufficient to raise
reasonable doubt) that the foreign material specified in the certificate was
obtained as a result of that request.
59 Effect of Part on right to examine witnesses
(1) Nothing in this Part limits a right of the defendant in criminal proceedings to
which this Part applies to examine, in person or by his or her legal
Section 60 CAP. 7.40 Mutual Assistance in Criminal Matters Act
2008 Revised Edition Page 34
representative, a witness whose testimony is admitted in evidence in those
proceedings.
(2) If the defendant requests that the person who gave the testimony be present at
the hearing in Tuvalu to be cross-examined, the court must warn the
defendant that he or she may be ordered to pay any expenses incurred by the
Crown in making the person available before the court.
(3) The court may order the defendant to pay any expenses incurred by the Crown
in obtaining the attendance of a person as a witness if:
(a) as a result of the request, the person appears before the court as a
witness; and
(b) it appears to the court that the cross-examination of the person was
unnecessary, trivial or irrelevant to the matters in issue in the
proceedings.
(4) A certificate signed by the Attorney-General is evidence of the expenses
incurred by the Crown for subsection (3).
(5) An amount payable by a person to the Crown under an order under subsection
(3) is a civil debt due by the person to the Crown.
(6) An order against a person under subsection (3) may be enforced as if it were
an order made in civil proceedings instituted by the Crown against the person
to recover a debt due by the person to the Crown and the debt arising from the
order is taken to be a judgment debt.
60 Operation of other laws
This Part does not limit the ways in which a matter may be proved, or evidence may
be adduced, under any other law.
PART 10 - MISCELLANEOUS
61 Aiding person to escape etc.
The laws of Tuvalu about aiding a prisoner to escape from custody, rescuing a
prisoner from custody, permitting escape and harbouring a prisoner who has escaped
from custody apply to a person:
(a) who is in custody in Tuvalu because of a request to a foreign country
by Tuvalu under this Act; or
(b) to whom Part 6 of the Act applies.
Mutual Assistance in Criminal Matters Act CAP. 7.40 Section 62
2008 Revised Edition
Page 35
62 Authentication of documents
(1) In a proceeding under this Act or the Proceeds of Crime Act arising directly
or indirectly from a request made under this Act, any document that is
authenticated is admissible in evidence.
(2) A document is authenticated for subsection (1) if:
(a) it purports to be signed or certified by a judge, magistrate or judicial
officer in or of a foreign country; and
(b) it purports to be sealed with an official or public seal of the foreign
country or of a Minister of State, or of a Department or officer of the
Government, of the foreign country.
(3) Nothing in this section prevents the proof of any matter, or the admission in
evidence of any document, under any other law.
63 Restriction on use of information etc.
(1) A person must not, without the approval of the Attorney-General,
intentionally use requested material for a purpose other than that for which it
was requested.
(2) Requested material is inadmissible in evidence in any proceeding other than
the proceeding for which it was obtained unless the Attorney-General
approves its use for that other proceeding.
(3) A person must not intentionally use any information, document, article or
thing obtained directly or indirectly by making use of requested material in
breach of subsection (1) for a purpose other than that for which the requested
material was requested.
(4) The information, document, article or thing mentioned in subsection (3) is
inadmissible in evidence in any proceeding, and may not be used in any
investigation, other that for which the requested material was requested.
(5) A person who contravenes subsection (1) or (3) is guilty of an offence
punishable by:
(a) if the person is a natural person — a fine of $10,000 or imprisonment
for 2 years, or both; or
(b) if the person is a body corporate — a fine of $50,000.
(6) For this section, disclosure of any material is taken to be a use of that
material.
(7) In this section:
“requested material” means material (whether it is evidence, a document, an
article or a thing) that is sent to Tuvalu by a foreign country:
(a) because of a request made by the Attorney-General under this Act; and
Section 64 CAP. 7.40 Mutual Assistance in Criminal Matters Act
2008 Revised Edition Page 36
(b) for a proceeding or investigation in a criminal matter;
64 Requests for international assistance not to be disclosed
(1) Subsection (2) applies to a person who, because of his or her office or
employment, has knowledge of:
(a) the contents of a request for international assistance made by a foreign
country to Tuvalu under this Act; or
(b) the fact that such a request has been made; or
(c) the fact that such a request has been granted or refused.
(2) The person must not intentionally disclose those contents or that fact unless:
(a) it is necessary to do so in the performance of his or her duties; or
(b) the Attorney-General has given his or her approval to the disclosure of
those contents or that fact.
(3) A person who contravenes subsection (2) is guilty of an offence punishable
by:
(a) if the person is a natural person — a fine of $10,000 or imprisonment
for 2 years, or both; or
(b) if the person is a body corporate — a fine of $60,000.
65 Regulations
The Minister may make regulations, not inconsistent with this Act, prescribing
matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving
effect to this Act.
Mutual Assistance in Criminal Matters Act CAP. 7.40 ENDNOTES
2008 Revised Edition
Page 37
ENDNOTES
1 Act 1 of 2004
2 LN 4/2004
3 Cap. 10.25
4 Cap. 10.25
5 Cap. 10.05
