11. General powers of a court

11. General powers of a court

(1) The power of a court to control the conduct of a proceeding is not affected by this Act, except so far as this Act provides otherwise expressly or by necessary intendment.

(2) In particular, the powers of a court with respect to abuse of process in a proceeding are not affected.

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10. Parliamentary privilege preserved

10. Parliamentary privilege preserved

(1) This Act does not affect the law relating to the privileges of any Australian Parliament or any House of any Australian Parliament.

(2) In particular, section 15(2) does not affect, and is in addition to, the law relating to such privileges.

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9. Application of common law and equity

9. Application of common law and equity

(1) This Act does not affect the operation of a principle or rule of common law or equity in relation to evidence in a proceeding to which this Act applies, except so far as this Act provides otherwise expressly or by
necessary intendment.

(2) Without limiting subsection (1), this Act does not affect the operation of such a principle or rule so far as it relates to any of the following-

(a) admission or use of evidence of reasons for a decision of a member of a jury, or of the deliberations of a member of a jury in relation to such a decision, in a proceeding by way of appeal from a judgment, decree, order or sentence of a court;

(b) the operation of a legal or evidential presumption that is not inconsistent with this Act;

(c) a court's power to dispense with the operation of a rule of evidence or procedure in an interlocutory proceeding.

Note

This section differs from section 9 of the Commonwealth Act. That section preserves the written and unwritten laws of States and Territories in relation to various matters.

The phrase necessary intendment is a particular 'term of art' and will doubtless be the subject of much debate in the Victorian context.

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8. Operation of Acts

8. Operation of Acts

This Act does not affect the operation of the provisions of any other Act.

Note

The Commonwealth Act includes additional subsections relating to the operation of the Corporations Act 2001 of the Commonwealth, the Australian Securities and Investments Commission Act 2001 of the Commonwealth and certain laws in force in the Australian Capital Territory. It also provides for the regulations to have continued effect (until amended) after the commencement of the Commonwealth section.

This section limits s 4, which applies (with few exceptions) the provisions of this Act to court proceedings in Victoria.

By virtue of this provision, hearings conducted pursuant to specific legislation, such as the Bail Act 1977 and the Family Violence Act 2008, continue to apply the specific evidentiary provisions contained in those Acts.

The Criminal Procedure Act 2009 modifies a number of provisions of the UEA. See also s 52 regarding rules of law and practice relating to the introduction of evidence.

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7. Act binds Crown

7. Act binds Crown

This Act binds the Crown in right of Victoria and, in so far as the legislative power of Parliament permits, the Crown in all its other capacities.

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6. Territories

6. Territories


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Note

The Commonwealth Act includes a provision extending that Act to each external Territory.

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5. Extended application of certain provisions

5. Extended application of certain provisions


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Note

The Commonwealth Act includes a provision that extends the application of specified provisions of that Act to proceedings in all Australian courts.

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4. Courts and proceedings to which Act applies

4. Courts and proceedings to which Act applies

(1) This Act applies to all proceedings in a Victorian court, including proceedings that-

(a) relate to bail; or

(b) are interlocutory proceedings or proceedings of a similar kind; or

(c) are heard in chambers; or

(d) subject to subsection (2), relate to sentencing.

(2) If such a proceeding relates to sentencing-

(a) this Act applies only if the court directs that the law of evidence applies in the proceeding; and

(b) if the court specifies in the direction that the law of evidence applies only in relation to specified matters-the direction has effect accordingly.

(3) The court must make a direction if-

(a) a party to the proceeding applies for such a direction in relation to the proof of a fact; and

(b) in the court's opinion, the proceeding involves proof of that fact, and that fact is or will be significant in determining a sentence to be imposed in the proceeding.

(4) The court must make a direction if the court considers it appropriate to make such a direction in the interests of justice.

(5) In this section, a proceeding that relates to sentencing includes a proceeding for an order under Part 4 of the Sentencing Act 1991.

Notes

1. Section 4 of the Commonwealth Act differs from this section. It applies that Act to proceedings in a federal court or an Australian Capital Territory court. Some provisions of the Commonwealth Act extend beyond proceedings in federal courts and Australian Capital Territory courts (see sections 5, 185, 186 and 187 of the Commonwealth Act).

2. Victorian court is defined in the Dictionary. The definition includes persons or bodies required to apply the laws of evidence.

3. The Commonwealth Act includes 2 additional subsections that exclude the application of that Act to appeals from a court of a State (including appeals from a court of a State exercising federal jurisdiction) and certain other courts. 4. Provisions in other Victorian Acts which relieve courts from the obligation to apply the rules of evidence in certain proceedings are preserved by section 8 of this Act. These include-

• section 44 of the Accident Compensation Act 1985;
• section 215 of the Children, Youth and Families Act 2005;
• sections 8(6) and 13A of the Crimes (Family Violence) Act 1987;
• section 38 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997;
• section 127 of the Electoral Act 2002.

5. Subsection (5) is not included in the Commonwealth Act or New South Wales Act

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3A. Notes

3A. Notes

Notes do not form part of this Act.

Note

This section does not appear in the Commonwealth Act or New South Wales Act.

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3. Definitions

3. Definitions

(1) Expressions used in this Act (or in a particular provision of this Act)that are defined in the Dictionary at the end of this Act have the meanings given to them in the Dictionary.

(2) The Dictionary at the end of this Act forms part of this Act.

(3) * * * * *

Notes

1. Some expressions used in this Act are defined in the Interpretation of Legislation Act 1984 and have the meanings given to them in that Act.

2. Subsection (2) differs from the Commonwealth Act and New South Wales Act.

3. The Commonwealth Act and New South Wales Act include an additional subsection regarding definitions which are unnecessary in Victoria due to the Interpretation of Legislation Act 1984

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2. Commencement

2. Commencement

(1) This Part and the Dictionary at the end of this Act come into operation on the day after the day on which this Act receives the Royal Assent.

(2) Subject to subsection (3), the remaining provisions of this Act come into operation on a day or days to be proclaimed.

(3) If a provision of this Act does not come into operation before 1 January 2010, it comes into operation on that day.

The Evidence Act 1995 (NSW) commenced operation on the 1st September 1995. In the early days of its operation it was reportedly common for trial courts to exercise their discretions to ensure that rulings accorded with practices prior to the introduction of the Act.

The Evidence Act 2008 (Vic.) received Royal Assent on 15 September 2008. Procedural sections 1 - 3A and the Dictionary came into effect on 16 September 2008. The remaining Act came into effect on 1 January 2010. It applied to all hearings after it commencement (with the exception of those matters referred to in Schedule 2).

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1. Purpose

1. Purpose

The purpose of this Act is to make fresh provision for the law of evidence that is uniform with Commonwealth and New South Wales law.

Of course, while uniformity of legislation across the Australian jurisdictions is the ideal, there are differences (in some cases, significant ones) between the Evidence Act 1995 (Cth.), the Evidence Act 1995 (NSW), the Evidence Act 2001 (Tas) and the Evidence Act 2008 (Vic).

This is referred to in the preliminary paragraph to Chapter 1 of the Victorian act.

There has been debate over whether the UEA represents the codification of the existing law. In some places it replaces the existing common law in a way that reference to the previous law on the subject would be of little assistance. In other areas, it substantially enacts in legislation the existing common law on the subject (for example identification). The best view is probably that the UEA represents only a partial codification of the laws of evidence.

The High Court has warned against unwarranted efforts to try to interpret the UEA consistently with previous case law where the legislation appears intended to give rise to a quite different result. In a significant authority on the Evidence Act 1995 (NSW) the High Court said in Papakosmas v R (1999) 196 CLR 297:

Sections 135, 136 and 137 contain powers which are to be applied on a case by case basis because of considerations peculiar to the evidence in the particular case. It may be proper for appellate courts to develop guidelines for exercising the powers conferred by these sections so that certain classes of evidence are usually excluded or limited. But those sections confer no authority to emasculate provisions in the Act to make them conform with common law notions of relevance or admissibility. (McHugh J at 97, Gleeson CJ and Hayne, Gaudron and Kirby JJ agreeing on the general principle).

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