Transitional provisions

Unlike the Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009, which makes significant changes to the operation of both Evidence Act 2008 and Criminal Procedure Act 2009, the Statutue Law Amendment (Evidence Consequential Amendment) Act 2009 is more significant for what it took out than what it brought in.

The Evidence Act 1958 is now the Evidence Act (Miscellaneous Provisions Act) 1958. The procedures for giving evidence, privilege, the antiquated provisions relating to business documents etc. have all gone. In the Crimes Act, familiar provisions like s 398A and s 400 have gone.

Perhaps the most important thing to note about this transitional legislation is the insertion of Schedule 2 into the Evidence Act 2008. The effect of this Schedule is to preserve certain kinds of evidence collected prior to January 1 2010, so that it will be dealt with according to the law and rules applicable at the time of its collection.

Examples include identification evidence, documents, agreed facts, and the discretion to reject improperly or unlawfully collected evidence in accordance with s 139 of the Evidence Act.

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Schedule 2 - Part 1

Schedule 2

Transitional Provisions

Part 1 — General

1 Definitions

In this Schedule—

commencement day means the day this Act (other than Part 1 and the Dictionary) commences.

2 Application of this Act on commencement day

(1) Except as otherwise provided by this Schedule, this Act applies to any proceeding (within the operation of section 4) commenced on or after the commencement day.

(2) Except as otherwise provided by this Schedule, in the case of any proceeding (within the operation of section 4) that commenced before the commencement day, this Act applies to that part of the proceeding that takes place on or after the commencement day, other than any hearing in the proceeding that commenced before the commencement day and—

(a) continued on or after the commencement day; or

(b) was adjourned until the commencement day or a day after the commencement day.

3 Application of section 128A

Section 128A does not apply to an order made before the commencement day that would, if it were made after the commencement day, be a disclosure order within the meaning of that section.

4 Application of Part 3.10 to disclosure requirements

(1) Part 3.10 does not apply in respect of—

(a) a process or order of the court that requires the disclosure of information or a document issued or ordered before the commencement day that would, if it were issued or ordered after the commencement day, be a disclosure requirement within the meaning of section 131A; or

(b) a summons or subpoena issued on or after the commencement day to give evidence or produce documents at a hearing to which clause 2(2)(a) or (b) applies.

(2) Despite subclause (1)(a), Part 3.10 applies to a summons or subpoena to give evidence issued before the commencement day if the evidence is to be given at a hearing to which this Act applies.

5 Identifications already carried out

(1) Section 114 does not apply in relation to an identification made before the commencement day.

(2) Section 115 does not apply in relation to an identification made before the commencement day.

6 Documents and evidence produced before commencement day by processes, machines and other devices

(1) Section 146 has effect on and from the commencement day with respect to the production of a document or thing that occurred before the commencement day.

(2) Section 147 has effect on and from the commencement day with respect to the production of a document that occurred before the commencement day.

7 Documents attested and verified before the commencement day

(1) Section 148 has effect on and from the commencement day with respect to the attestation, verification, signing or acknowledgement of a document that occurred before the commencement day.

(2) Section 149 has effect on and from the commencement day with respect to the attestation or signing of a document that occurred before the commencement day.

8 Matters of official record published before the commencement day

(1) Section 153 has effect on and from the commencement day with respect to the publication of a document referred to in that section that occurred before the commencement day.

(2) Section 154 has effect on and from the commencement day with respect to the publication of a document referred to in that section that occurred before the commencement day.

(3) Section 155 has effect on and from the commencement day with respect to the signing and sealing or certification of a document referred to in that section that occurred before the commencement day.

(4) Section 156 has effect on and from the commencement day with respect to the sealing or certification of a document referred to in that section that occurred before the commencement day.

(5) Section 157 has effect on and from the commencement day with respect to the sealing or signing of a document referred to in that section that occurred before the commencement day.

(6) Section 158 has effect on and from the commencement day with respect to the sealing or signing and sealing of a public document referred to in that section that occurred before the commencement day.

(7) Section 159 has effect on and from the commencement day with respect to the publication of a document referred to in that section that occurred before the commencement day.

9 Agreed facts

The reference in section 191(3)(a) to an agreement is taken on and from the commencement day to include a reference to an agreement entered into before the commencement day under section 149AB(3) of the Evidence Act 1958, as in force immediately before its repeal.

10 Application of Act to improperly or illegally obtained evidence

Section 139 does not apply in relation to a statement made or an act done before the commencement day.

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Dictionary - Part 1 Definitions

Part 1 — Definitions

ACT court

Note

The Commonwealth Act includes a definition of this term.

admission means a previous representation that is—

(a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding); and

(b) adverse to the person's interest in the outcome of the proceeding;

asserted fact is defined in section 59;

associated defendant, in relation to a defendant in a criminal proceeding, means a person against whom a prosecution has been instituted, but not yet completed or terminated, for—

(a) an offence that arose in relation to the same events as those in relation to which the offence for which the defendant is being prosecuted arose; or

(b) an offence that relates to or is connected with the offence for which the defendant is being prosecuted;

Australia includes the external Territories;


Australian court means—

(a) the High Court; or
(b) a court exercising federal jurisdiction; or
(c) a court of a State or Territory; or
(d) a judge, justice or arbitrator under an Australian law; or
(e) a person or body authorised by an Australian law, or by consent of parties, to hear, receive and examine evidence; or
(f) a person or body that, in exercising a function under an Australian law, is required to apply the laws of evidence;

Australian law means a law of the Commonwealth, a State or a Territory;

Note

See clause 9 of Part 2 of this Dictionary for the meaning of law.
Australian lawyer has the meaning it has in the Legal Profession Act 2004;

Australian legal practitioner has the meaning it has in the Legal Profession Act 2004;

Australian or overseas proceeding means a proceeding (however described) in an Australian court or a foreign court;

Australian Parliament means the Parliament, the Parliament of the Commonwealth or another State or the Legislative Assembly of a Territory;

Australian practising certificate has the meaning it has in the Legal Profession Act 2004;

Australian-registered foreign lawyer has the meaning it has in the Legal Profession Act 2004;

Australian Statistician means the Australian Statistician referred to in section 5(2) of the Australian Bureau of Statistics Act 1975 of the Commonwealth, and includes any person to whom the powers of the Australian Statistician under section 12 of the Census and Statistics Act 1905 of the Commonwealth have been delegated;

business is defined in clause 1 of Part 2 of this Dictionary;

case of a party means the facts in issue in respect of which the party bears the legal burden of proof;

child means a child of any age and includes the meaning given in clause 10(1) of Part 2 of this Dictionary;

civil penalty is defined in clause 3 of Part 2 of this Dictionary;

civil proceeding means a proceeding other than a criminal proceeding;

client is defined in section 117;

coincidence evidence means evidence of a kind referred to in section 98(1) that a party seeks to have adduced for the purpose referred to in that subsection;

coincidence rule means section 98(1);

Commonwealth owned body corporate means a body corporate that, were the Commonwealth a body corporate, would, for the purposes of the Corporations Act 2001 of the Commonwealth, be—

(a) a wholly-owned subsidiary of the Commonwealth; or (b) a wholly-owned subsidiary of another body corporate that is, under this definition, a Commonwealth owned body corporate because of the application of paragraph (a) (including the application of that paragraph together with another application or other applications of this paragraph);

Commonwealth record means a record made by—

(a) a Department within the meaning of the Public Service Act 1999 of the Commonwealth; or

(b) the Parliament, a House of the Parliament, a committee of a House of the Parliament or a committee of the Parliament; or

(c) a person or body, other than a Legislative Assembly, holding office, or exercising power, under or because of the Commonwealth Constitution or a law of the Commonwealth; or

(d) a body or organisation other than a Legislative Assembly, whether incorporated or unincorporated, established for a public purpose—

(i) by or under a law of the Commonwealth or of a Territory (other than the Australian Capital Territory, the Northern Territory or Norfolk Island); or

(ii) by the Governor-General; or
(iii) by a Minister of the Commonwealth; or

(e) any other body or organisation that is a Commonwealth owned body corporate—

and kept or maintained by a person, body or organisation of a kind referred to in paragraph (a), (b), (c), (d) or (e), but does not include a record made by a person or body holding office, or exercising power, under or because of the Commonwealth Constitution or a law of the Commonwealth if the record was not made in connection with holding the office concerned, or exercising the power concerned;

confidential communication is defined in section 117;

confidential document is defined in section 117;

court means Victorian court;

Notes

1. Victorian court is defined in this Dictionary.

2. The Commonwealth Act does not include this definition.

credibility of a person who has made a representation that has been admitted in evidence means the credibility of the representation, and includes the person's ability to observe or remember facts and events about which the person made the representation;

credibility of a witness means the credibility of any part or all of the evidence of the witness, and includes the witness's ability to observe or remember facts and events about which the witness has given, is giving or is to give evidence;

credibility evidence is defined in section 101A;

credibility rule means section 102;

criminal proceeding means a prosecution for an offence and includes—

(a)a proceeding for the committal of a person for trial or sentence for an offence; a

(b)a proceeding relating to bail—

but does not include a prosecution for an offence that is a prescribed taxation offence within the meaning of Part III of the Taxation Administration Act 1953 of the Commonwealth;

cross-examination is defined in clause 2(2) of Part 2 of this Dictionary;

cross-examiner means a party who is cross-examining a witness;

de facto partner is defined in clause 11 of Part 2 of this Dictionary;

document means any record of information, and includes—

(a) anything on which there is writing; or
(b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; or
(c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else; or
(d) a map, plan, drawing or photograph;

Note

See also clause 8 of Part 2 of this Dictionary on the meaning of document.

electronic communication has the same meaning as it has in the Electronic Transactions (Victoria) Act 2000;

examination in chief is defined in clause 2(1) of Part 2 of this Dictionary;

exercise of a function includes performance of a duty;

fax, in relation to a document, means a copy of the document that has been reproduced by facsimile telegraphy;

Note

The Commonwealth Act includes a definition of this term.

foreign court means any court (including any person or body authorised to take or receive evidence, whether on behalf of a court or otherwise and whether or not the person or body is empowered to require the answering of questions or the production of documents) of a foreign country or a part of such a country;

function includes power, authority or duty;

government or official gazette includes the Government Gazette;

Note

The definition of this term in the Commonwealth Act and New South Wales Act differs from this definition.

Governor of a State includes any person for the time being administering the Government of the State;

Governor-General means Governor-General of the Commonwealth and includes any person for the time being administering the Government of the Commonwealth;

Note

The Commonwealth Act does not include definitions of Governor of a State and Governor-General. These definitions are covered by sections 16A and 16B of the Acts Interpretation Act 1901 of the Commonwealth.

hearsay rule means section 59(1);

identification evidence means evidence that is—

(a) an assertion by a person to the effect that a defendant was, or resembles (visually, aurally or otherwise) a person who was, present at or near a place where—

(i) the offence for which the defendant is being prosecuted was committed; or
(ii) an act connected to that offence was done—

at or about the time at which the offence was committed or the act was done, being an assertion that is based wholly or partly on what the person making the assertion saw, heard or otherwise perceived at that place and time; or

(b) a report (whether oral or in writing) of such an assertion;

investigating official means—

(a) a police officer (other than a police officer who is engaged in covert investigations under the orders of a superior); or

(b) a person appointed by or under an Australian law (other than a person who is engaged in covert investigations under the orders of a superior) whose functions include functions in respect of the prevention or investigation of offences;

joint sitting means—

(a) in relation to the Parliament of the Commonwealth—a joint sitting of the members of the Senate and of the House of Representatives convened by the Governor-General under section 57 of the Commonwealth Constitution or convened under any Act of the Commonwealth; or

(b) in relation to a bicameral legislature of a State—a joint sitting of both Houses of the legislature convened under a law of the State;

judge, in relation to a proceeding, means the judge, magistrate or other person before whom the proceeding is being held;

law is defined in clause 9 of Part 2 of this Dictionary;

leading question means a question asked of a witness that—

(a)directly or indirectly suggests a particular answer to the question; or

(b)assumes the existence of a fact the existence of which is in dispute in the proceeding and as to the existence of which the witness has not given evidence before the question is asked;

legal counsel means an Australian lawyer employed in or by a government agency or other body who by law is exempted from holding an Australian practising certificate, or who does not require an Australian practising certificate, to engage in legal practice in the course of that employment;

Note

Examples of legal counsel are in-house counsel and government solicitors.

Legislative Assembly means any present or former Legislative Assembly of a Territory, and includes the Australian Capital Territory House of Assembly;

member of the Australian Federal Police includes a special member or a staff member of the Australian Federal Police;

NSW court

Note

The New South Wales Act includes this definition.

offence means an offence against or arising under an Australian law;
opinion rule means section 76;

overseas-registered foreign lawyer has the meaning it has in Part 2.8 of the Legal Profession Act 2004;

parent includes the meaning given in clause 10(2) of Part 2 of this Dictionary;

picture identification evidence is defined in section 115;

police officer means—

(a) a member of the Australian Federal Police; or

(b) a member of the police force of a State or Territory;

postal article has the same meaning as in the Australian Postal Corporation Act 1989 of the Commonwealth;

previous representation means a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced;

prior consistent statement of a witness means a previous representation that is consistent with evidence given by the witness;

prior inconsistent statement of a witness means a previous representation that is inconsistent with evidence given by the witness;

probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue;

prosecutor means a person who institutes or is responsible for the conduct of a prosecution;

public document means a document that—

(a) forms part of the records of the Crown in any of its capacities; or

(b) forms part of the records of the government of a foreign country; or

(c) forms part of the records of a person or body holding office or exercising a function under or because of the Commonwealth Constitution, an Australian law or a law of a foreign country; or

(d) is being kept by or on behalf of the Crown, such a government or such a person or body—

and includes the records of the proceedings of, and papers presented to—

(e) an Australian Parliament, a House of an Australian Parliament, a committee of such a House or a committee of an Australian Parliament; and

(f) a legislature of a foreign country, including a House or committee (however described) of such a legislature;

re-examination is defined in clause 2(3) and (4) of Part 2 of this Dictionary;

representation includes—

(a) an express or implied representation (whether oral or in writing); or

(b) a representation to be inferred from conduct; or

(c) a representation not intended by its maker to be communicated to or seen by another person; or

(d) a representation that for any reason is not communicated; seal includes a stamp;

tendency evidence means evidence of a kind referred to in section 971) that a party seeks to have adduced for the purpose referred to in that subsection;

tendency rule means section 97(1);

traditional laws and customs of an Aboriginal or Torres Strait Islander group (including a kinship group) includes any of the traditions, customary laws, customs, observances, practices, knowledge and beliefs of the group;

Victorian court means—

(a) the Supreme Court; or

(b) any other court created by Parliament—

and includes any person or body (other than a court) that, in exercising a function under the law of the State, is required to apply the laws of eevidence;

Note

The Commonwealth Act and New South Wales Act do not include this definition.

visual identification evidence is defined in section 114;

witness includes the meaning given in clause 7 of Part 2 of this Dictionary.

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184. Accused may admit matters and give consents

184. Accused may admit matters and give consents

(1) In or before a criminal proceeding, a defendant may-

(a) admit matters of fact; and

(b) give any consent-

that a party to a civil proceeding may make or give.

(2) A defendant's admission or consent is not effective for the purposes of subsection (1) unless-

(a) the defendant has been advised to do so by the defendant's Australian legal practitioner or legal counsel; or

Note

Paragraph (a) differs from the Commonwealth Act and New South Wales Act.

(b) the court is satisfied that the defendant understands the consequences of making the admission or giving the consent.

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90. Discretion to exclude admissions

90. Discretion to exclude admissions

In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if-

(a) the evidence is adduced by the prosecution; and

(b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.

Note

Part 3.11 contains other exclusionary discretions that are applicable to admissions.

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89. Evidence of silence

89. Evidence of silence

(1) In a criminal proceeding, an inference unfavourable to a party must not be drawn from evidence that the party or another person failed or refused-

(a) to answer one or more questions; or

(b) to respond to a representation-

put or made to the party or other person by an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence.

(2) Evidence of that kind is not admissible if it can only be used to draw such an inference.

(3) Subsection (1) does not prevent use of the evidence to prove that the party or other person failed or refused to answer the question or to respond to the representation if the failure or refusal is a fact in issue in the proceeding.

(4) In this section, inference includes-

(a) an inference of consciousness of guilt; or

(b) an inference relevant to a party's credibility.

The common law prohibition on the use of silence (or the absence of action) to draw adverse inferences is dicussed in Petty v The Queen (1991) 173 CLR 95. Section 89 supplements the common law and does not extinguish it. This section is narrower in scope than the common law "right to silence" and only relates to questions or representations put to or made by an investigating official: Sanchez v R [2009] NSWCCA 171 at 71.

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88. Proof of admissions

88. Proof of admissions

For the purpose of determining whether evidence of an admission is admissible, the court is to find that a particular person made the admission if it is reasonably open to find that he or she made the admission.

Admission is defined in Part 1 of the Dictionary.

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87. Admissions made with authority

87. Admissions made with authority

(1) For the purpose of determining whether a previous representation made by a person is also taken to be an admission by a party, the court is to admit the representation if it is reasonably open to find that-

(a) when the representation was made, the person had authority to make statements on behalf of the party in relation to the matter with respect to which the representation was made; or

(b) when the representation was made, the person was an employee of the party, or had authority otherwise to act for the party, and the representation related to a matter within the scope of the person's employment or authority; or

(c) the representation was made by the person in furtherance of a common purpose (whether lawful or not) that the person had with the party or one or more persons including the party.

(2) For the purposes of this section, the hearsay rule does not apply to a previous representation made by a person that tends to prove-

(a) that the person had authority to make statements on behalf of another person in relation to a matter; or

(b) that the person was an employee of another person or had authority otherwise to act for another person; or

(c) the scope of the person's employment or authority.

Admission is defined in Part 1 of the Dictionary.

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86. Exclusion of records of oral questioning

86. Exclusion of records of oral questioning

(1) This section applies only in a criminal proceeding and only if an oral admission was made by a defendant to an investigating official in response to a question put or a representation made by the official.

(2) A document prepared by or on behalf of the official is not admissible to prove the contents of the question, representation or response unless the defendant has acknowledged that the document is a true record of the question, representation or response.

(3) The acknowledgement must be made by signing, initialling or otherwise
marking the document.

(4) In this section, document does not include-

(a) a sound recording, or a transcript of a sound recording; or

(b) a recording of visual images and sounds, or a transcript of the sounds
so recorded.

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85. Criminal proceedings - reliability of admissions by defendants

85. Criminal proceedings - reliability of admissions by defendants

(1) This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant-

(a) to, or in the presence of, an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence; or

(b) as a result of an act of another person who was, and who the defendant knew or reasonably believed to be, capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued.

Note

Subsection (1) was inserted as a response to the decision of the High Court of Australia in Kelly v The Queen (2004) 218 CLR 216.

(2) Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected.

(3) Without limiting the matters that the court may take into account for the purposes of subsection (2), it is to take into account-

(a) any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject; and

(b) if the admission was made in response to questioning-

(i) the nature of the questions and the manner in which they were put; and

(ii) the nature of any threat, promise or other inducement made to the person questioned.

Admission is defined in Part 1 of the Dictionary.

In CGL v DPP (No 2) [2010] VSCA 24 the correctness of a trial judge's finding that the truth of the admission was unlikely to have been adversely affected was sought to be challenged, using s 295 of the Criminal Procedure Act 2009 to seek an appeal of the interlocutory decision in the Court of Appeal. The Court applied a 'threshold test' - without seeking to define its scope and operation - and concluded that, despite the issuing of a certificate by the trial judge, the exclusion of such evidence would not eliminate or substantially weaken the Crown case (an important component of that section). The merits of the s 85 argument, then, became irrelevant.

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84. Exclusion of admissions influenced by violence and certain other conduct

84. Exclusion of admissions influenced by violence and certain other conduct

(1) Evidence of an admission is not admissible unless the court is satisfied that the admission, and the making of the admission, were not influenced by-

(a) violent, oppressive, inhuman or degrading conduct, whether towards the person who made the admission or towards another person; or

(b) a threat of conduct of that kind.

(2) Subsection (1) only applies if the party against whom evidence of the admission is adduced has raised in the proceeding an issue about whether the admission or its making were so influenced.

Admission is defined in Part 1 of the Dictionary.

Several observers have noted the (surely intentional) acronym of VOID for the prohibited conduct set out in (1).

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83. Exclusion of evidence of admissions as against third parties

83. Exclusion of evidence of admissions as against third parties

(1) Section 81 does not prevent the application of the hearsay rule or the opinion rule to evidence of an admission in respect of the case of a third party.

(2) The evidence may be used in respect of the case of a third party if that party consents.

(3) Consent cannot be given in respect of part only of the evidence.

(4) In this section, third party means a party to the proceeding concerned,
other than the party who-

(a) made the admission; or

(b) adduced the evidence.

Admission is defined in Part 1 of the Dictionary.

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82. Exclusion of evidence of admissions that is not first-hand

82. Exclusion of evidence of admissions that is not first-hand

Section 81 does not prevent the application of the hearsay rule to evidence of an admission unless-

(a) it is given by a person who saw, heard or otherwise perceived the admission being made; or

(b) it is a document in which the admission is made.

Note

Section 60 does not apply in a criminal proceeding to evidence of an admission.

Admission is defined in Part 1 of the Dictionary.

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81. Hearsay and opinion rules - exception for admissions and related representations

81. Hearsay and opinion rules - exception for admissions and related representations

(1) The hearsay rule and the opinion rule do not apply to evidence of an admission.

(2) The hearsay rule and the opinion rule do not apply to evidence of a previous representation-

(a) that was made in relation to an admission at the time the admission was made, or shortly before or after that time; and

(b) to which it is reasonably necessary to refer in order to understand the admission.

Note

Specific exclusionary rules relating to admissions are as follows-

· evidence of admissions that is not first-hand (section 82)
· use of admissions against third parties (section 83)
· admissions influenced by violence and certain other conduct (section 84)
· unreliable admissions of accused persons (section 85)
· records of oral questioning of accused persons (section 86)

Example

D admits to W, his best friend, that he sexually assaulted V. In D's trial for the sexual assault, the prosecution may lead evidence from W-

(a) that D made the admission to W as proof of the truth of that admission; and

(b) that W formed the opinion that D was sane when he made the admission.

Admission is defined in Part 1 of the Dictionary.

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