Evidence Act 2008: Chapter 5

Welcome to the Evidence Act 2008

This blog was started back when the Evidence Act 2008 was nothing more than a gleam in Parliament's eye. It was an attempt to further understanding of some challenging new legislation when information about it was difficult to find.

Since then, many authors and luminaries have turned their minds to the complex issues the Act obliges Victorian lawyers to engage with. A blog devoted exclusively to this one piece of legislation isn't necessary, and is impossible for us to give the attention it deserves.

If you're looking for a more conventional blog posting on topical legal issues, have a look at Quis Custodiet Ipsos Custodes? by the same authors.

This site is no substitute for legal advice from an Australian lawyer. If you have a legal problem, it's great that you are doing a bit of research, but go consult a professional.

2009-07-12

197. Regulations

197. Regulations

(1) The Governor in Council may make regulations for or with respect to any matter or thing that is required or permitted to be prescribed or necessary to be prescribed to give effect to this Act.

(2) The regulations-

(a) may be of general or limited application; and

(b) may differ according to differences in time, place or circumstance.

Note

This section differs from the Commonwealth Act and New South Wales Act.

196. Proceedings for offences

196. Proceedings for offences

* * * * *

Note

This section is unnecessary in Victoria. It is included in the New South Wales Act. The Commonwealth Act does not include an equivalent provision to section 196.

195. Prohibited question not to be published

195. Prohibited question not to be published

A person must not, without the express permission of a court, print or publish-

(a) any question that the court has disallowed under section 41 (Improper questions); or

(b) any question that the court has disallowed because any answer that is likely to be given to the question would contravene the credibility rule; or

(c) any question in respect of which the court has refused to give leave under Part 3.7 (Credibility).

Penalty: 60 penalty units.

194. Witnesses failing to attend proceedings

194. Witnesses failing to attend proceedings

(1) If, in a civil or criminal proceeding, a witness fails to appear when called and it is proved that the witness has been-

(a) bound over to appear; or

(b) duly bound by recognisance or undertaking to appear; or

(c) served with a summons or subpoena to attend and a reasonable sum of money has been provided to the witness for his or her costs in so attending-

the court may-

(d) issue a warrant to apprehend the witness and bring him or her before the court; or

(e) order the witness to pay a fine of not more than 5 penalty units; or

(f) take any other action against the witness that is permitted by law.

(2) If a subpoena or summons has been issued for the attendance of a witness on the hearing of a civil or criminal proceeding and it is proved, on application by the party seeking to compel his or her attendance, that the witness-

(a) is avoiding service of the subpoena or summons; or

(b) has been duly served with the subpoena or summons but is unlikely to
comply with it-

the court may issue a warrant to apprehend the witness and bring the witness before the court.

(3) In issuing a warrant under this section, the court may endorse the warrant with a direction that the person must, on arrest, be released on bail as specified in the endorsement.

(4) An endorsement under subsection (3) must fix the amounts in which the principal and the sureties (if any) are bound and the amount of any money or the value of any security to be deposited.

(5) The person to whom the warrant to arrest is directed must cause the person named or described in the warrant when arrested-

(a) to be released on bail in accordance with any endorsement on the warrant; or

(b) if there is no endorsement on the warrant, to be brought before the court which issued the warrant; or

(c) to be discharged from custody on bail in accordance with the Bail Act 1977.

(6) Matters may be proved under this section orally or by affidavit.

(7) A witness, who under subsection (1)(e) has been ordered to pay a fine, is not exempted from any other proceedings for disobeying the subpoena or summons.

Note

This section differs from the New South Wales Act. The Commonwealth Act does not include an equivalent provision to section 194. There are provisions to the same effect in federal court rules and Australian Capital Territory legislation applying to proceedings before federal courts and Australian Capital Territory courts.

193. Additional powers

193. Additional powers

(1) The powers of a court in relation to-

(a) the discovery or inspection of documents; and

(b) ordering disclosure and exchange of evidence, intended evidence, documents and reports-

extend to enabling the court to make such orders as the court thinks fit (including orders about methods of inspection, adjournments and costs) to ensure that the parties to a proceeding can adequately, and in an appropriate manner, inspect documents of the kind referred to in paragraph (b) or (c) of the definition of document in the Dictionary.

(2) The power of a person or body to make rules of courts extends to making rules, not inconsistent with this Act or the regulations, 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.

(3) Without limiting subsection (2), rules made under that subsection may provide for the discovery, exchange, inspection or disclosure of intended evidence, documents and reports of persons intended to be called by a party to give evidence in a proceeding.

(4) Without limiting subsection (2), rules made under that subsection may provide for the exclusion of evidence, or for its admission on specified terms, if the rules are not complied with.

192A. Advance rulings and findings

192A. Advance rulings and findings

Where a question arises in any proceedings, being a question about-

(a) the admissibility or use of evidence proposed to be adduced; or

(b) the operation of a provision of this Act or another law in relation to evidence proposed to be adduced; or

(c) the giving of leave, permission or direction under section 192-

the court may, if it considers it to be appropriate to do so, give a ruling or make a finding in relation to the question before the evidence is adduced in the proceedings.

192. Leave, permission or direction may be given on terms

192. Leave, permission or direction may be given on terms

(1) If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit.

(2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account-

(a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing; and

(b) the extent to which to do so would be unfair to a party or to a witness; and

(c) the importance of the evidence in relation to which the leave, permission or direction is sought; and

(d) the nature of the proceeding; and

(e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence.

191. Agreements as to facts

191. Agreements as to facts

(1) In this section, agreed fact means a fact that the parties to a proceeding have agreed is not, for the purposes of the proceeding, to be disputed.

(2) In a proceeding-

(a) evidence is not required to prove the existence of an agreed fact; and

(b) evidence may not be adduced to contradict or qualify an agreed fact-

unless the court gives leave.

(3) Subsection (2) does not apply unless the agreed fact-

(a) is stated in an agreement in writing signed by the parties or by Australian legal practitioners, legal counsel or prosecutors representing the parties and adduced in evidence in the proceeding; or

(b) with the leave of the court, is stated by a party before the court with the agreement of all other parties.

190 Waiver of rules of evidence

190. Waiver of rules of evidence

(1) The court may, if the parties consent, by order dispense with the application of any one or more of the provisions of-

(a) Division 3, 4 or 5 of Part 2.1; or

(b) Part 2.2 or 2.3; or

(c) Parts 3.2-3.8-

in relation to particular evidence or generally.

(2) In a criminal proceeding, a defendant's 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 giving the consent.

(3) In a civil proceeding, the court may order that any one or more of the provisions mentioned in subsection (1) do not apply in relation to evidence if-

(a) the matter to which the evidence relates is not genuinely in dispute; or

(b) the application of those provisions would cause or involve unnecessary expense or delay.

(4) Without limiting the matters that the court may take into account in deciding whether to exercise the power conferred by subsection (3), it is to take into account-

(a) the importance of the evidence in the proceeding; and

(b) the nature of the cause of action or defence and the nature of the subject-matter of the proceeding; and

(c) the probative value of the evidence; and

(d) the powers of the court (if any) to adjourn the hearing, to make
another order or to give a direction in relation to the evidence.

In Kirk v Industrial Relations Commission (NSW) [2010] HCA 1, the High Court granted certiorari for a purported waiver of s 17(2) (the defendant in a WorkCover prosecution was called as a witness by the prosecutor) which was held to be invalid, Division 1 of Part 2.1 not being included in sub-section (2) above.

189. The voir dire

189. The voir dire

(1) If the determination of a question whether-

(a) evidence should be admitted (whether in the exercise of a discretion or not); or

(b) evidence can be used against a person; or

(c) a witness is competent or compellable-

depends on the court finding that a particular fact exists, the question whether that fact exists is, for the purposes of this section, a preliminary question.

(2) If there is a jury, a preliminary question whether-

(a) particular evidence is evidence of an admission, or evidence to which section 138 (Discretion to exclude improperly or illegally obtained evidence) applies; or

(b) evidence of an admission, or evidence to which section 138 applies, should be admitted-

is to be heard and determined in the jury's absence.

(3) In the hearing of a preliminary question about whether a defendant's admission should be admitted into evidence (whether in the exercise of a discretion or not) in a criminal proceeding, the issue of the admission's truth or untruth is to be disregarded unless the issue is introduced by the defendant.

(4) If there is a jury, the jury is not to be present at a hearing to decide any other preliminary question unless the court so orders.

(5) Without limiting the matters that the court may take into account in deciding whether to make such an order, it is to take into account-

(a) whether the evidence to be adduced in the course of that hearing is likely to be prejudicial to the defendant; and

(b) whether the evidence concerned will be adduced in the course of the hearing to decide the preliminary question; and

(c) whether the evidence to be adduced in the course of that hearing would be admitted if adduced at another stage of the hearing (other than in another hearing to decide a preliminary question or, in a criminal proceeding, a hearing in relation to sentencing).

(6) Section 128(10) does not apply to a hearing to decide a preliminary question.

(7) In the application of Chapter 3 to a hearing to determine a preliminary question, the facts in issue are taken to include the fact to which the hearing relates.

(8) If a jury in a proceeding was not present at a hearing to determine a preliminary question, evidence is not to be adduced in the proceeding of evidence given by a witness at the hearing unless-

(a) it is inconsistent with other evidence given by the witness in the proceeding; or

(b) the witness has died.

Admission is defined in Part 1 of the Dictionary.

188. Impounding documents

188. Impounding documents

The court may direct that a document that has been tendered or produced before the court (whether or not it is admitted in evidence) is to be impounded and kept in the custody of an officer of the court or of another person for such period, and subject to such conditions, as the court thinks fit.

187. No privilege against self-incrimination for bodies corporate

187. No privilege against self-incrimination for bodies corporate

(1) This section applies if, under a law of the State or in a proceeding, a
body corporate is required to-

(a) answer a question or give information; or

(b) produce a document or any other thing; or

(c) do any other act whatever.

(2) The body corporate is not entitled to refuse or fail to comply with the requirement on the ground that answering the question, giving the information, producing the document or other thing or doing that other act, as the case may be, might tend to incriminate the body or make the body liable to a penalty.

Note

This section differs from the Commonwealth Act.

186. Swearing of affidavits

186. Swearing of affidavits

* * * * *

Notes

1. Sections 112, 123C, 124, 125, 126 and 126A of the Evidence Act 1958 relate to swearing affidavits.

2. The Commonwealth Act includes a provision about swearing of affidavits before justices of the peace, notaries public and lawyers for use in court proceedings involving the exercise of federal jurisdiction and in courts of a Territory.

185. Full faith and credit to be given to documents properly authenticated

185. Full faith and credit to be given to documents properly authenticated

* * * * *

Note

The Commonwealth Act includes a provision requiring full faith and credit to be given to the public acts, records and judicial proceedings of a State or Territory.

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.

183. Inferences

183. Inferences

If a question arises about the application of a provision of this Act in relation to a document or thing, the court may-

(a) examine the document or thing; and

(b) draw any reasonable inferences from it as well as from other matters from which inferences may properly be drawn.

Note

Section 182 of the Commonwealth Act gives section 183 of the Commonwealth Act a wider application in relation to Commonwealth records and certain Commonwealth documents.

By virtue of this section, not only may a judicial officer examine an exhibit that is sought to be tendered to consider its admissibility, but (particularly in cases of unrepresented accused) to refuse to do so may constitute appellable error: Williams v Brian [2010] ACTSC 39 [Penfold J at 10].

182. Application of certain sections in relation to Commonwealth records

182. Application of certain sections in relation to Commonwealth records

* * * * *

Note

The Commonwealth Act includes a provision that extends the operation of certain provisions of the Commonwealth Act to Commonwealth records.

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