Evidence Act 2008: Division 1

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

170. Evidence relating to certain matters

170. Evidence relating to certain matters

(1) Evidence of a fact that is, because of a provision of this Act referred to in the Table, to be proved in relation to a document or thing may be given by a person permitted under section 171 to give such evidence.

Table

Provisions of this Act Subject-matter Section 48
Proof of contents of documents Sections 63, 64 and 65
Hearsay exceptions for "first-hand" hearsay Section 69
Hearsay exception for business records Section 70
Hearsay exception for tags, labels and other writing Section 71
Hearsay exception for telecommunications
The provisions of Part 4.3 Facilitation of proof

Note

The Table to section 170 of the Commonwealth Act includes a reference to section 182 (Commonwealth records) of that Act.

(2) Evidence may be given by affidavit or, if the evidence relates to a public document, by a written statement.

169. Failure or refusal to comply with requests

169. Failure or refusal to comply with requests

(1) If the party has, without reasonable cause, failed or refused to comply with a request, the court may, on application, make one or more of the following orders-

(a) an order directing the party to comply with the request;

(b) an order that the party produce a specified document or thing, or call as a witness a specified person, as mentioned in section 166;

(c) an order that the evidence in relation to which the request was made is not to be admitted in evidence;

(d) such order with respect to adjournment or costs as is just.

(2) If the party had, within a reasonable time after receiving the request, informed the other party that it refuses to comply with the request, any application under subsection (1) by the other party must be made within a reasonable time after being so informed.

(3) The court may, on application, direct that evidence in relation to which a request was made is not to be admitted in evidence if an order made by it under subsection (1)(a) or (b) is not complied with.

(4) Without limiting the circumstances that may constitute reasonable cause for a party to fail to comply with a request, it is reasonable cause to fail to comply with a request if-

(a) the document or thing to be produced is not available to the party; or

(b) the existence and contents of the document are not in issue in the proceeding in which evidence of the document is proposed to be adduced; or

(c) the person to be called as a witness is not available.

(5) Without limiting the matters that the court may take into account in relation to the exercise of a power under subsection (1), it is to take into account-

(a) the importance in the proceeding of the evidence in relation to which the request was made; and

(b) whether there is likely to be a dispute about the matter to which the evidence relates; and

(c) whether there is a reasonable doubt as to the authenticity or accuracy of the evidence that is, or the document the contents of which are, sought to be proved; and

(d) whether there is a reasonable doubt as to the authenticity of the document or thing that is sought to be tendered; and

(e) if the request relates to evidence of a previous representation - whether there is a reasonable doubt as to the accuracy of the representation or of the evidence on which it was based; and

(f) in the case of a request referred to in paragraph (g) of the definition of request in section 166-whether another person is available to give evidence about the conviction or the facts that were in issue in the proceeding in which the conviction was obtained; and

(g) whether compliance with the request would involve undue expense or delay or would not be reasonably practicable; and

(h) the nature of the proceeding.

Note

Clause 5 of Part 2 of the Dictionary is about the availability of documents and things, and clause 4 of Part 2 of the Dictionary is about the availability of persons.

167. Requests may be made about certain matters

167. Requests may be made about certain matters

A party may make a reasonable request to another party for the purpose of determining a question that relates to-

(a) a previous representation; or

(b) evidence of a conviction of a person for an offence; or

(c) the authenticity, identity or admissibility of a document or thing.

168. Time limits for making certain requests

168. Time limits for making certain requests

(1) If a party has given to another party written notice of its intention to adduce evidence of a previous representation, the other party may only make a request to the party relating to the representation if the request is made within 21 days after the notice was given.

(2) Despite subsection (1), the court may give the other party leave to make a request relating to the representation after the end of that 21 day period if it is satisfied that there is a good reason to do so.

(3) If a party has given to another party written notice of its intention to adduce evidence of a person's conviction of an offence in order to prove a fact in issue, the other party may only make a request relating to evidence of the conviction if the request is made within 21 days after the notice is given.

(4) Despite subsection (3), the court may give the other party leave to make a request relating to evidence of the conviction after the end of that 21 day period if it is satisfied that there is good reason to do so.

(5) If a party has served on another party a copy of a document that it
intends to tender in evidence, the other party may only make a request
relating to the document if the request is made within 21 days after service of the copy.

(6) If the copy of the document served under subsection (5) is accompanied by, or has endorsed on it, a notice stating that the document is to be tendered to prove the contents of another document, the other party may only make a request relating to the other document if the request is made within 21 days after service of the copy.

(7) Despite subsections (5) and (6), the court may give the other party leave to make a request relating to the document, or other document, after the end of the 21 day period if it is satisfied that there is good reason to do so.

166. Definition of request

166. Definition of request

In this Division, request means a request that a party (the requesting party) makes to another party to do one or more of the following-

(a) to produce to the requesting party the whole or a part of a specified document or thing;

(b) to permit the requesting party, adequately and in an appropriate way, to examine, test or copy the whole or a part of a specified document or thing;

(c) to call as a witness a specified person believed to be concerned in the production or maintenance of a specified document or thing;

(d) to call as a witness a specified person in whose possession or under
whose control a specified document or thing is believed to be or to have been at any time;

(e) in relation to a document of the kind referred to in paragraph (b) or c) of the definition of document in the Dictionary - to permit the requesting party, adequately and in an appropriate way, to examine and test the document and the way in which it was produced and has been kept;

(f) in relation to evidence of a previous representation - to call as a witness the person who made the previous representation;

(g) in relation to evidence that a person has been convicted of an offence, being evidence to which section 92(2) applies-to call as a witness a person who gave evidence in the proceeding in which the person was so convicted.

2009-07-11

152. Documents produced from proper custody

152. Documents produced from proper custody

If a document that is or purports to be more than 20 years old is produced
from proper custody, it is presumed, unless the contrary is proved, that-

(a) the document is the document that it purports to be; and

(b) if it purports to have been executed or attested by a person-it was duly executed or attested by that person.

Note

Section 182 of the Commonwealth Act gives section 152 of the Commonwealth Act a wider application in relation to Commonwealth records and certain Commonwealth documents.

151. Seals of bodies established under State law

151. Seals of bodies established under State law

* * * * *

Note

The Commonwealth Act includes a provision dealing with certain seals of bodies established by Royal Charter or a law of a State.

149. Attestation of documents

149. Attestation of documents

It is not necessary to adduce the evidence of an attesting witness to a document (not being a testamentary document) to prove that the document was signed or attested as it purports to have been signed or attested.

Note

Section 182 of the Commonwealth Act gives section 149 of the Commonwealth Act a wider application in relation to Commonwealth records and certain Commonwealth documents.

148. Evidence of certain acts of justices, Australian lawyers and notaries

148. Evidence of certain acts of justices, Australian lawyers and notaries public

It is presumed, unless the contrary is proved, that a document was attested or verified by, or signed or acknowledged before, a justice of the peace, Australian lawyer or notary public, if-

(a) an Australian law requires, authorises or permits it to be attested, verified, signed or acknowledged by a justice of the peace, an Australian lawyer or a notary public, as the case may be; and

(b) it purports to have been so attested, verified, signed or acknowledged.

147. Documents produced by processes, machines and other devices in the course of business

147. Documents produced by processes, machines and other devices in the course of business

(1) This section applies to a document-

(a) that is produced wholly or partly by a device or process; and

(b) that is tendered by a party who asserts that, in producing the
document, the device or process has produced a particular outcome.

(2) If-

(a) the document is, or was at the time it was produced, part of the records of, or kept for the purposes of, a business (whether or not the business is still in existence); and

(b) the device or process is or was at that time used for the purposes of
the business-

it is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that, in producing the document on the occasion in question, the device or process produced that outcome.

(3) Subsection (2) does not apply to the contents of a document that was
produced-

(a) for the purpose of conducting, or for or in contemplation of or in connection with, an Australian or overseas proceeding; or

(b) in connection with an investigation relating or leading to a criminal proceeding.

Note

Section 182 of the Commonwealth Act gives section 147 of the Commonwealth Act a wider application in relation to Commonwealth records and certain Commonwealth documents.

Businesses are defined in Part 2 Clause 1 of the Dictionary.

In Williams v Brian [2010] ACTSC 39 the downloads from a GPS device were held to fall within this category of evidence.

146. Evidence produced by processes, machines and other devices

146. Evidence produced by processes, machines and other devices

(1) This section applies to a document or thing-

(a) that is produced wholly or partly by a device or process; and

(b) that is tendered by a party who asserts that, in producing the document or thing, the device or process has produced a particular outcome.

(2) If it is reasonably open to find that the device or process is one that,or is of a kind that, if properly used, ordinarily produces that outcome, it is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that, in producing the document or thing on the occasion in question, the device or process produced that outcome.

Example

It would not be necessary to call evidence to prove that a photocopier normally produced complete copies of documents and that it was working properly when it was used to photocopy a particular document.

125. Loss of client legal privilege - misconduct

125. Loss of client legal privilege - misconduct

(1) This Division does not prevent the adducing of evidence of-

(a) a communication made or the contents of a document prepared by a client or lawyer (or both), or a party who is not represented in the proceeding by a lawyer, in furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty; or

(b) a communication or the contents of a document that the client or a lawyer (or both), or the party, knew or ought reasonably to have known was made or prepared in furtherance of a deliberate abuse of a power.

(2) For the purposes of this section, if the commission of the fraud, offence or act, or the abuse of power, is a fact in issue and there are reasonable grounds for finding that-

(a) the fraud, offence or act, or the abuse of power, was committed; and

(b) a communication was made or document prepared in furtherance of the commission of the fraud, offence or act or the abuse of power-

the court may find that the communication was so made or the document so
prepared.

(3) In this section, power means a power conferred by or under an Australian law.

123. Loss of client legal privilege - defendants

123. Loss of client legal privilege - defendants

In a criminal proceeding, this Division does not prevent a defendant from adducing evidence unless it is evidence of-

(a) a confidential communication made between an associated defendant and a lawyer acting for that person in connection with the prosecution of that person; or

(b) the contents of a confidential document prepared by an associated defendant or by a lawyer acting for that person in connection with the prosecution of that person.

Note

Associated defendant is defined in the Dictionary.

120. Unrepresented parties

120. Unrepresented parties

(1) Evidence is not to be adduced if, on objection by a party who is not represented in the proceeding by a lawyer, the court finds that adducing the evidence would result in disclosure of-

(a) a confidential communication between the party and another person; or

(b) the contents of a confidential document (whether delivered or not that was prepared, either by or at the direction or request of, the party-

for the dominant purpose of preparing for or conducting the proceeding.

(2) * * * * *

117. Definitions

117. Definitions

(1) In this Division-

client includes the following-

(a) a person or body who engages a lawyer to provide legal services or who employs a lawyer (including under a contract of service);

(b) an employee or agent of a client;

(c) an employer of a lawyer if the employer is-

(i) the Commonwealth or a State or Territory; or

(ii) a body established by a law of the Commonwealth or a State or Territory;

(d) if, under a law of a State or Territory relating to persons of unsound mind, a manager, committee or person (however described) is for the time being acting in respect of the person, estate or property of a client-a manager, committee or person so acting;

(e) if a client has died-a personal representative of the client;

(f) a successor to the rights and obligations of a client, being rights and obligations in respect of which a confidential communication was made; confidential communication means a communication made in such circumstances that, when it was made-

(a) the person who made it; or

(b) the person to whom it was made - was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law; confidential document means a document prepared in such circumstances that, when it was prepared-

(a) the person who prepared it; or

(b) the person for whom it was prepared- was under an express or implied
obligation not to disclose its contents, whether or not the obligation
arises under law;

lawyer means-

(a) an Australian lawyer; and

(b) an Australian-registered foreign lawyer; and

(c) an overseas-registered foreign lawyer or a natural person who, under the law of a foreign country, is permitted to engage in legal practice in that country; and

(d) an employee or agent of a lawyer referred to in paragraph (a), (b) or (c); party includes the following-

(a) an employee or agent of a party;

(b) if, under a law of a State or Territory relating to persons of unsound mind, a manager, committee or person (however described) is for the time being acting in respect of the person, estate or property of a party - a manager, committee or person so acting;

(c) if a party has died - a personal representative of the party;

(d) a successor to the rights and obligations of a party, being rights and obligations in respect of which a confidential communication was made.

(2) A reference in this Division to the commission of an act includes a reference to a failure to act.

2009-07-10

101A Credibility evidence

101A. Credibility evidence

Credibility evidence, in relation to a witness or other person, is evidence relevant to the credibility of the witness or person that-

(a) is relevant only because it affects the assessment of the credibility of the witness or person; or

(b) is relevant-

(i) because it affects the assessment of the credibility of the witness or person; and

(ii) for some other purpose for which it is not admissible, or cannot be used, because of a provision of Parts 3.2 to 3.6.

Notes

1. Sections 60 and 77 will not affect the application of paragraph (b), because they cannot apply to evidence that is yet to be admitted.

2. Section 101A was inserted as a response to the decision of the High Court of Australia in Adam v The Queen (2001) 207 CLR 96.

Subscribe to: Posts (Atom)

© Blogger templates The Professional Template by Ourblogtemplates.com 2008

Back to TOP