The Judicial College of Victoria released the second part of their online self-test yesterday.
There are ten questions to test your knowledge of relevance, opinion evidence and the discretions. Like the last part, you'll probably need to refer to the Evidence Act 2008 to complete it.
Good luck!
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.
24. Requirements for oaths
(1) It is not necessary that a religious text be used in taking an oath.
(2) An oath is effective for the purposes of this Division even if the person who took it-(a) did not have a religious belief or did not have a religious belief of a particular kind; or
(b) did not understand the nature and consequences of the oath.
11. General powers of a courtRead more...
(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.
10. Parliamentary privilege preservedRead more...
(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.
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.
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.
7. Act binds CrownRead more...
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.
6. TerritoriesRead more...
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Note
The Commonwealth Act includes a provision extending that Act to each external Territory.
5. Extended application of certain provisionsRead more...
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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.
4. Courts and proceedings to which Act appliesRead more...
(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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