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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Dictionary Part 2 - Other Definitions

Dictionary Part 2 - Other Definitions

1 References to businesses

(1) A reference in this Act to a business includes a reference to the following—

(a) a profession, calling, occupation, trade or undertaking;

(b) an activity engaged in or carried on by the Crown in any of its capacities;

(c) an activity engaged in or carried on by the government of a foreign country;

(d) an activity engaged in or carried on by a person or body holding office or exercising power under or because of the Commonwealth Constitution, an Australian law or a law of a foreign country, being an activity engaged in or carried on in the performance of the functions of the office or in the exercise of the power (otherwise than in a private capacity);

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

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

(2) A reference in this Act to a business also includes a reference to—

(a) a business that is not engaged in or carried on for profit; or

(b) a business engaged in or carried on outside Australia.

2 References to examination in chief, cross-examination and re-examination

(1) A reference in this Act to examination in chief of a witness is a reference to the questioning of a witness by the party who called the witness to give evidence, not being questioning that is re examination.

(2) A reference in this Act to cross-examination of a witness is a reference to the questioning of a witness by a party other than the party who called the witness to give evidence.

(3) A reference in this Act to re-examination of a witness is a reference to the questioning of a witness by the party who called the witness to give evidence, being questioning (other than further examination in chief with the leave of the court) conducted after the cross-examination of the witness by another party.

(4) If a party has recalled a witness who has already given evidence, a reference in this Act to re-examination of a witness does not include a reference to the questioning of the witness by that party before the witness is questioned by another party.

3 References to civil penalties

For the purposes of this Act, a person is taken to be liable to a civil penalty if, in an Australian or overseas proceeding (other than a criminal proceeding), the person would be liable to a penalty arising under an Australian law or a law of a foreign country.

4 Unavailability of persons

(1) For the purposes of this Act, a person is taken not to be available to give evidence about a fact if—

(a) the person is dead; or

(b) the person is, for any reason other than the application of section 16 (Competence and compellability—judges and jurors), not competent to give the evidence about the fact; or

(c) it would be unlawful for the person to give evidence about the fact; or

(d) a provision of this Act prohibits the evidence being given; or

(e) all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or to secure his or her attendance, but without success; or

(f) all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success.

(g) the person is mentally or physically unable to give evidence and it is not reasonably practicable to overcome that inability.

(2) In all other cases the person is taken to be available to give evidence about the fact.

5 Unavailability of documents and things

For the purposes of this Act, a document or thing is taken not to be available to a party if and only if—

(a) it cannot be found after reasonable inquiry and search by the party; or

(b) it was destroyed by the party, or by a person on behalf of the party, otherwise than in bad faith, or was destroyed by another person; or

(c) it would be impractical to produce the document or thing during the course of the proceeding; or

(d) production of the document or thing during the course of the proceeding could render a person liable to conviction for an offence; or

(e) it is not in the possession or under the control of the party and—

(i) it cannot be obtained by any judicial procedure of the court; or

(ii) it is in the possession or under the control of another party to the proceeding concerned who knows or might reasonably be expected to know that evidence of the contents of the document, or evidence of the thing, is likely to be relevant in the proceeding; or

(iii) it was in the possession or under the control of such a party at a time when that party knew or might reasonably be expected to have known that such evidence was likely to be relevant in the proceeding.

6 Representations in documents

For the purposes of this Act, a representation contained in a document is taken to have been made by a person if—

(a) the document was written, made or otherwise produced by the person; or

(b) the representation was recognised by the person as his or her representation by signing, initialling or otherwise marking the document.

7 Witnesses

(1) A reference in this Act to a witness includes a reference to a party giving evidence.

(2) A reference in this Act to a witness who has been called by a party to give evidence includes a reference to the party giving evidence.

(3) A reference in this clause to a party includes a defendant in a criminal proceeding.

8 References to documents

A reference in this Act to a document includes a reference to—

(a) any part of the document; or

(b) any copy, reproduction or duplicate of the document or of any part of the document; or

(c) any part of such a copy, reproduction or duplicate.

8A References to offices etc.

In this Act—

(a) a reference to a person appointed or holding office under or because of an Australian law or a law of the Commonwealth includes a reference to an APS employee within the meaning of the Public Service Act 1999 of the Commonwealth; and

(b) in that context, a reference to an office is a reference to a position occupied by the APS employee concerned, and a reference to an officer includes a reference to a Secretary, or APS employee, within the meaning of the Act.

9 References to laws

(1) A reference in this Act to a law of the Commonwealth, a State, a Territory or a foreign country is a reference to a law (whether written or unwritten) of or in force in that place.

(2) A reference in this Act to an Australian law is a reference to an Australian law (whether written or unwritten) of or in force in Australia.

10 References to children and parents

(1) A reference in this Act to a child of a person includes a reference to—

(a) an adopted child or ex-nuptial child of the person; or

(b) a child living with the person as if the child were a member of the person's family.

(2) A reference in this Act to a parent of a person includes a reference to—

(a) an adoptive parent of the person; or

(b) if the person is an ex-nuptial child—the person's natural father; or

(c) the person with whom a child is living as if the child were a member of the person's family.

11 References to de facto partners

(1) A reference in this Act to a de facto partner of a person is a reference to a person who is in a de facto relationship with the person.

(2) A person is in a de facto relationship with another person if the two persons have a relationship as a couple and are not legally married.

(3) In determining whether two persons are in a de facto relationship, all the circumstances of the relationship are to be taken into account, including such of the following matters as are relevant in the circumstances of the particular case—

(a) the duration of the relationship;

(b) the nature and extent of their common residence;

(c) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;

(d) the ownership, use and acquisition of their property;

(e) the degree of mutual commitment to a shared life;

(f) the care and support of children;

(g) the reputation and public aspects of the relationship.

(4) No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether two persons have a relationship as a couple.

(5) For the purposes of subclause (3), the following matters are irrelevant—

(a) whether the persons are different sexes or the same sex;

(b) whether either of the persons is legally married to someone else or in another de facto relationship.

(6) Despite subclauses (3) and (4), a person is in a de facto relationship with another person if those two persons are in a registered relationship within the meaning of the Relationships Act 2008.

Note

The Commonwealth Act and New South Wales Act do not include subclause (6).

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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.

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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.

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

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


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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.

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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].

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171. Persons who may give such evidence

171. Persons who may give such evidence

(1) Such evidence may be given by-

(a) a person who, at the relevant time or afterwards, had a position of responsibility in relation to making or keeping the document or thing; or

(b) except in the case of evidence of a fact that is to be proved in relation to a document or thing because of section 63, 64 or 65 - an authorised person.

(2) Despite subsection (1)(b), evidence must not be given under this section by an authorised person who, at the relevant time or afterwards, did not have a position of responsibility in relation to making or keeping the document or thing unless it appears to the court that-

(a) it is not reasonably practicable for the evidence to be given by a person who had, at the relevant time or afterwards, a position of responsibility in relation to making or keeping the document or thing; or

(b) having regard to all the circumstances of the case, undue expense would be caused by calling such a person as a witness.

(3) In this section, authorised person means-

(a) a person before whom an affidavit may be sworn and taken in a country or place outside the State under section 124 of the Evidence Act 1958; or

(b) a member of the police force above the rank of sergeant; or

(c) a person authorised by the Attorney-General for the purposes of this section.

Note

The Commonwealth Act and New South Wales Act contain a different definition of authorised person.

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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.

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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.

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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.

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158. Evidence of certain public documents

158. Evidence of certain public documents

(1) If-

(a) a public document, or a certified copy of a public document, of another State or a Territory is admissible for a purpose in that State or Territory under the law of that State or Territory; and

(b) it purports to be sealed, or signed and sealed, or signed alone, as directed by the law of that State or Territory-

it is admissible in evidence to the same extent and for that purpose in all Victorian courts-

(c) without proof of-

(i) the seal or signature; or

(ii) the official character of the person appearing to have signed it; and

(d) without further proof in every case in which the original document could have been received in evidence.

(2) A public document of another State or a Territory that is admissible in evidence for any purpose in that State or Territory under the law of that State or Territory without proof of-

(a) the seal or signature authenticating the document; or

(b) the judicial or official character of the person appearing to have signed the document-

is admissible in evidence to the same extent and for any purpose in all Victorian courts without such proof.

(3) This section only applies to documents that are public records of another State or a Territory.

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157. Public documents relating to court processes

157. Public documents relating to court processes

Evidence of a public document that is a judgment, act or other process of an Australian court or a foreign court, or that is a document lodged with an Australian court or a foreign court, may be adduced by producing a document that purports to be a copy of the public document and that-

(a) is proved to be an examined copy; or

(b) purports to be sealed with the seal of that court; or

(c) purports to be signed by a judge, magistrate, registrar or other roper officer of that court.

Note

Section 5 of the Commonwealth Act extends the operation of section 157 of the Commonwealth Act to proceedings in all Australian courts.

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156. Public documents

156. Public documents

(1) A document that purports to be a copy of, or an extract from or summary
of, a public document and to have been-

(a) sealed with the seal of a person who, or a body that, might reasonably be supposed to have the custody of the public document; or

(b) certified as such a copy, extract or summary by a person who might reasonably be supposed to have custody of the public document-

is presumed, unless the contrary is proved, to be a copy of the public document, or an extract from or summary of the public document.

(2) If an officer entrusted with the custody of a public document is required by a court to produce the public document, it is sufficient compliance with the requirement for the officer to produce a copy of, or extract from, the public document if it purports to be signed and certified by the officer as a true copy or extract.

(3) It is sufficient production of a copy or extract for the purposes of subsection (2) if the officer sends it by prepaid post, or causes it to be delivered, to-

(a) the proper officer of the court in which it is to be produced; or

(b) the person before whom it is to be produced.

(4) The court before which a copy or extract is produced under subsection (2) may direct the officer to produce the original public document.

Note

Section 182 of the Commonwealth Act gives section 156 of the Commonwealth Act a wider application in relation to Commonwealth records.

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153. Gazettes and other official documents

153. Gazettes and other official documents

(1) It is presumed, unless the contrary is proved, that a document purporting-

(a) to be any government or official gazette (by whatever name called) of this State, the Commonwealth, another State, a Territory or a foreign country; or

(b) to have been printed by the Government Printer of this State, or by the government or official printer of the Commonwealth or of a State or Territory; or

(c) to have been printed by authority of the government or administration
of this State, the Commonwealth, another State, a Territory or a
foreign country-

is what it purports to be and was published on the day on which it purports to have been published.

(2) If-

(a) there is produced to a court-

(i) a copy of any government or official gazette (by whatever name called) of this State, the Commonwealth, another State, a Territory or a foreign country; or

(ii) a document that purports to have been printed by the Government Printer of this State, or by the government or official printer of the Commonwealth or of a State or Territory; or

(iii) a document that purports to have been printed by authority of the government or administration of this State, the Commonwealth, another State, a Territory or a foreign country; and

(b) the doing of an act-

(i) by the Governor-General or by the Governor of a State or the Administrator of a Territory; or

(ii) by a person authorised or empowered to do the act by an Australian law or a law of a foreign country- is notified or published in the copy or document- it is presumed, unless the contrary is proved, that the act was duly done and, if the day on which the act was done appears in the copy or document, it was done on that day. Note Section 5 of the Commonwealth Act extends the operation of section 153 of the Commonwealth Act to proceedings in all Australian courts.

In the summary jurisdiction, this provision will remove the prosecution's obligation to tender Regulations, as commonly occurs in the hearing of traffic charges.

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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.

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150. Seals and signatures

150. Seals and signatures

(1) If the imprint of a seal appears on a document and purports to be the imprint of-

(a) the Public Seal of the State; or

(b) a Royal Great Seal; or

(c) the Great Seal of Australia; or

(d) another seal of the Commonwealth; or

(e) a seal of another State, a Territory or a foreign country; or

(f) the seal of a body (including a court or a tribunal), or a body corporate, established by or under Royal Charter or by an Australian law or the law of a foreign country-

it is presumed, unless the contrary is proved, that the imprint is the imprint of that seal, and the document was duly sealed as it purports to have been sealed.

Note

The Commonwealth Act has a different subsection (1).

(2) If the imprint of a seal appears on a document and purports to be the imprint of the seal of an office holder, it is presumed, unless the contrary is proved, that-

(a) the imprint is the imprint of that seal; and

(b) the document was duly sealed by the office holder acting in his or her official capacity; and

(c) the office holder held the relevant office when the document was sealed.

(3) If a document purports to have been signed by an office holder in his or her official capacity, it is presumed, unless the contrary is proved, that-

(a) the document was signed by the office holder acting in that capacity; and

(b) the office holder held the relevant office when the document was
signed.

(4) In this section, office holder means-

(a) the Sovereign; or

(b) the Governor-General; or

(c) the Governor of a State; or

(d) the Administrator of a Territory; or

(e) a person holding any other office under an Australian law or a law of a foreign country.

(5) This section extends to documents sealed, and documents signed, before the commencement of this section.

Notes

1. Section 5 of the Commonwealth Act extends the operation of this section of the Commonwealth Act to proceedings in all Australian courts.

2. Australian law is defined in the Dictionary.

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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.

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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.

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121. Loss of client legal privilege - generally

121. Loss of client legal privilege - generally

(1) This Division does not prevent the adducing of evidence relevant to a question concerning the intentions, or competence in law, of a client or party who has died.

(2) This Division does not prevent the adducing of evidence if, were the evidence not adduced, the court would be prevented, or it could reasonably be expected that the court would be prevented, from enforcing an order of an Australian court.

(3) This Division does not prevent the adducing of evidence of a communication or document that affects a right of a person.

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119. Litigation

119. Litigation

Evidence is not to be adduced if, on objection by a client, the court finds
that adducing the evidence would result in disclosure of-

(a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made; or

(b) the contents of a confidential document (whether delivered or not)that was prepared-

for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.

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