139. Cautioning of persons

139. Cautioning of persons

(1) For the purposes of section 138(1)(a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained
improperly if-

(a) the person was under arrest for an offence at the time; and

(b) the questioning was conducted by an investigating official who was at the time empowered, because of the office that he or she held, to arrest the person; and

(c) before starting the questioning the investigating official did not
caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence.

(2) For the purposes of section 138(1)(a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained
improperly if-

(a) the questioning was conducted by an investigating official who did not have the power to arrest the person; and

(b) the statement was made, or the act was done, after the investigating official formed a belief that there was sufficient evidence to establish that the person has committed an offence; and

(c) the investigating official did not, before the statement was made or the act was done, caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence.

(3) The caution must be given in, or translated into, a language in which the person is able to communicate with reasonable fluency, but need not be given in writing unless the person cannot hear adequately.

(4) Subsections (1), (2) and (3) do not apply so far as any Australian law
requires the person to answer questions put by, or do things required by, the investigating official.

(5) A reference in subsection (1) to a person who is under arrest includes a reference to a person who is in the company of an investigating official for the purpose of being questioned, if-

(a) the official believes that there is sufficient evidence to establish that the person has committed an offence that is to be the subject of the questioning; or

(b) the official would not allow the person to leave if the person wished to do so; or

(c) the official has given the person reasonable grounds for believing that the person would not be allowed to leave if he or she wished to do so.

(6) A person is not treated as being under arrest only because of subsection (5) if-

(a) the official is performing functions in relation to persons or goods entering or leaving Australia and the official does not believe the person has committed an offence against a law of the Commonwealth; or

(b) the official is exercising a power under an Australian law to detain and search the person or to require the person to provide information or to answer questions.

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138. Exclusion of improperly or illegally obtained evidence

138. Exclusion of improperly or illegally obtained evidence

(1) Evidence that was obtained-

(a) improperly or in contravention of an Australian law; or

(b) in consequence of an impropriety or of a contravention of an Australian law-

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning-

(a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or

(b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.

(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account-

(a) the probative value of the evidence; and

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

(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and

(d) the gravity of the impropriety or contravention; and

(e) whether the impropriety or contravention was deliberate or reckless; and

(f) whether the impropriety or contravention was contrary to or
inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and

(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and

(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

Note

The International Covenant on Civil and Political Rights is set out in Schedule 2 to the Human Rights and Equal Opportunity Commission Act 1986 of the Commonwealth.

Admission is defined in Part 1 of the Dictionary.

In Tasmania v Seabourne [2010] TASSC 35 [at 28] the Tasmanian Supreme Court held that there was impropriety in impeding an occupier's right to supervise the execution of a warrant to search their property, but concluded in the particular circumstances the desirability of admitting the evidence outweighed the desirability of excluding it.

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137. Exclusion of prejudicial evidence in criminal proceedings

137. Exclusion of prejudicial evidence in criminal proceedings

In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

The absence of significant weight alone would not always seen to give rise to its exclusion. Given the traditional inclination toward letting issues of weight be determined by the jury - something the Evidence Act generally promotes - the comments of Hunt CJ (at CL) in R v Sanford (1994) 72 A Crim R 160 [at 137] might apply:

Despite an apparently unshakeable misconception to the contrary on the part of some members of the legal profession, the mere fact that evidence tendered by the Crown is of little weight by itself does not require its rejection under this head of judicial discretion. Nor will evidence be excluded where the only prejudice which it causes is that it establishes (or tends to establish, or assists in establishing) the guilt of the accused. The Christie discretion to exclude evidence is usually directed to evidence which, although not itself probative (or only slightly probative) of guilt, is also probative of some other matter which may wrongly be regarded by the jury as probative (or strongly probative) of guilt – for example, propensity. I can see no prejudice of that type here. This is not of the class of case where the sheer magnitude of the sum involved was likely to divert the jury from its proper task.

The correct approach involves a balancing exercise, though how this is to be achieved is still unclear. The Court of Appeal in R v DG; DG v R [2010] VSCA 173 [at 51] adopted the language of Scalia J in Bendix Autolite Corporation v Midwesco Enterprises Inc 486 US 888 (1988), 897 when describing the comparison of prejudicial effect with probative value as like asking ‘whether a particular line is longer than a particular rock is heavy’. Clearly the balancing exercise undertaken by a judge under s 137 is no simple task. Any conclusion reached may well be one upon which reasonable minds can differ.

The original ALRC Report No 26 [at 957] acknowledged,

There is uncertainty over the meaning of "prejudice". But clearly it does not mean simply damage to the accused's case. It means damage to the accused's case in some uacceptable way, by provoking some irrational, emotional response, or giving evidence more weight than it should have.

Unfair prejudice may be misuse by a trier of fact adopting an illegitimate form of reasoning or to give the evidence undue weight: DPP v Williams (Ruling No. 1) [2010] VSC 34 at 23. In that case, vague threats to kill a person other than the victim at a time and place remote to the alleged offence were held by the trial judge not to relevant under s 55 and so not admissible. Lasry J indicated he would also have excluded the statements in the exercise of his discretion under s 137.

The appropriate test the Court of Appeal should apply when reviewing a trial judge's decision under s 137 was given consideration in THD v The Queen [2010] VSCA 115. Maxwell P and Nettle JA both expressed a tentative view that the fairness of the array of photos in a photoboard is an exercise of judgment reviewable according to the principles in House v R (1936) 55 CLR 499 (was the decision open rather than was that the decision the appelate court would have made) but did not find it necessary to decide that question conclusively.

Section 137 does not merely permit a court to exclude evidence if it reaches the conclusion which the trial judge did in this case; it requires such exclusion: DPP v B B; DPP v Q N [2010] VSCA 211.

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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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114. Exclusion of visual identification evidence

114. Exclusion of visual identification evidence

(1) In this section, visual identification evidence means identification evidence relating to an identification based wholly or partly on what a person saw but does not include picture identification evidence.

(2) Visual identification evidence adduced by the prosecutor is not admissible unless-

(a) an identification parade that included the defendant was held before the identification was made; or

(b) it would not have been reasonable to have held such a parade; or

(c) the defendant refused to take part in such a parade-

and the identification was made without the person who made it having been intentionally influenced to identify the defendant.

(3) Without limiting the matters that may be taken into account by the court in determining whether it was reasonable to hold an identification parade, it is to take into account-

(a) the kind of offence, and the gravity of the offence, concerned; and

(b) the importance of the evidence; and

(c) the practicality of holding an identification parade having regard, among other things-

(i) if the defendant failed to cooperate in the conduct of the parade-to the manner and extent of, and the reason (if any) for, the failure; and

(ii) in any case-to whether the identification was made at or about the time of the commission of the offence; and

(d) the appropriateness of holding an identification parade having regard, among other things, to the relationship (if any) between the defendant and the person who made the identification.

(4) It is presumed that it would not have been reasonable to have held an identification parade if it would have been unfair to the defendant for such a parade to have been held.

(5) If-

(a) the defendant refused to take part in an identification parade unless an Australian legal practitioner or legal counsel acting for the defendant, or another person chosen by the defendant, was present while it was being held; and

(b) there were, at the time when the parade was to have been conducted, reasonable grounds to believe that it was not reasonably practicable for such an Australian legal practitioner or legal counsel or person to be present-

it is presumed that it would not have been reasonable to have held an identification parade at that time.

(6) In determining whether it was reasonable to have held an identification parade, the court is not to take into account the availability of pictures or photographs that could be used in making identifications.

The Victorian Court of Appeal first considered the operation of these identification provisions in THD v The Queen [2010] VSCA 115.

The common law preference for identification parades as the fairest and least unreliable form of identification is retained. An accused can't be made to participate against their will and the refusal to participate can't be used by the prosecution for any other purpose but to explain why a lesser form of identification was used.

If an identification parade isn't done, s.114(2) provides that other forms of visual identification evidence will be inadmissible. The principal exceptions are (b) if it would not have been reasonable to hold a parade; or (c) the defendant refused to take part in such a parade. A series of non-exhaustive considerations are also included at (3).

Unlike Commonwealth legislation, there's no requirements for the conduct of identification parades in Victorian law and no requirement that they (or the refusal to participate in one) is recorded. If a parade was to be conducted unfairly, the general discretions to reject evidence at s. 135, s.138 and s.165(b) still apply.

For the purposes of s.114(2) it might be argued that it will not be reasonable to conduct an identification parade - a justification for admitting other evidence where one has not been conducted - where the witness would have recognised the suspect: DPP v Donald [199] NSWSC 949.

Evidence that goes to the identity of an offender is not, for that reason alone, evidence of identification: Bradshaw v State of Tasmania [2009] TASSC 39.

In R v Festa (2001) 208 CLR 593 , McHugh J drew a distinction between identification and mere similarity evidence, and suggested that warnings were not necessary for the latter. While this would appear to fit under the definition of identification evidence (discussed below) evidence of resemblance or similarity has been held not to be this kind of evidence - Dunford J [at 18]:

18 Although evidence which is not a positive identification, such as evidence that someone looked “similar to” or “like” the offender is not, standing by itself, sufficient to satisfy a jury of the identity of the offender beyond reasonable doubt: Pitkin v The Queen (1995) 69 ALJR 612, that does not mean that evidence of the general appearance or characteristics of an accused as similar to that of the person who committed the crime, sometimes referred to as “circumstantial identification evidence”, is not inadmissible, being proof of a circumstance usually, but not always, weak which with other evidence may point to the accused as the person who committed the crime: Festa v The Queen (2001) 208 CLR 593 at [56].

Recognition evidence

In R v Spero (2006) 13 VR 225, the Court of Appeal drew together earlier decisions (Davies & Cody v The King (1937) 57 CLR 170; R v Marijancevic (1993) A Crim R 272; The Queen v Lovett [2006] VSCA 5) that distinguish identification and recognition evidence. Where a person is well known to the witness the common law wariness that usually attaches to identification evidence does not apply. However, the definition of identification evidence provided in the Evidence Act 2008 suggests both identification and recognition evidence should be treated in the same way. Spigelman CJ in Trudgett v R [2008] NSWCCA 62 noted a literal approach could produce "absurd" consequences, and that the reliability of the evidence would turn upon the particular facts of the case, not its category..

Identification evidence

The definition of identification evidence is provided in the Dictionary.

Identification evidence does not include the production of a computer-generated or "artist's impression" of an offender, as such a product does not assert a resemblance to the accused (that will be a question for the jury: R v Kirby [2000] NSWCCA 330 [at 46]).

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103. Exception - cross-examination as to credibility

103. Exception - cross-examination as to credibility

(1) The credibility rule does not apply to evidence adduced in cross-examination of a witness if the evidence could substantially affect the assessment of the credibility of the witness.

(2) Without limiting the matters to which the court may have regard for the purposes of subsection (1), it is to have regard to-

(a) whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth; and

(b) the period that has elapsed since the acts or events to which the evidence relates were done or occurred.

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99. Requirements for notices

99. Requirements for notices

Notices given under section 97 or 98 are to be given in accordance with any
regulations or rules of court made for the purposes of this section.

In Regina v Harker [2004] NSWCCA 427, the NSW Court of Criminal Appeal ruled that the two primary considerations to the adduction of tendency and coincidence evidence are the probative value of the evidence any prejudice caused to the respondent by the failure of the Crown to give reasonable notice in accordance with s 97(1)(a).

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100. Court may dispense with notice requirements

100. Court may dispense with notice requirements

(1) The court may, on the application of a party, direct that the tendency rule is not to apply to particular tendency evidence despite the party's failure to give notice under section 97.

(2) The court may, on the application of a party, direct that the coincidence rule is not to apply to particular coincidence evidence despite the party's failure to give notice under section 98.

(3) The application may be made either before or after the time by which the party would, apart from this section, be required to give, or to have given, the notice.

(4) In a civil proceeding, the party's application may be made without notice of it having been given to one or more of the other parties.

(5) The direction-

(a) is subject to such conditions (if any) as the court thinks fit; and

(b) may be given either at or before the hearing.

(6) Without limiting the court's power to impose conditions under this section, those conditions may include one or more of the following-

(a) a condition that the party give notice of its intention to adduce the evidence to a specified party, or to each other party other than a specified party;

(b) a condition that the party give such notice only in respect of specified tendency evidence, or all tendency evidence that the party intends to adduce other than specified tendency evidence;

(c) a condition that the party give such notice only in respect of specified coincidence evidence, or all coincidence evidence that the party intends to adduce other than specified coincidence evidence.

The term coincidence evidence is defined in Part 1 of the Dictionary.

In Regina v Harker [2004] NSWCCA 427, the NSW Court of Criminal Appeal ruled that the two primary considerations to the adduction of tendency and coincidence evidence are the probative value of the evidence any prejudice caused to the respondent by the failure of the Crown to give reasonable notice in accordance with s 97(1)(a).

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98. The coincidence rule

98. The coincidence rule

(1) Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless-

(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence; and

(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

Note

One of the events referred to in subsection (1) may be an event the occurrence of which is a fact in issue in the proceeding.

(2) Subsection (1)(a) does not apply if-

(a) the evidence is adduced in accordance with any directions made by the court under section 100; or

(b) the evidence is adduced to explain or contradict coincidence evidence adduced by another party.

Note

Other provisions of this Act, or of other laws, may operate as exceptions to the coincidence rule.

The touchstone of admissibility under s 98(1) is similarity: PNJ v DPP [2010] VSCA 88 [at 8]. In CGL v Director of Public Prosecutions [2010] VSCA 26 (in which the same issue arose on an interlocutory appeal) the prosecution conceded that the correct approach to assessing the probative significance of asserted similarities was to be found in the judgment of Winneke P in R v Papamitrou (2004) VR 375 (a pre-Evidence Act decision). In PNG v DPP, Maxwell P, Buchanan and Bongiorno JJA said [at 19 and 20],

19 It is, in our view, a mistake to treat as relevant similarities for this purpose features of the alleged offending which reflect circumstances outside the accused’s control. In this case, a number of the asserted similarities simply reflected the setting in which the offending occurred. Each of the complainants was detained in the Centre. The limited age range of those eligible for such detention accounts for the similarity in ages, as counsel for the applicant pointed out. Likewise, the location of the alleged offending – either in the bedroom of the complainant or in the applicant’s bedroom – reflected the custodial setting. The present case is quite different from that dealt with by Winneke P in Papamitrou, where the accused was able to choose the various locations for the individual sexual acts, and used ‘pretexts to isolate the girls from the company of others ...’.

20 To qualify as a relevant similarity in circumstances such as these, there must be something distinctive about the way in which the accused allegedly took advantage of the setting or context. In the present case, senior counsel for the Crown did not seek to identify any such distinctive behaviour, and we were not persuaded that there was any.

The use of a table drawn up by the Crown for assessing the asserted similarities was commended.

The Court of Appeal affirmed that enquiry into the possibility of 'contamination' (concoction between apparently unconnected complainants) is a necessary part of determining if evidence has significant probative value under s 98(1)(b), following AE v R [2008] NSWCCA 52 [at 44].

The identically-composed Court of Appeal had laid out [at 22] the steps it used for the assessment of coincidence evidence in CGL v DPP [2010] VSCA 26:

22 Accordingly, the questions to be addressed in relation to coincidence evidence are as follows:

1. Are the similarities in the specified events and/or in the circumstances in which they occurred such that it is improbable that the events occurred coincidentally?

2. If so, would the evidence of those events and circumstances tend to prove that the accused:

(a) did the specified act; or

(b) had the specified state of mind

where doing that act or having that state of mind is a fact in issue or is relevant to a fact in issue?

3. If so, does the evidence have significant probative value, either by itself or having regard to other evidence adduced or ought to be adduced by the prosecution?

4. If so, does the probative value of the evidence substantially outweigh any prejudicial effect it may have on the accused?

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92. Exceptions

92. Exceptions

(1) Section 91(1) does not prevent the admission or use of evidence of the grant of probate, letters of administration or a similar order of a court to prove-

(a) the death, or date of death, of a person; or

(b) the due execution of a testamentary document.

(2) In a civil proceeding, section 91(1) does not prevent the admission or use of evidence that a party, or a person through or under whom a party claims, has been convicted of an offence, not being a conviction-

(a) in respect of which a review or appeal (however described) has been instituted but not finally determined; or

(b) that has been quashed or set aside; or

(c) in respect of which a pardon has been given.

(3) The hearsay rule and the opinion rule do not apply to evidence of a kind referred to in this section.

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91. Exclusion of evidence of judgments and convictions

91. Exclusion of evidence of judgments and convictions

(1) Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.

(2) Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose.

Note

Section 178 (Convictions, acquittals and other judicial proceedings) provides for certificate evidence of decisions.

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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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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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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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78A Exception - Aboriginal and Torres Strait Islander traditional laws and customs

78A. Exception - Aboriginal and Torres Strait Islander traditional laws and customs

The opinion rule does not apply to evidence of an opinion expressed by a member of an Aboriginal or Torres Strait Islander group about the existence or non-existence, or the content, of the traditional laws and customs of the group.

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78. Exception - lay opinions

78. Exception - lay opinions

The opinion rule does not apply to evidence of an opinion expressed by a
person if-

(a) the opinion is based on what the person saw, heard or otherwise perceived about a matter or event; and

(b) evidence of the opinion is necessary to obtain an adequate account or understanding of the person's perception of the matter or event.

'Necessary' in the context of (b) does not refer to absolute necessity: Jackson v Lithgow City Council [2010] NSWCA 136. Allsop P noted what had been written in Odgers Uniform Evidence Law (2008, 8th Ed, Lawbook Co, p 302) prior to the matter going to the High Court, but found that no distinction need be drawn between an opinion only being a 'compendious description' of what was perceived and an opinion which 'actually draws an inference' from what was perceived.

Basten JA (agreeing with Allsop P and Grove J) said [at 71],

71 When used in the Evidence Act, the term “necessary” connotes a higher hurdle to surmount than that which is ‘helpful’, ‘convenient’ or ‘desirable’, but does not require absolute necessity, in the sense of being the sole means of proof. Whether the exception is satisfied in a particular case may need to take account of the purpose or purposes underlying the general exclusion and the purpose of the exception.

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72. Exception - Aboriginal and Torres Strait Islander traditional laws and customs

72. Exception - Aboriginal and Torres Strait Islander traditional laws and customs

The hearsay rule does not apply to evidence of a representation about the existence or non-existence, or the content, of the traditional laws and customs of an Aboriginal or Torres Strait Islander group.

Note

Section 72 formerly provided an exception for contemporaneous statements about a person's health etc. Such provision can now be found in section 66A.

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71. Exception - electronic communications

71. Exception - electronic communications

The hearsay rule does not apply to a representation contained in a document
recording an electronic communication so far as the representation is a
representation as to-

(a) the identity of the person from whom or on whose behalf the communication was sent; or

(b) the date on which or the time at which the communication was sent; or

(c) the destination of the communication or the identity of the person to whom the communication was addressed.

Notes

1. Division 3 of Part 4.3 contains presumptions about electronic
communications.

2. Section 182 of the Commonwealth Act gives section 71 of the
Commonwealth Act a wider application in relation to Commonwealth records.

3. Electronic communication is defined in the Dictionary.

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69. Exception - business records

69. Exception - business records

(1) This section applies to a document that-

(a) either-

(i) is or forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a business; or

(ii) at any time was or formed part of such a record; and

(b) contains a previous representation made or recorded in the document in the course of, or for the purposes of, the business.

(2) The hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made-

(a) by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact; or

(b) on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact.

(3) Subsection (2) does not apply if the representation-

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

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

(4) If-

(a) the occurrence of an event of a particular kind is in question; and

(b) in the course of a business, a system has been followed of making and keeping a record of the occurrence of all events of that kind-

the hearsay rule does not apply to evidence that tends to prove that there is no record kept, in accordance with that system, of the occurrence of the event.

(5) For the purposes of this section, a person is taken to have had personal knowledge of a fact if the person's knowledge of the fact was or might reasonably be supposed to have been based on what the person saw, heard or otherwise perceived (other than a previous representation made by a person about the fact).

Note

1. Sections 48, 49, 50, 146, 147 and 150(1) are relevant to the mode of proof, and authentication, of business records.

2. Section 182 of the Commonwealth Act gives section 69 of the Commonwealth Act a wider application in relation to Commonwealth records.

The Dictionary provides that an asserted fact is defined at sub-s 59(1).

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

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