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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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.

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