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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Evidence Amendment Bill 2007
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendments to Evidence Act 1995 No 25 2
4 Amendment of other Acts 2
5 Repeal of Acts 2
Schedule 1 Amendments to Evidence Act 1995 3
Schedule 2 Amendment of other Acts 34
I certify that this public bill, which originated in the Legislative Assembly, has
finally passed the Legislative Council and the Legislative Assembly of New
South Wales.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2007
New South Wales
Evidence Amendment Bill 2007
Act No , 2007
An Act to make miscellaneous amendments to the Evidence Act 1995; and to make
consequential amendments to the Civil Procedure Act 2005, the Criminal Procedure
Act 1986 and other Acts.
I have examined this bill and find it to correspond in all respects with the bill as
finally passed by both Houses.
Assistant Speaker of the Legislative Assembly.
Clause 1 Evidence Amendment Bill 2007
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Evidence Amendment Act 2007.
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
3 Amendments to Evidence Act 1995 No 25
The Evidence Act 1995 is amended as set out in Schedule 1.
4 Amendment of other Acts
The Acts specified in Schedule 2 are amended as set out in that
Schedule.
5 Repeal of Acts
(1) This Act is repealed on the day following the day on which all of the
provisions of this Act have commenced.
(2) The Evidence (Consequential and Other Provisions) Act 1995 is
repealed on that day.
(3) The repeal of those Acts does not, because of the operation of section
30 of the Interpretation Act 1987, affect any amendments made by those
Acts.
Page 2
Evidence Amendment Bill 2007
Amendments to Evidence Act 1995 Schedule 1
Schedule 1 Amendments to Evidence Act 1995
(Section 3)
[1] Section 4 Courts and proceedings to which Act applies
Omit "in relation" from section 4 (1).
[2] Section 4, notes
Insert after note 3:
4
See section 79 of the Judiciary Act 1903 of the Commonwealth
for the application of this Act to proceedings in a State court
exercising federal jurisdiction.
[3] Section 13
Omit the section. Insert instead:
13 Competence: lack of capacity
(1) A person is not competent to give evidence about a fact if, for any
reason (including a mental, intellectual or physical disability):
(a) the person does not have the capacity to understand a
question about the fact, or
(b) the person does not have the capacity to give an answer
that can be understood to a question about the fact,
and that incapacity cannot be overcome.
Note. See sections 30 and 31 for examples of assistance that may be
provided to enable witnesses to overcome disabilities.
(2) A person who, because of subsection (1), is not competent to give
evidence about a fact may be competent to give evidence about
other facts.
(3) A person who is competent to give evidence about a fact is not
competent to give sworn evidence about the fact if the person
does not have the capacity to understand that, in giving evidence,
he or she is under an obligation to give truthful evidence.
(4) A person who is not competent to give sworn evidence about a
fact may, subject to subsection (5), be competent to give unsworn
evidence about the fact.
(5) A person who, because of subsection (3), is not competent to give
sworn evidence is competent to give unsworn evidence if the
court has told the person:
(a) that it is important to tell the truth, and
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Evidence Amendment Bill 2007
Schedule 1 Amendments to Evidence Act 1995
(b) that he or she may be asked questions that he or she does
not know, or cannot remember, the answer to, and that he
or she should tell the court if this occurs, and
(c) that he or she may be asked questions that suggest certain
statements are true or untrue and that he or she should
agree with the statements that he or she believes are true
and should feel no pressure to agree with statements that he
or she believes are untrue.
(6) It is presumed, unless the contrary is proved, that a person is not
incompetent because of this section.
(7) Evidence that has been given by a witness does not become
inadmissible merely because, before the witness finishes giving
evidence, he or she dies or ceases to be competent to give
evidence.
(8) For the purpose of determining a question arising under this
section, the court may inform itself as it thinks fit, including by
obtaining information from a person who has relevant specialised
knowledge based on the person's training, study or experience.
[4] Section 14 Compellability: reduced capacity
Omit "be capable of hearing or understanding, or of communicating replies to,
questions on that matter" from section 14 (a).
Insert instead "have the capacity to understand a question about the matter or
to give an answer that can be understood to a question about the matter".
[5] Section 18 Compellability of spouses and others in criminal proceedings
generally
Omit "de facto spouse" from section 18 (2).
Insert instead "de facto partner".
[6] Section 20 Comment on failure to give evidence
Omit "de facto spouse" from section 20 (3) (a).
Insert instead "de facto partner".
[7] Section 20 (4) and (5) (b)
Omit "de facto spouse" wherever occurring. Insert instead "de facto partner".
[8] Section 21 Sworn evidence to be on oath or affirmation
Omit "section 13 (2)" from section 21 (2). Insert instead "section 13".
Page 4
Evidence Amendment Bill 2007
Amendments to Evidence Act 1995 Schedule 1
[9] Section 29 Manner and form of questioning witnesses and their
responses
Omit section 29 (2). Insert instead:
(2) A court may, on its own motion or on the application of the party
that called the witness, direct that the witness give evidence
wholly or partly in narrative form.
[10] Sections 33 (2) (c) and 190 (2) (a)
Omit "lawyer" wherever occurring.
Insert instead "Australian legal practitioner or legal counsel".
[11] Section 37 Leading questions
Omit "a lawyer" from section 37 (1) (c).
Insert instead "an Australian legal practitioner, legal counsel or prosecutor".
[12] Section 41
Omit the section. Insert instead:
41 Improper questions
(1) The court must disallow a question put to a witness in
cross-examination, or inform the witness that it need not be
answered, if the court is of the opinion that the question (referred
to as a disallowable question):
(a) is misleading or confusing, or
(b) is unduly annoying, harassing, intimidating, offensive,
oppressive, humiliating or repetitive, or
(c) is put to the witness in a manner or tone that is belittling,
insulting or otherwise inappropriate, or
(d) has no basis other than a stereotype (for example, a
stereotype based on the witness's sex, race, culture,
ethnicity, age or mental, intellectual or physical disability).
(2) Without limiting the matters the court may take into account for
the purposes of subsection (1), it is to take into account:
(a) any relevant condition or characteristic of the witness of
which the court is, or is made, aware, including age,
education, ethnic and cultural background, gender,
language background and skills, level of maturity and
understanding and personality, and
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Evidence Amendment Bill 2007
Schedule 1 Amendments to Evidence Act 1995
(b) any mental, intellectual or physical disability of which the
court is, or is made, aware and to which the witness is, or
appears to be, subject, and
(c) the context in which the question is put, including:
(i) the nature of the proceeding, and
(ii) in a criminal proceeding--the nature of the offence
to which the proceeding relates, and
(iii) the relationship (if any) between the witness and any
other party to the proceeding.
(3) A question is not a disallowable question merely because:
(a) the question challenges the truthfulness of the witness or
the consistency or accuracy of any statement made by the
witness, or
(b) the question requires the witness to discuss a subject that
could be considered distasteful to, or private by, the
witness.
(4) A party may object to a question put to a witness on the ground
that it is a disallowable question.
(5) However, the duty imposed on the court by this section applies
whether or not an objection is raised to a particular question.
(6) A failure by the court to disallow a question under this section, or
to inform the witness that it need not be answered, does not affect
the admissibility in evidence of any answer given by the witness
in response to the question.
Note. A person must not, without the express permission of a court, print
or publish any question that the court has disallowed under this
section--see section 195.
[13] Section 50 Proof of voluminous or complex documents
Omit section 50 (1). Insert instead:
(1) The court may, on the application of a party, direct that the party
may adduce evidence of the contents of 2 or more documents in
question in the form of a summary if the court is satisfied that it
would not otherwise be possible conveniently to examine the
evidence because of the volume or complexity of the documents
in question.
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Evidence Amendment Bill 2007
Amendments to Evidence Act 1995 Schedule 1
[14] Chapter 3, Introductory note
Omit "Part 3.11 gives courts discretions to exclude evidence".
Insert instead "Part 3.11 provides for the discretionary and mandatory
exclusion of evidence".
[15] Chapter 3, Introductory note, diagram
Omit "Should a discretion to exclude the evidence be exercised?".
Insert instead "Should a discretion to exclude the evidence be exercised or
must it be excluded?".
[16] Section 59 The hearsay rule--exclusion of hearsay evidence
Insert "it can reasonably be supposed that" after "a fact that" in section 59 (1).
[17] Section 59 (2A)
Insert after section 59 (2):
(2A) For the purposes of determining under subsection (1) whether it
can reasonably be supposed that the person intended to assert a
particular fact by the representation, the court may have regard to
the circumstances in which the representation was made.
Note. Subsection (2A) was inserted as a response to the decision of the
Supreme Court of NSW in R v Hannes (2000) 158 FLR 359.
[18] Section 59 (3), notes
Omit:
· business records (section 69)
· tags and labels (section 70)
· telecommunications (section 71)
· contemporaneous statements about a person's health etc
(section 72)
Insert instead:
· contemporaneous statements about a person's health etc
(section 66A)
· business records (section 69)
· tags and labels (section 70)
· electronic communications (section 71)
· Aboriginal and Torres Strait Islander traditional laws and
customs (section 72)
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Evidence Amendment Bill 2007
Schedule 1 Amendments to Evidence Act 1995
[19] Section 60 Exception: evidence relevant for a non-hearsay purpose
Omit "the fact intended to be asserted by the representation".
Insert instead "an asserted fact".
[20] Section 60 (2) and (3)
Insert at the end of section 60:
(2) This section applies whether or not the person who made the
representation had personal knowledge of the asserted fact
(within the meaning of section 62 (2)).
Note. Subsection (2) was inserted as a response to the decision of the
High Court of Australia in Lee v The Queen (1998) 195 CLR 594.
(3) However, this section does not apply in a criminal proceeding to
evidence of an admission.
Note. The admission might still be admissible under section 81 as an
exception to the hearsay rule if it is "first-hand" hearsay: see section 82.
[21] Section 61 Exceptions to the hearsay rule dependent on competency
Omit section 61 (1). Insert instead:
(1) This Part does not enable use of a previous representation to
prove the existence of an asserted fact if, when the representation
was made, the person who made it was not competent to give
evidence about the fact because of section 13 (1).
[22] Section 61 (2), note
Omit "section 72". Insert instead "section 66A".
[23] Section 62 Restriction to "first-hand" hearsay
Insert after section 62 (2):
(3) For the purposes of section 66A, a person has personal
knowledge of the asserted fact if it is a fact about the person's
health, feelings, sensations, intention, knowledge or state of mind
at the time the representation referred to in that section was made.
[24] Section 64 Exception: civil proceedings if maker available
Omit "if, when the representation was made, the occurrence of the asserted
fact was fresh in the memory of the person who made the representation." from
section 64 (3).
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Evidence Amendment Bill 2007
Amendments to Evidence Act 1995 Schedule 1
[25] Section 65 Exception: criminal proceedings if maker not available
Omit "if the representation was:" from section 65 (2).
Insert instead "if the representation:".
[26] Section 65 (2) (a), (b) and (c)
Insert "was" before "made" wherever occurring.
[27] Section 65 (2) (d)
Omit the paragraph. Insert instead:
(d) was:
(i) against the interests of the person who made it at the
time it was made, and
(ii) made in circumstances that make it likely that the
representation is reliable.
[28] Section 66 Exception: criminal proceedings if maker available
Insert after section 66 (2):
(2A) In determining whether the occurrence of the asserted fact was
fresh in the memory of a person, the court may take into account
all matters that it considers are relevant to the question, including:
(a) the nature of the event concerned, and
(b) the age and health of the person, and
(c) the period of time between the occurrence of the asserted
fact and the making of the representation.
Note. Subsection (2A) was inserted as a response to the decision of the
High Court of Australia in Graham v The Queen (1998) 195 CLR 606.
[29] Section 66A
Insert after section 66:
66A Exception: contemporaneous statements about a person's health
etc
The hearsay rule does not apply to evidence of a previous
representation made by a person if the representation was a
contemporaneous representation about the person's health,
feelings, sensations, intention, knowledge or state of mind.
Page 9
Evidence Amendment Bill 2007
Schedule 1 Amendments to Evidence Act 1995
[30] Section 71
Omit the section. Insert instead:
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.
[31] Section 72
Omit the section. Insert instead:
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.
[32] Section 76 The opinion rule
Insert:
· Aboriginal and Torres Strait Islander traditional laws and
customs (section 78A)
after:
· lay opinion (section 78)
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Evidence Amendment Bill 2007
Amendments to Evidence Act 1995 Schedule 1
[33] Section 78A
Insert after section 78:
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.
[34] Section 79 Exception: opinions based on specialised knowledge
Insert at the end of the section:
(2) To avoid doubt, and without limiting subsection (1):
(a) a reference in that subsection to specialised knowledge
includes a reference to specialised knowledge of child
development and child behaviour (including specialised
knowledge of the impact of sexual abuse on children and
their development and behaviour during and following the
abuse), and
(b) a reference in that subsection to an opinion of a person
includes, if the person has specialised knowledge of the
kind referred to in paragraph (a), a reference to an opinion
relating to either or both of the following:
(i) the development and behaviour of children
generally,
(ii) the development and behaviour of children who
have been victims of sexual offences, or offences
similar to sexual offences.
[35] Section 82 Exclusion of evidence of admissions that is not first-hand
Insert at the end of the section:
Note. Section 60 does not apply in a criminal proceeding to evidence of
an admission.
[36] Section 85 Criminal proceedings: reliability of admissions by defendants
Omit section 85 (1). Insert instead:
(1) This section applies only in a criminal proceeding and only to
evidence of an admission made by a defendant:
(a) to, or in the presence of, an investigating official who at
that time was performing functions in connection with the
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Evidence Amendment Bill 2007
Schedule 1 Amendments to Evidence Act 1995
investigation of the commission, or possible commission,
of an offence, or
(b) as a result of an act of another person who was, and who
the defendant knew or reasonably believed to be, capable
of influencing the decision whether a prosecution of the
defendant should be brought or should be continued.
Note. Subsection (1) was inserted as a response to the decision of the
High Court of Australia in Kelly v The Queen (2004) 218 CLR 216.
[37] Section 89 Evidence of silence
Omit "in the course of official questioning" from section 89 (1).
Insert instead "by an investigating official who at that time was performing
functions in connection with the investigation of the commission, or possible
commission, of an offence".
[38] Section 97 The tendency rule
Omit section 97 (1). Insert instead:
(1) Evidence of the character, reputation or conduct of a person, or a
tendency that a person has or had, is not admissible to prove that
a person has or had a tendency (whether because of the person's
character or otherwise) to act in a particular way, or to have a
particular state of mind 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.
[39] Section 98
Omit the section. Insert instead:
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:
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Evidence Amendment Bill 2007
Amendments to Evidence Act 1995 Schedule 1
(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.
[40] Section 102
Omit the section. Insert instead:
Division 1 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.
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Evidence Amendment Bill 2007
Schedule 1 Amendments to Evidence Act 1995
Division 2 Credibility of witnesses
102 The credibility rule
Credibility evidence about a witness is not admissible.
Notes.
1
Specific exceptions to the credibility rule are as follows:
· evidence adduced in cross-examination (sections 103
and 104)
· evidence in rebuttal of denials (section 106)
· evidence to re-establish credibility (section 108)
· evidence of persons with specialised knowledge (section
108C)
· character of accused persons (section 110)
Other provisions of this Act, or of other laws, may operate as
further exceptions.
2
Sections 108A and 108B deal with the admission of credibility
evidence about a person who has made a previous
representation but is not a witness.
[41] Section 103 Exception: cross-examination as to credibility
Omit "has substantial probative value" from section 103 (1).
Insert instead "could substantially affect the assessment of the credibility of
the witness".
[42] Section 103 (2)
Omit "in deciding whether the evidence has substantial probative value".
Insert instead "for the purposes of subsection (1)".
[43] Section 104 Further protections: cross-examination as to credibility
Insert "to credibility evidence" after "applies only" in section 104 (1).
[44] Section 104 (2)
Omit "only because it is relevant to". Insert instead "to the assessment of".
[45] Section 104 (4)
Omit the subsection. Insert instead:
(4) Leave must not be given for cross-examination by the prosecutor
under subsection (2) unless evidence adduced by the defendant
has been admitted that:
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Evidence Amendment Bill 2007
Amendments to Evidence Act 1995 Schedule 1
(a) tends to prove that a witness called by the prosecutor has a
tendency to be untruthful, and
(b) is relevant solely or mainly to the witness's credibility.
[46] Section 104 (5)
Omit "subsection (4) (b)". Insert instead "subsection (4)".
[47] Section 106
Omit the section. Insert instead:
106 Exception: rebutting denials by other evidence
(1) The credibility rule does not apply to evidence that is relevant to
a witness's credibility and that is adduced otherwise than from
the witness if:
(a) in cross-examination of the witness:
(i) the substance of the evidence was put to the witness,
and
(ii) the witness denied, or did not admit or agree to, the
substance of the evidence, and
(b) the court gives leave to adduce the evidence.
(2) Leave under subsection (1) (b) is not required if the evidence
tends to prove that the witness:
(a) is biased or has a motive for being untruthful, or
(b) has been convicted of an offence, including an offence
against the law of a foreign country, or
(c) has made a prior inconsistent statement, or
(d) is, or was, unable to be aware of matters to which his or her
evidence relates, or
(e) has knowingly or recklessly made a false representation
while under an obligation, imposed by or under an
Australian law or a law of a foreign country, to tell the
truth.
[48] Part 3.7, Division 3, heading
Insert after section 108:
Division 3 Credibility of persons who are not witnesses
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Evidence Amendment Bill 2007
Schedule 1 Amendments to Evidence Act 1995
[49] Section 108A Admissibility of evidence of credibility of person who has
made a previous representation
Omit section 108A (1). Insert instead:
(1) If:
(a) evidence of a previous representation has been admitted in
a proceeding, and
(b) the person who made the representation has not been
called, and will not be called, to give evidence in the
proceeding,
credibility evidence about the person who made the
representation is not admissible unless the evidence could
substantially affect the assessment of the person's credibility.
[50] Section 108A (2)
Omit "in deciding whether the evidence has substantial probative value".
Insert instead "for the purposes of subsection (1)".
[51] Section 108B and Part 3.7, Division 4
Insert after section 108A:
108B Further protections: previous representations of an accused who
is not a witness
(1) This section applies only in a criminal proceeding and so applies
in addition to section 108A.
(2) If the person referred to in that section is a defendant, the
credibility evidence is not admissible unless the court gives
leave.
(3) Despite subsection (2), leave is not required if the evidence is
about whether the defendant:
(a) is biased or has a motive to be untruthful, or
(b) is, or was, unable to be aware of or recall matters to which
his or her previous representation relates, or
(c) has made a prior inconsistent statement.
(4) The prosecution must not be given leave under subsection (2)
unless evidence adduced by the defendant has been admitted that:
(a) tends to prove that a witness called by the prosecution has
a tendency to be untruthful, and
(b) is relevant solely or mainly to the witness's credibility.
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Evidence Amendment Bill 2007
Amendments to Evidence Act 1995 Schedule 1
(5) A reference in subsection (4) to evidence does not include a
reference to evidence of conduct in relation to:
(a) the events in relation to which the defendant is being
prosecuted, or
(b) the investigation of the offence for which the defendant is
being prosecuted.
(6) Another defendant must not be given leave under subsection (2)
unless the previous representation of the defendant that has been
admitted includes evidence adverse to the defendant seeking
leave.
Division 4 Persons with specialised knowledge
108C Exception: evidence of persons with specialised knowledge
(1) The credibility rule does not apply to evidence given by a person
concerning the credibility of another witness if:
(a) the person has specialised knowledge based on the
person's training, study or experience, and
(b) the evidence is evidence of an opinion of the person that:
(i) is wholly or substantially based on that knowledge,
and
(ii) could substantially affect the assessment of the
credibility of the witness, and
(c) the court gives leave to adduce the evidence.
(2) To avoid doubt, and without limiting subsection (1):
(a) a reference in that subsection to specialised knowledge
includes a reference to specialised knowledge of child
development and child behaviour (including specialised
knowledge of the impact of sexual abuse on children and
their behaviour during and following the abuse), and
(b) a reference in that subsection to an opinion of a person
includes, if the person has specialised knowledge of that
kind, a reference to an opinion relating to either or both of
the following:
(i) the development and behaviour of children
generally,
(ii) the development and behaviour of children who
have been victims of sexual offences, or offences
similar to sexual offences.
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Evidence Amendment Bill 2007
Schedule 1 Amendments to Evidence Act 1995
[52] Section 112 Leave required to cross-examine about character of
accused or co-accused
Omit "is not to be". Insert instead "must not be".
[53] Section 114 Exclusion of visual identification evidence
Omit "a lawyer" from section 114 (5) wherever occurring.
Insert instead "an Australian legal practitioner or legal counsel".
[54] Section 117 Definitions
Omit paragraph (a) from the definition of client in section 117 (1).
Insert instead:
(a) a person or body who engages a lawyer to provide legal
services or who employs a lawyer (including under a
contract of service),
[55] Section 117 (1), definition of "lawyer"
Omit the definition. Insert instead:
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).
[56] Section 118 Legal advice
Omit "client or a lawyer" from section 118 (c).
Insert instead "client, lawyer or another person".
[57] Section 122
Omit the section. Insert instead:
122 Loss of client legal privilege: consent and related matters
(1) This Division does not prevent the adducing of evidence given
with the consent of the client or party concerned.
(2) Subject to subsection (5), this Division does not prevent the
adducing of evidence if the client or party concerned has acted in
a way that is inconsistent with the client or party objecting to the
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Evidence Amendment Bill 2007
Amendments to Evidence Act 1995 Schedule 1
adducing of the evidence because it would result in a disclosure
of a kind referred to in section 118, 119 or 120.
(3) Without limiting subsection (2), a client or party is taken to have
so acted if:
(a) the client or party knowingly and voluntarily disclosed the
substance of the evidence to another person, or
(b) the substance of the evidence has been disclosed with the
express or implied consent of the client or party.
(4) The reference in subsection (3) (a) to a knowing and voluntary
disclosure does not include a reference to a disclosure by a person
who was, at the time of the disclosure, an employee or agent of
the client or party, or of a lawyer of the client or party, unless the
employee or agent was authorised by the client, party or lawyer
to make the disclosure.
(5) A client or party is not taken to have acted in a manner
inconsistent with the client or party objecting to the adducing of
the evidence merely because:
(a) the substance of the evidence has been disclosed:
(i) in the course of making a confidential
communication or preparing a confidential
document, or
(ii) as a result of duress or deception, or
(iii) under compulsion of law, or
(iv) if the client or party is a body established by, or a
person holding an office under, an Australian law--
to the Minister, or the Minister of the
Commonwealth, the State or Territory,
administering the law, or part of the law, under
which the body is established or the office is held, or
(b) of a disclosure by a client to another person if the
disclosure concerns a matter in relation to which the same
lawyer is providing, or is to provide, professional legal
services to both the client and the other person, or
(c) of a disclosure to a person with whom the client or party
had, at the time of the disclosure, a common interest
relating to the proceeding or an anticipated or pending
proceeding in an Australian court or a foreign court.
(6) This Division does not prevent the adducing of evidence of a
document that a witness has used to try to revive the witness's
memory about a fact or opinion or has used as mentioned in
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Evidence Amendment Bill 2007
Schedule 1 Amendments to Evidence Act 1995
section 32 (Attempts to revive memory in court) or 33 (Evidence
given by police officers).
[58] Part 3.10, Division 1A
Omit the note under the heading to the Division.
[59] Section 126A Definitions
Insert after the definition of protected confidence in section 126A (1):
Note. This definition differs from the corresponding definition in section
126A (1) of the Commonwealth Act, which is limited to communications
to journalists.
[60] Section 126F Application of Division
Insert after section 126F (3):
Note. The Commonwealth Act does not include this subsection.
[61] Section 128
Omit the section. Insert instead:
128 Privilege in respect of self-incrimination in other proceedings
(1) This section applies if a witness objects to giving particular
evidence, or evidence on a particular matter, on the ground that
the evidence may tend to prove that the witness:
(a) has committed an offence against or arising under an
Australian law or a law of a foreign country, or
(b) is liable to a civil penalty.
(2) The court must determine whether or not there are reasonable
grounds for the objection.
(3) If the court determines that there are reasonable grounds for the
objection, the court is to inform the witness:
(a) that the witness need not give the evidence unless required
by the court to do so under subsection (4), and
(b) that the court will give a certificate under this section if:
(i) the witness willingly gives the evidence without
being required to do so under subsection (4), or
(ii) the witness gives the evidence after being required
to do so under subsection (4), and
(c) of the effect of such a certificate.
(4) The court may require the witness to give the evidence if the court
is satisfied that:
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Evidence Amendment Bill 2007
Amendments to Evidence Act 1995 Schedule 1
(a) the evidence does not tend to prove that the witness has
committed an offence against or arising under, or is liable
to a civil penalty under, a law of a foreign country, and
(b) the interests of justice require that the witness give the
evidence.
(5) If the witness either willingly gives the evidence without being
required to do so under subsection (4), or gives it after being
required to do so under that subsection, the court must cause the
witness to be given a certificate under this section in respect of
the evidence.
(6) The court is also to cause a witness to be given a certificate under
this section if:
(a) the objection has been overruled, and
(b) after the evidence has been given, the court finds that there
were reasonable grounds for the objection.
(7) In any proceeding in a NSW court or before any person or body
authorised by a law of this State, or by consent of parties, to hear,
receive and examine evidence:
(a) evidence given by a person in respect of which a certificate
under this section has been given, and
(b) any information, document or thing obtained as a direct or
indirect consequence of the person having given evidence,
cannot be used against the person. However, this does not apply
to a criminal proceeding in respect of the falsity of the evidence.
Note. This subsection differs from section 128 (7) of the Commonwealth
Act. The Commonwealth provision refers to an "Australian Court"
instead of a "NSW court".
(8) Subsection (7) has effect despite any challenge, review, quashing
or calling into question on any ground of the decision to give, or
the validity of, the certificate concerned.
(9) If a defendant in a criminal proceeding for an offence is given a
certificate under this section, subsection (7) does not apply in a
proceeding that is a retrial of the defendant for the same offence
or a trial of the defendant for an offence arising out of the same
facts that gave rise to that offence.
(10) In a criminal proceeding, this section does not apply in relation to
the giving of evidence by a defendant, being evidence that the
defendant:
(a) did an act the doing of which is a fact in issue, or
(b) had a state of mind the existence of which is a fact in issue.
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Schedule 1 Amendments to Evidence Act 1995
(11) A reference in this section to doing an act includes a reference to
failing to act.
Notes.
1
Bodies corporate cannot claim this privilege. See section 187.
2
Clause 3 of Part 2 of the Dictionary sets out what is a civil penalty.
3
The Commonwealth Act includes subsections to give effect to
certificates in relation to self-incriminating evidence under the
NSW Act in proceedings in federal and ACT courts and in
prosecutions for Commonwealth and ACT offences.
4
Subsections (8) and (9) were inserted as a response to the
decision of the High Court of Australia in Cornwell v The Queen
[2007] HCA 12 (22 March 2007).
[62] Section 128A
Insert after section 128:
128A Privilege in respect of self-incrimination--exception for certain
orders etc
(1) In this section:
disclosure order means an order made by a NSW court in a civil
proceeding requiring a person to disclose information as part of,
or in connection with, a freezing, search or other order under Part
25 of the Uniform Civil Procedure Rules 2005 but does not
include an order made by a court under the Proceeds of Crime Act
2002 of the Commonwealth or the Confiscation of Proceeds of
Crime Act 1989 or Criminal Assets Recovery Act 1990 of New
South Wales.
relevant person means a person to whom a disclosure order is
directed.
(2) If a relevant person objects to complying with a disclosure order
on the grounds that some or all of the information required to be
disclosed may tend to prove that the person:
(a) has committed an offence against or arising under an
Australian law or a law of a foreign country, or
(b) is liable to a civil penalty,
the person must:
(c) disclose so much of the information required to be
disclosed to which no objection is taken, and
(d) prepare an affidavit containing so much of the information
required to be disclosed to which objection is taken (the
privilege affidavit) and deliver it to the court in a sealed
envelope, and
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Evidence Amendment Bill 2007
Amendments to Evidence Act 1995 Schedule 1
(e) file and serve on each other party a separate affidavit
setting out the basis of the objection.
(3) The sealed envelope containing the privilege affidavit must not
be opened except as directed by the court.
(4) The court must determine whether or not there are reasonable
grounds for the objection.
(5) Subject to subsection (6), if the court finds that there are
reasonable grounds for the objection, the court must not require
the information contained in the privilege affidavit to be
disclosed and must return it to the relevant person.
(6) If the court is satisfied that:
(a) any information disclosed in the privilege affidavit may
tend to prove that the relevant person has committed an
offence against or arising under, or is liable to a civil
penalty under, an Australian law, and
(b) the information does not tend to prove that the relevant
person has committed an offence against or arising under,
or is liable to a civil penalty under, a law of a foreign
country, and
(c) the interests of justice require the information to be
disclosed,
the court may make an order requiring the whole or any part of
the privilege affidavit containing information of the kind referred
to in paragraph (a) to be filed and served on the parties.
(7) If the whole or any part of the privilege affidavit is disclosed
(including by order under subsection (6)), the court must cause
the relevant person to be given a certificate in respect of the
information referred to in subsection (6) (a).
(8) In any proceeding in a NSW court:
(a) evidence of information disclosed by a relevant person in
respect of which a certificate has been given under this
section, and
(b) evidence of any information, document or thing obtained
as a direct result or indirect consequence of the relevant
person having disclosed that information,
cannot be used against the person. However, this does not apply
to a criminal proceeding in respect of the falsity of the evidence
concerned.
(9) Subsection (8) does not prevent the use against the relevant
person of any information disclosed by a document:
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Evidence Amendment Bill 2007
Schedule 1 Amendments to Evidence Act 1995
(a) that is an annexure or exhibit to a privilege affidavit
prepared by the person in response to a disclosure order,
and
(b) that was in existence before the order was made.
(10) Subsection (8) has effect despite any challenge, review, quashing
or calling into question on any ground of the decision to give, or
the validity of, the certificate concerned.
Note. Section 87 of the Civil Procedure Act 2005 makes provision with respect
to protection against self-incrimination in relation to certain matters to which this
section does not apply.
[63] Section 131A
Insert before section 132:
131A Application of Division to preliminary proceedings of courts
(1) If:
(a) a person is required by a disclosure requirement to give
information, or to produce a document, which would result
in the disclosure of a communication, a document or its
contents or other information of a kind referred to in
Division 1, 1A or 3, and
(b) the person objects to giving that information or providing
that document,
the court must determine the objection by applying the provisions
of this Part (other than sections 123 and 128) with any necessary
modifications as if the objection to giving information or
producing the document were an objection to the giving or
adducing of evidence.
(2) In this section, disclosure requirement means a process or order
of a court that requires the disclosure of information or a
document and includes the following:
(a) a summons or subpoena to produce documents or give
evidence,
(b) pre-trial discovery,
(c) non-party discovery,
(d) interrogatories,
(e) a notice to produce,
(f) a request to produce a document under Division 1 of Part
4.6.
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Evidence Amendment Bill 2007
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[64] Part 3.11, heading
Omit the heading. Insert instead:
Part 3.11 Discretionary and mandatory exclusions
[65] Section 139 Cautioning of persons
Omit "official questioning" from section 139 (2). Insert instead "questioning".
[66] Section 148 Evidence of certain acts of justices, Australian lawyers and
notaries public
Omit "lawyer" where firstly occurring. Insert instead "Australian lawyer".
[67] Section 148 (a)
Omit "a lawyer". Insert instead "an Australian lawyer".
[68] Section 161
Omit the section. Insert instead:
161 Electronic communications
(1) If a document purports to contain a record of an electronic
communication other than one referred to in section 162, it is
presumed (unless evidence sufficient to raise doubt about the
presumption is adduced) that the communication:
(a) was sent or made in the form of electronic communication
that appears from the document to have been the form by
which it was sent or made, and
(b) was sent or made by or on behalf of the person by or on
whose behalf it appears from the document to have been
sent or made, and
(c) was sent or made on the day on which, at the time at which
and from the place from which it appears from the
document to have been sent or made, and
(d) was received at the destination to which it appears from the
document to have been sent, and
(e) if it appears from the document that the sending of the
communication concluded at a particular time--was
received at that destination at that time.
(2) A provision of subsection (1) does not apply if:
(a) the proceeding relates to a contract, and
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Evidence Amendment Bill 2007
Schedule 1 Amendments to Evidence Act 1995
(b) all the parties to the proceeding are parties to the contract,
and
(c) the provision is inconsistent with a term of the contract.
Note. Section 182 of the Commonwealth Act gives section 161 of the
Commonwealth Act a wider application in relation to Commonwealth
records.
[69] Part 4.5, heading
Insert "and information" after "Warnings".
[70] Section 165 Unreliable evidence
Omit "official questioning" from section 165 (1) (f).
Insert instead "questioning by an investigating official".
[71] Section 165 (6)
Omit the subsection. Insert instead:
(6) Subsection (2) does not permit a judge to warn or inform a jury
in proceedings before it in which a child gives evidence that the
reliability of the child's evidence may be affected by the age of
the child. Any such warning or information may be given only in
accordance with section 165A (2) and (3).
[72] Sections 165A and 165B
Omit the sections. Insert instead:
165A Warnings in relation to children's evidence
(1) A judge in any proceeding in which evidence is given by a child
before a jury must not do any of the following:
(a) warn the jury, or suggest to the jury, that children as a class
are unreliable witnesses,
(b) warn the jury, or suggest to the jury, that the evidence of
children as a class is inherently less credible or reliable, or
requires more careful scrutiny, than the evidence of adults,
(c) give a warning, or suggestion to the jury, about the
unreliability of the particular child's evidence solely on
account of the age of the child,
(d) in the case of a criminal proceeding--give a general
warning to the jury of the danger of convicting on the
uncorroborated evidence of a witness who is a child.
(2) Subsection (1) does not prevent the judge, at the request of a
party, from:
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Evidence Amendment Bill 2007
Amendments to Evidence Act 1995 Schedule 1
(a) informing the jury that the evidence of the particular child
may be unreliable and the reasons why it may be
unreliable, and
(b) warning or informing the jury of the need for caution in
determining whether to accept the evidence of the
particular child and the weight to be given to it,
if the party has satisfied the court that there are circumstances
(other than solely the age of the child) particular to the child that
affect the reliability of the child's evidence and that warrant the
giving of a warning or the information.
(3) This section does not affect any other power of a judge to give a
warning to, or to inform, the jury.
165B Delay in prosecution
(1) This section applies in a criminal proceeding in which there is a
jury.
(2) If the court, on application by a party, is satisfied that the
defendant has suffered a significant forensic disadvantage
because of the consequences of delay, the court must inform the
jury of the nature of that disadvantage and the need to take that
disadvantage into account when considering the evidence.
(3) The judge need not comply with subsection (2) if there are good
reasons for not doing so.
(4) It is not necessary that a particular form of words be used in
informing the jury of the nature of the significant forensic
disadvantage suffered and the need to take that disadvantage into
account, but the judge must not in any way suggest to the jury that
it would be dangerous or unsafe to convict the defendant solely
because of the delay or the forensic disadvantage suffered
because of the consequences of the delay.
(5) The judge must not warn or inform the jury about any forensic
disadvantage the defendant may have suffered because of delay
except in accordance with this section, but this section does not
affect any other power of the judge to give any warning to, or to
inform, the jury.
(6) For the purposes of this section:
(a) delay includes delay between the alleged offence and its
being reported, and
(b) significant forensic disadvantage is not to be regarded as
being established by the mere existence of a delay.
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Evidence Amendment Bill 2007
Schedule 1 Amendments to Evidence Act 1995
(7) For the purposes of this section, the factors that may be regarded
as establishing a significant forensic disadvantage include, but
are not limited to, the following:
(a) the fact that any potential witnesses have died or are not
able to be located,
(b) the fact that any potential evidence has been lost or is
otherwise unavailable.
[73] Section 184 Accused may admit matters and give consents
Omit ", if advised to do so by his or her lawyer".
[74] Section 184 (2)
Insert at the end of section 184:
(2) A defendant's admission or consent is not effective for the
purposes of subsection (1) unless:
(a) the defendant has been advised to do so by his or her
Australian legal practitioner or legal counsel, or
(b) the court is satisfied that the defendant understands the
consequences of making the admission or giving the
consent.
[75] Section 189 The voir dire
Omit "Section 128 (8)" from section 189 (6).
Insert instead "Section 128 (10)".
[76] Section 191 Agreements as to facts
Omit "lawyers" from section 191 (3) (a).
Insert instead "Australian legal practitioners, legal counsel or prosecutors".
[77] Section 192A
Insert after section 192:
192A Advance rulings and findings
Where a question arises in any proceedings, being a question
about:
(a) the admissibility or use of evidence proposed to be
adduced, or
(b) the operation of a provision of this Act or another law in
relation to evidence proposed to be adduced, or
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Evidence Amendment Bill 2007
Amendments to Evidence Act 1995 Schedule 1
(c) the giving of leave, permission or direction under section
192,
the court may, if it considers it to be appropriate to do so, give a
ruling or make a finding in relation to the question before the
evidence is adduced in the proceedings.
[78] Section 198
Insert after section 197:
198 Savings, transitional and other provisions
Schedule 2 has effect.
[79] Schedule 2
Insert after Schedule 1:
Schedule 2 Savings, transitional and other
provisions
(Section 198)
Part 1 Preliminary
Note. The Commonwealth Act does not include an equivalent provision to Schedule 2.
There are provisions to the same effect as Part 2 of Schedule 2 in the Evidence
(Transitional Provisions and Consequential Amendments) Act 1995 of the
Commonwealth.
1 Regulations
(1) The regulations may contain provisions of a savings or
transitional nature consequent on the enactment of the following
Acts:
this Act
Evidence on Commission Act 1995
Evidence Amendment Act 2007
(2) Any such provision may, if the regulations so provide, take effect
from the date of assent to the Act concerned or a later date.
(3) To the extent to which any such provision takes effect from a date
that is earlier than the date of its publication in the Gazette, the
provision does not operate so as:
(a) to affect, in a manner prejudicial to any person (other than
the State or an authority of the State), the rights of that
person existing before the date of its publication, or
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Evidence Amendment Bill 2007
Schedule 1 Amendments to Evidence Act 1995
(b) to impose liabilities on any person (other than the State or
an authority of the State) in respect of anything done or
omitted to be done before the date of its publication.
(4) Regulations made as referred to in subclause (1) may have effect
despite the terms of any savings or transitional provision
contained in this Schedule, if the regulations so provide.
[80] Schedule 2
Insert after Part 2 (as to be inserted by Schedule 2.4):
Part 3 Provisions consequent on the enactment
of the Evidence Amendment Act 2007
16 Definition
In this Part:
the amending Act means the Evidence Amendment Act 2007.
17 Proceedings already begun
(1) Subject to this Part, an amendment made to this Act by the
amending Act does not apply in relation to proceedings the
hearing of which began before the commencement of the
amendment.
(2) This Act, as in force immediately before the commencement of
the amendment, continues to apply in relation to proceedings the
hearing of which began before that commencement.
18 Admissions
(1) The amendment made by the amending Act to section 85 does not
apply in relation to admissions made before the commencement
of the amendment.
(2) That section, as in force immediately before the commencement
of the amendment, continues to apply in relation to admissions
made before that commencement.
19 Failure or refusal to answer questions etc
(1) The amendment made by the amending Act to section 89 does not
apply in relation to any failure or refusal, before the
commencement of the amendment:
(a) to answer one or more questions, or
(b) to respond to a representation.
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Evidence Amendment Bill 2007
Amendments to Evidence Act 1995 Schedule 1
(2) That section, as in force immediately before the commencement
of the amendment, continues to apply in relation to any such
refusal or failure before that commencement.
20 Prior operation of notice provisions
If, before the commencement of an amendment made to section
97 or 98 by the amending Act, a notice of the kind referred to in
section 97 or 98 is given:
(a) in the circumstances provided for in the section concerned,
and
(b) in accordance with such requirements (if any) as would
apply to the giving of the notice under that section after
that commencement,
the notice is taken to have been given under that section as in
force after that commencement.
21 Disclosure orders
Section 128A, as inserted by the amending Act, does not apply in
relation to any order made before the commencement of that
section.
22 Disclosure requirements
Section 131A, as inserted by the amending Act, does not apply in
relation to any disclosure requirement made before the
commencement of that section.
[81] Dictionary
Insert in alphabetical order in Part 1:
Australian lawyer has the meaning it has in the Legal Profession
Act 2004.
Australian legal practitioner has the meaning it has in the Legal
Profession Act 2004.
Australian practising certificate has the meaning it has in the
Legal Profession Act 2004.
Australian-registered foreign lawyer has the meaning it has in
the Legal Profession Act 2004.
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Evidence Amendment Bill 2007
Schedule 1 Amendments to Evidence Act 1995
legal counsel means an Australian lawyer employed in or by a
government agency or other body who by law is exempted from
holding an Australian practising certificate, or who does not
require an Australian practising certificate, to engage in legal
practice in the course of that employment.
Note. Examples of legal counsel are in-house counsel and government
solicitors.
overseas-registered foreign lawyer has the meaning it has in Part
2.7 of the Legal Profession Act 2004.
[82] Dictionary, Part 1
Insert in alphabetical order:
credibility evidence is defined in section 101A.
[83] Dictionary, Part 1, definition of "de facto spouse"
Omit the definition. Insert instead:
de facto partner is defined in clause 11 of Part 2 of this
Dictionary.
[84] Dictionary, Part 1
Insert in alphabetical order:
electronic communication has the same meaning as it has in the
Electronic Transactions Act 2000.
[85] Dictionary, Part 1
Omit the definition of lawyer.
[86] Dictionary, Part 1
Omit "(including such a court exercising federal jurisdiction)" from the
definition of NSW court.
[87] Dictionary, Part 1, definition of "official questioning"
Omit the definition.
[88] Dictionary, Part 1
Insert in alphabetical order:
prosecutor means a person who institutes or is responsible for the
conduct of a prosecution.
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Evidence Amendment Bill 2007
Amendments to Evidence Act 1995 Schedule 1
[89] Dictionary, Part 1
Insert in alphabetical order:
traditional laws and customs of an Aboriginal or Torres Strait
Islander group (including a kinship group) includes any of the
traditions, customary laws, customs, observances, practices,
knowledge and beliefs of the group.
[90] Dictionary, Part 2
Insert at the end of the Part:
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.
Page 33
Evidence Amendment Bill 2007
Schedule 2 Amendment of other Acts
Schedule 2 Amendment of other Acts
(Section 4)
2.1 Civil Procedure Act 2005 No 28
Section 87 Protection against self-incrimination in relation to
interlocutory matters
Insert after section 87 (2):
(2A) This section does not apply in circumstances in which section
128A of the Evidence Act 1995 applies.
2.2 Coroners Act 1980 No 27
[1] Section 4 Definitions
Insert in alphabetical order in section 4 (1):
Australian law has the same meaning as it has in the Evidence
Act 1995.
civil penalty has the same meaning as it has in the Evidence Act
1995.
[2] Section 33 Rules of procedure and evidence
Insert "against or arising under an Australian law or a law of a foreign country
or which renders or tends to render the witness liable to a civil penalty" after
"offence".
[3] Section 33AA
Omit the section. Insert instead:
33AA Privilege in respect of self-incrimination
(1) This section applies if a witness at an inquest or inquiry held by
a coroner who is a Magistrate objects to giving particular
evidence, or evidence on a particular matter, on the ground that
the evidence may tend to prove that the witness:
(a) has committed an offence against or arising under an
Australian law or a law of a foreign country, or
(b) is liable to a civil penalty.
(2) The coroner must determine whether or not there are reasonable
grounds for the objection.
(3) If the coroner determines that there are reasonable grounds for
the objection, the coroner is to inform the witness:
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Evidence Amendment Bill 2007
Amendment of other Acts Schedule 2
(a) that the witness need not give the evidence unless required
by the coroner to do so under subsection (4), and
(b) that the coroner will give a certificate under this section if:
(i) the witness willingly gives the evidence without
being required to do so under subsection (4), or
(ii) the witness gives the evidence after being required
to do so under subsection (4), and
(c) of the effect of such a certificate.
(4) The coroner may require the witness to give the evidence if the
coroner is satisfied that:
(a) the evidence does not tend to prove that the witness has
committed an offence against or arising under, or is liable
to a civil penalty under, a law of a foreign country, and
(b) the interests of justice require that the witness give the
evidence.
(5) If the witness either willingly gives the evidence without being
required to do so under subsection (4), or gives it after being
required to do so under that subsection, the coroner must cause
the witness to be given a certificate under this section in respect
of the evidence.
(6) The coroner is also to cause a witness to be given a certificate
under this section if:
(a) the objection has been overruled, and
(b) after the evidence has been given, the coroner finds that
there were reasonable grounds for the objection.
(7) In any proceeding in a NSW court within the meaning of the
Evidence Act 1995 or before any person or body authorised by a
law of this State, or by consent of parties, to hear, receive and
examine evidence:
(a) evidence given by a person in respect of which a certificate
under this section has been given, and
(b) any information, document or thing obtained as a direct or
indirect consequence of the person having given evidence,
cannot be used against the person. However, this does not apply
to a criminal proceeding in respect of the falsity of the evidence.
(8) Subsection (7) has effect despite any challenge, review, quashing
or calling into question on any ground of the decision to give, or
the validity of, the certificate concerned.
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Evidence Amendment Bill 2007
Schedule 2 Amendment of other Acts
(9) A reference in this section to doing an act includes a reference to
failing to act.
(10) A certificate under this section can only be given in respect of
evidence that is required to be given by a natural person.
[4] Schedule 3 Savings and transitional provisions
Insert at the end of clause 1A (1):
Evidence Amendment Act 2007, but only to the extent that it
amends this Act
[5] Schedule 3
Insert after clause 14:
15 Inquests and inquiries commenced before Evidence Amendment
Act 2007
(1) In this clause:
amending Act means the Evidence Amendment Act 2007.
(2) Section 33, as amended by the amending Act, does not apply in
respect of an inquest or inquiry commenced to be held before the
amendment of that section by that Act.
(3) That section, as in force immediately before it was amended,
continues to apply in respect of such an inquest or inquiry.
(4) Section 33AA, as substituted by the amending Act, does not
apply in respect of an inquest or inquiry commenced to be held
before the substitution of that section by that Act.
(5) Section 33AA, as in force immediately before that substitution,
continues to apply in respect of such an inquest or inquiry.
2.3 Criminal Procedure Act 1986 No 209
[1] Section 275A Improper questions
Omit the section.
[2] Section 294 Warning to be given by Judge in relation to lack of complaint
in certain sexual offence proceedings
Omit section 294 (3)(5).
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Evidence Amendment Bill 2007
Amendment of other Acts Schedule 2
[3] Schedule 2 Savings, transitional and other provisions
Insert at the end of clause 1 (1):
Evidence Amendment Act 2007, to the extent that it amends this
Act
[4] Schedule 2
Insert at the end of the Schedule (with appropriate Part and clause numbers):
Part Provisions consequent on enactment of
Evidence Amendment Act 2007
Improper questions and certain warnings
(1) An amendment made to section 275A or 294 by the Evidence
Amendment Act 2007 does not apply in relation to any proceeding
the hearing of which began before the commencement of the
amendment.
(2) Sections 275A and 294, as in force immediately before the
commencement of the amendment, continue to apply to
proceedings the hearing of which began before that amendment.
2.4 Evidence (Consequential and Other Provisions) Act 1995
No 27
Schedule 2 Savings, transitional and other provisions
Omit the Schedule.
Transfer clauses 215 of the Schedule to the Evidence Act 1995 as clauses
215 of Part 2 of Schedule 2 to that Act (as inserted by this Act) after the
following heading and clause:
Part 2 Provisions consequent on the enactment
of this Act
1A Transferred provisions
(1) This clause is taken to have commenced on 1 September 1995
(the date of commencement of this Act other than Part 1.1 and the
Dictionary).
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Evidence Amendment Bill 2007
Schedule 2 Amendment of other Acts
(2) This Part is a transferred provision to which section 30A of the
Interpretation Act 1987 applies.
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