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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Evidence Legislation Amendment
Bill 2001
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Evidence Act 1995 No 25 2
4 Amendment of Evidence (Children) Act 1997 No 143 2
Schedules
1 Amendment of Evidence Act 1995 3
2 Amendment of Evidence (Children) Act 1997 6
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, , 2001
New South Wales
Evidence Legislation Amendment
Bill 2001
Act No , 2001
An Act to make amendments to the Evidence Act 1995 and the Evidence
(Children) Act 1997 in respect of the taking of oaths and the making of
affirmations and in respect of the giving of evidence by children; and for other
purposes.
I have examined this Bill, and find it to correspond in all respects with the Bill as
finally passed by both Houses.
Chairman of Committees of the Legislative Assembly.
Clause 1 Evidence Legislation Amendment Bill 2001
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Evidence Legislation Amendment Act 2001.
2 Commencement
This Act commences on a day or days to be appointed by
proclamation.
3 Amendment of Evidence Act 1995 No 25
The Evidence Act 1995 is amended as set out in Schedule 1.
4 Amendment of Evidence (Children) Act 1997 No 143
The Evidence (Children) Act 1997 is amended as set out in Schedule 2.
Page 2
Evidence Legislation Amendment Bill 2001
Amendment of Evidence Act 1995 Schedule 1
Schedule 1 Amendment of Evidence Act 1995
(Section 3)
[1] Section 22 Interpreters to act on oath or affirmation
Insert after section 22 (1):
(1A) An oath taken, or an affirmation made, by a person before
acting as an interpreter on a day is taken for the purposes of
subsection (1) to be an oath taken or affirmation made by that
person for the purposes of any subsequent proceedings in that
court on that day in which the person acts as an interpreter.
[2] Section 22
Insert at the end of the section:
Note. The Commonwealth Act does not include subsection (1A).
[3] Section 23 Choice of oath or affirmation
Insert ", unless the court is satisfied that the person has already been
informed or knows that he or she has the choice" after "choice" in
section 23 (2).
[4] Section 23
Insert at the end of the section:
Note. Subsection (2) differs from section 23 of the Commonwealth Act.
[5] Section 24A
Insert after section 24:
24A Alternative oath
(1) A person may take an oath even if the person's religious or
spiritual beliefs do not include a belief in the existence of a
god.
(2) Despite anything to the contrary in this Act, the form of oath
taken by a person:
(a) need not include a reference to a god, and
Page 3
Evidence Legislation Amendment Bill 2001
Schedule 1 Amendment of Evidence Act 1995
(b) may instead refer to the basis of the person's beliefs in
accordance with a form prescribed by the regulations.
Note. The Commonwealth Act does not include an equivalent provision
to section 24A.
[6] Section 165 Unreliable evidence
Insert after section 165 (5):
(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 165B.
[7] Section 165
Insert at the end of the section:
Note. The Commonwealth Act does not include subsection (6).
[8] Sections 165A and 165B
Insert after section 165:
165A Warnings about children's evidence
(1) A judge in any proceeding in which evidence is given by a
child must not warn a jury, or make any suggestion to a jury,
that children as a class are unreliable witnesses.
(2) Without limiting subsection (1), that subsection prohibits a
general warning to a jury of the danger of convicting on the
uncorroborated evidence of any child witness.
(3) Sections 164 and 165 are subject to this clause.
Note. The Commonwealth Act does not include an equivalent provision
to section 165A.
165B Warnings about a particular child's evidence
(1) This section applies to evidence given by a child in proceedings
before a jury.
Page 4
Evidence Legislation Amendment Bill 2001
Amendment of Evidence Act 1995 Schedule 1
(2) A judge in any proceedings in which evidence to which this
section applies is given may:
(a) warn or inform the jury that the evidence of the
particular child may be unreliable because of the child's
age, and
(b) warn 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.
(3) Such a warning or information may be given only:
(a) if a party has requested that it be given, and
(b) if that party has satisfied the court that there are
circumstances particular to that child in those
proceedings that affect the reliability of the child's
evidence and that warrant the giving of a warning or the
information.
(4) This section does not affect any other power of a judge to give
a warning to, or to inform, the jury.
Note. The Commonwealth Act does not include an equivalent provision
to section 165B.
Page 5
Evidence Legislation Amendment Bill 2001
Schedule 2 Amendment of Evidence (Children) Act 1997
Schedule 2 Amendment of Evidence (Children)
Act 1997
(Section 4)
[1] Section 28 Children have a right to alternative arrangements for giving
evidence when accused is unrepresented
Omit "any" from section 28 (3) where secondly occurring.
Insert instead "only the".
[2] Section 28 (3A)
Insert after section 28 (3):
(3A) A person appointed under this section, when acting in the
course of his or her appointment, must not independently give
the accused or the defendant legal or other advice.
Page 6
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