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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
LEGISLATIVE COUNCIL
Acts Amendment (Evidence) Bill 1999
A Bill for
An Act to amend --
· the Evidence Act 1906;
· the Justices Act 1902;
· the Children's Court of Western Australia Act 1988; and
· The Criminal Code.
The Parliament of Western Australia enacts as follows:
page 1
1--1
Acts Amendment (Evidence) Bill 1999
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This Act may be cited as the Acts Amendment (Evidence)
Act 1999.
page 2
Acts Amendment (Evidence) Bill 1999
Evidence Act 1906 amended Part 2
Preliminary Division 1
s. 2
Part 2 -- Evidence Act 1906 amended
Division 1 -- Preliminary
2. Act amended by this Part
The amendments in this Part are to the Evidence Act 1906*.
5 [* Reprinted as at 10 September 1996.
For subsequent amendments see 1998 Index to Legislation of
Western Australia, Table 1, p. 86 and Act No. 26 of 1999.]
Division 2 -- General amendments
3. Section 3 amended
10 Section 3 is amended by inserting after the definition of "court"
the following definition --
"
"document" includes a part of a document;
".
15 4. Section 8 amended
Section 8(1)(e)(ii) is amended by deleting "prosecution;" and
inserting instead --
"
prosecution or a person who died as a result of the
20 offence wherewith he is then charged;
".
5. Section 9 amended
(1) Section 9(1) is amended as follows:
(a) in paragraph (c)(i) by inserting after "Second
25 Schedule" --
" or under a repealed Code section ";
page 3
Acts Amendment (Evidence) Bill 1999
Part 2 Evidence Act 1906 amended
Division 2 General amendments
s. 6
(b) in paragraph (c)(ii) by inserting after "Second
Schedule" --
" or under a repealed Code section ".
(2) After section 9(5) the following subsection is inserted --
5 "
(6) In subsection (1) --
"repealed Code section" means a repealed section of
The Criminal Code that, before it was repealed,
enacted an offence constituted by acts or
10 omissions that are substantially the same as the
acts or omissions that constitute an offence under a
section of The Criminal Code that is mentioned in
Part 1 of the Second Schedule.
".
15 6. Sections 27A and 27B and heading inserted
After section 27 the following heading and sections are
inserted --
"
Manner of giving evidence
20 27A. Form of evidence
(1) Evidence may be given in the form of a chart, summary
or other explanatory document if it appears to the court
that the document would be likely to aid
comprehension of other evidence that has been given
25 or is to be given.
(2) Nothing in this section affects the operation of section
27B.
page 4
Acts Amendment (Evidence) Bill 1999
Evidence Act 1906 amended Part 2
General amendments Division 2
s. 6
27B. Manner of giving voluminous or complex evidence
(1) If a court is satisfied that particular evidence that a
party to a proceeding proposes to adduce is so
voluminous or complex that it would be difficult to
5 assess or comprehend it if it were adduced in narrative
form, the court may direct the party to adduce the
evidence in another form, including in the form of a
chart, summary or other explanatory document.
(2) The direction may also --
10 (a) specify the form of the evidence;
(b) specify the witness who is to give the evidence;
(c) specify how any document is to be prepared;
(d) contain directions to ensure that each other
party is served with copies of the evidence in
15 the form in which it is to be given and is given
sufficient time to examine it;
(e) contain directions as to the extent (if any) to
which the voluminous or complex evidence is
to be adduced by the party.
20 (3) The opinion rule does not apply to evidence adduced in
accordance with a direction under this section.
(4) In subsection (3) --
"opinion rule" means the common law rule that
evidence of an opinion is not admissible to prove
25 the existence of a fact about the existence of which
the opinion was expressed.
".
page 5
Acts Amendment (Evidence) Bill 1999
Part 2 Evidence Act 1906 amended
Division 2 General amendments
s. 7
7. Section 36A amended
(1) Section 36A(1) is amended by inserting after the definition of
"defendant" the following definition --
"
5 "repealed Code section" means a repealed section of
The Criminal Code that, before it was repealed,
enacted an offence constituted by acts or
omissions that are substantially the same as the
acts or omissions that constitute an offence under a
10 section or Chapter of The Criminal Code that is
mentioned in paragraph (a) or (b) of the definition
of "sexual offence" in this subsection.
".
(2) Section 36A(1) is amended in the definition of "sexual offence"
15 as follows:
(a) by inserting after paragraph (b) the following
paragraph --
"
(ba) under a repealed Code section;
20 ";
(b) in paragraph (c) by deleting "or (b)" and inserting
instead --
" , (b) or (ba) ";
(c) in paragraph (d) by deleting "or (b)" and inserting
25 instead --
" , (b) or (ba) ".
page 6
Acts Amendment (Evidence) Bill 1999
Evidence Act 1906 amended Part 2
General amendments Division 2
s. 8
8. Section 36BD amended
Section 36BD is amended by inserting after "The Criminal
Code" --
" (as enacted at any time) ".
5 9. Section 36C amended
(1) Section 36C(1) is amended by deleting "subsection (5)" and
inserting instead --
" subsections (5) and (6) ".
(2) Section 36C(2) is amended by deleting "not exceeding $500."
10 and inserting instead --
"
of, in the case of an individual, $5 000 or, in the case of
a body corporate, $25 000.
".
15 (3) After section 36C(5) the following subsection is inserted --
"
(6) Nothing in this section prohibits the publication or
broadcasting of matter identifying a complainant if --
(a) prior to the publication or broadcasting that
20 complainant authorized the publication or
broadcasting of the matter; and
(b) at the time the complainant authorized the
publication or broadcasting, he or she was at
least 18 years old and was not a person who,
25 because of mental impairment (as defined in
The Criminal Code), is incapable of making
reasonable judgments in respect of the
publication or broadcasting of such matters.
".
page 7
Acts Amendment (Evidence) Bill 1999
Part 2 Evidence Act 1906 amended
Division 2 General amendments
s. 10
10. Section 73A replaced
Section 73A is repealed and the following section is inserted
instead --
"
5 73A. Admissibility of reproductions (best evidence rule
modified)
(1) A document that accurately reproduces the contents of
another document is admissible in evidence before a
court in the same circumstances, and for the same
10 purposes, as that other document, whether or not that
other document still exists.
(2) In determining whether a particular document
accurately reproduces the contents of another, a court is
not bound by the rules of evidence and --
15 (a) may rely on its own knowledge of the nature
and reliability of the processes by which the
reproduction was made;
(b) may make findings based on a certificate in the
prescribed form signed by a person with
20 knowledge and experience of the processes by
which the reproduction was made;
(c) may make findings based on a certificate in the
prescribed form signed by a person who has
compared the contents of both documents and
25 found them to be identical; or
(d) may act on any other basis it considers
appropriate in the circumstances.
(3) This section applies to a reproduction made --
(a) by an instantaneous process;
page 8
Acts Amendment (Evidence) Bill 1999
Evidence Act 1906 amended Part 2
General amendments Division 2
s. 11
(b) by a process in which the contents of a
document are recorded by photographic,
electronic or other means, and the reproduction
is subsequently produced from that record;
5 (c) by a process prescribed for the purposes of this
section; or
(d) in any other way.
(4) If a reproduction is made by a process referred to in
subsection (3)(c), the process shall be presumed to
10 reproduce accurately the contents of the document
purportedly reproduced unless the contrary is proved.
(5) If so requested by a party to the proceedings, a court
shall give reasons for determining that a document is or
is not an accurate reproduction.
15 (6) A person who signs a certificate for the purposes of
this section knowing it to be false or misleading in any
material particular commits an indictable offence and is
liable on conviction to imprisonment for 7 years.
".
20 11. Various sections repealed
The following sections are repealed:
(a) sections 73C to 73M;
(b) section 73P;
(c) sections 73R, 73S and 73T;
25 (d) section 73V.
12. Section 73N amended
Section 73N is amended by deleting "under this Division".
page 9
Acts Amendment (Evidence) Bill 1999
Part 2 Evidence Act 1906 amended
Division 2 General amendments
s. 13
13. Section 73Q amended
Section 73Q is amended by deleting "pursuant to this Division".
14. Section 79B amended
Section 79B is amended by inserting before the definition of
5 "derived" the following definitions --
"
"business" means any business, occupation, trade or
calling and includes the business of any
governmental body or instrumentality and of any
10 local government;
"business record" means a book of account or other
document prepared or used in the ordinary course
of a business for the purpose of recording any
matter relating to the business;
15 ".
15. Section 79C amended
(1) After section 79C(2) the following subsections are inserted --
"
(2a) Notwithstanding subsections (1) and (2), in any
20 proceedings where direct oral evidence of a fact or
opinion would be admissible, any statement in a
document and tending to establish the fact or opinion
shall, on production of the document, be admissible as
evidence of that fact or opinion if --
25 (a) the statement is, or directly or indirectly
reproduces, or is derived from, a business
record; and
(b) the court is satisfied that the business record is
a genuine business record.
page 10
Acts Amendment (Evidence) Bill 1999
Evidence Act 1906 amended Part 2
Amendments about evidence of children and special Division 3
witnesses
s. 16
(2b) Where a statement referred to in subsection (2a) is
made by a qualified person that person shall not be
called as a witness unless the court orders otherwise.
".
5 (2) Section 79C(4) is amended by deleting "(1) and (2)" and
inserting instead --
" (1), (2) and (2a) ".
16. Section 79G repealed
Section 79G is repealed.
10 17. Section 92A replaced
Section 92A is repealed and the following section is inserted
instead --
"
92A. Application of sections 89 to 92 to Australian and
15 foreign banks
Sections 89, 90, 91 and 92 apply to bankers' books,
and banks and branches of banks, whether within or
outside the Commonwealth.
".
20 Division 3 -- Amendments about evidence of children and
special witnesses
18. Section 106A amended
(1) Section 106A is amended as follows:
(a) by deleting "to 106S" and substituting --
25 " to 106T ";
(b) by deleting the definition of "trial".
page 11
Acts Amendment (Evidence) Bill 1999
Part 2 Evidence Act 1906 amended
Division 3 Amendments about evidence of children and special
witnesses
s. 19
(2) Section 106A is amended in the definition of "video-taped
recording of evidence" as follows:
(a) by deleting "or" after paragraph (a);
(b) by deleting the full stop after paragraph (b) and inserting
5 instead --
" ; or ";
(c) by inserting the following paragraph --
"
(c) pursuant to section 106N(3a) or (5).
10 ".
19. Section 106H amended
(1) Section 106H(2) is repealed and the following subsections are
inserted instead --
"
15 (2) If a relevant statement is to be admitted, evidence of
the making and content of the affected child's
statement shall be given by the person to whom the
affected child made the statement.
(2a) Subsection (1) does not affect the operation of section
20 106G.
(2b) A written statement by a person to whom an affected
child made a relevant statement is admissible under
section 69(2) of the Justices Act 1902 if the
requirements of that subsection are complied with.
25 (2c) A relevant statement recorded on video-tape is
admissible to the same extent as if it were given orally
in the proceeding in accordance with the usual rules
and practice of the Court concerned.
".
page 12
Acts Amendment (Evidence) Bill 1999
Evidence Act 1906 amended Part 2
Amendments about evidence of children and special Division 3
witnesses
s. 20
(2) Section 106H(3) is amended by deleting "subsection (1)" and
inserting instead --
" this section ".
20. Section 106I amended
5 Section 106I(1) is repealed and the following subsection is
inserted instead --
"
(1) Where a Schedule 7 proceeding has been commenced
in a Court, the prosecutor may apply to a judge of that
10 Court for an order directing --
(a) that the whole or a part of the affected child's
evidence in chief be --
(i)taken and recorded on video-tape; and
(ii)presented to the Court in the form of
15 that video-taped recording,
and that the affected child be available at the
proceeding to be cross-examined and
re-examined; or
(b) that the whole of the affected child's evidence
20 (including cross-examination and
re-examination) be --
(i) taken at a special hearing and recorded
on video-tape; and
(ii) presented to the Court in the form of
25 that video-taped recording,
and that the affected child not be present at the
proceeding.
".
page 13
Acts Amendment (Evidence) Bill 1999
Part 2 Evidence Act 1906 amended
Division 3 Amendments about evidence of children and special
witnesses
s. 21
21. Section 106J amended
Section 106J(1)(b) is deleted and the following paragraph is
inserted instead --
"
5 (b) the manner in which any cross-examination and
any re-examination of the affected child is to be
conducted in the Schedule 7 proceeding.
".
22. Section 106K amended
10 (1) Section 106K(1)(a) is deleted and the following paragraph is
inserted instead --
"
(a) directions, with or without conditions, as to the
conduct of the special hearing, including
15 directions as to --
(i) whether the affected child is to be in the
courtroom, or in a separate room, when
the child's evidence is being taken; and
(ii) the persons who may be present in the
20 same room as the affected child when
the child's evidence is being taken;
".
(2) Section 106K(3) is repealed and the following subsection is
inserted instead --
25 "
(3) At a special hearing ordered under subsection (1) --
(a) the defendant --
(i) is not to be in the same room as the
affected child when the child's evidence
30 is being taken; but
page 14
Acts Amendment (Evidence) Bill 1999
Evidence Act 1906 amended Part 2
Amendments about evidence of children and special Division 3
witnesses
s. 23
(ii) is to be capable of observing the
proceedings by means of a closed circuit
television system and is at all times to
have the means of communicating with
5 his or her counsel;
(b) no person other than a person authorized by the
judge under subsection (1) is to be present in
the same room as the affected child when the
child's evidence is being taken;
10 (c) subject to the control of the presiding judge, the
affected child is to give his or her evidence and
be cross-examined and re-examined; and
(d) except as provided by this section, the usual
rules of evidence apply.
15 ".
(3) Section 106K(4) is repealed.
23. Section 106L repealed
Section 106L is repealed.
24. Section 106M amended
20 Section 106M(1) and (2) are amended by deleting "trial" in the
3 places it occurs and in each place inserting instead --
" proceeding ".
25. Section 106N amended
(1) After section 106N(3) the following subsection is inserted --
25 "
(3a) Where arrangements are made under subsection (2)(a)
or (b) the affected child's evidence is to be recorded on
video-tape.
".
page 15
Acts Amendment (Evidence) Bill 1999
Part 2 Evidence Act 1906 amended
Division 3 Amendments about evidence of children and special
witnesses
s. 26
(2) After section 106N(4) the following subsection is inserted --
"
(5) Where arrangements are made under subsection (4) and
where the necessary facilities are available to do so, the
5 affected child's evidence is to be recorded on video-tape.
".
26. Section 106R amended
(1) Section 106R(4)(b) is deleted and the following paragraphs are
inserted instead --
10 "
(b) in any proceeding for an offence, that the
special witness's evidence be --
(i) taken at a special hearing and recorded
on video-tape; and
15 (ii) presented to the Court in the form of
that video-taped recording,
and that the special witness not be present at the
proceeding for the offence;
(c) in any proceeding for an offence, that an
20 arrangement of the kind described in
section 106N(2) or (4) is to be made.
".
(2) Section 106R(4a) is repealed and the following subsection is
inserted instead --
25 "
(4a) Where an arrangement under subsection (4)(b) or (c) is
directed to be made, section 106K or 106N, as the case
requires, applies, with any necessary changes, as if the
special witness were an affected child.
30 ".
page 16
Acts Amendment (Evidence) Bill 1999
Evidence Act 1906 amended Part 2
Amendments about evidence of children and special Division 3
witnesses
s. 27
27. Section 106S amended
Section 106S(1) is amended by deleting "trial." and inserting
instead --
" proceeding. ".
5 28. Section 106T inserted
After section 106S the following section is inserted --
"
106T. Use of recordings etc.
(1) Evidence of an affected child recorded on video-tape
10 under section 106J, 106K or 106N in relation to a
Schedule 7 proceeding is admissible in any hearing in
relation to that proceeding to the same extent as if it
were given orally in the hearing in accordance with the
usual rules and practice of the Court concerned.
15 (2) Evidence of a special witness recorded on video-tape
under section 106K or 106N in relation to a proceeding
is admissible in any hearing in relation to that
proceeding to the same extent as if it were given orally
in the hearing in accordance with the usual rules and
20 practice of the Court concerned.
(3) A judge of a Court before which it is proposed to
adduce video-taped evidence under subsection (1) or
(2) in a hearing may order that the affected child or
special witness, as the case may be, attend the Court
25 for the purposes of giving further evidence in
clarification of the video-taped evidence.
(4) The making of an order under subsection (3) does not
prevent the making of an application under section
106I or of an order under section 106J, 106K, 106N or
30 106R(1)(b) in relation to the giving of the further
evidence.
page 17
Acts Amendment (Evidence) Bill 1999
Part 2 Evidence Act 1906 amended
Division 3 Amendments about evidence of children and special
witnesses
s. 29
(5) In this section --
"hearing", in relation to a proceeding, means --
(a) a preliminary hearing under the Justices
Act 1902 in relation to the proceeding;
5 (b) the trial or hearing of the proceeding; or
(c) a retrial or rehearing of the proceeding.
".
29. References to "pre-trial hearing" amended
The provisions listed in the Table to this section are each
10 amended by deleting "pre-trial" wherever it occurs and in each
place inserting instead --
" special ".
Table
s. 106A s. 106M(3)
s. 106K(5) s. 106S(1)
s. 106M(1) s. 106S(2)
30. Schedule 7 amended
15 Schedule 7 is amended in clause 1 as follows:
(a) by inserting before "A proceeding" the subclause
designation "(1)";
(b) in paragraph (a) by inserting after "Part B or C" --
" or under a repealed Code section ";
20 (c) in paragraph (c) by inserting after "Part C" --
" or under a repealed Code section ";
page 18
Acts Amendment (Evidence) Bill 1999
Evidence Act 1906 amended Part 2
Amendments about evidence of children and special Division 3
witnesses
s. 30
(d) at the end of clause 1 by inserting the following
subclause --
"
(2) In subclause (1) --
5 "repealed Code section" means a repealed section of The
Criminal Code that, before it was repealed, enacted an
offence constituted by acts or omissions that are
substantially the same as the acts or omissions that
constitute an offence under a section or Chapter of The
10 Criminal Code that is mentioned in Part B or C, as the
case requires.
".
page 19
Acts Amendment (Evidence) Bill 1999
Part 3 Justices Act 1902 amended
s. 31
Part 3 -- Justices Act 1902 amended
31. Act amended by this Part
The amendments in this Part are to the Justices Act 1902*.
[* Reprinted as at 4 June 1997.
5 For subsequent amendments see 1998 Index to Legislation of
Western Australia, Table 1, pp. 132-3.]
32. Section 69 replaced
Section 69 is repealed and the following section is inserted
instead --
10 "
69. Evidence of witnesses, statements may be admitted
on indictable charges
(1) Every witness shall be examined upon oath, or in such
other manner as is prescribed or allowed by the Acts in
15 force for the time being relating to giving evidence in
courts of justice.
(2) Subject to subsection (3) and despite any other Act,
where a person is charged with an indictable offence
and the charge is not dealt with summarily, a written
20 statement of any person --
(a) may, on a preliminary hearing, be tendered to
the justices in evidence and is admissible as
evidence before it to the like extent as oral
evidence to the like effect by that person; or
25 (b) may, where there is no preliminary hearing, be
tendered to the justices to be used in evidence
for the purposes of the trial or sentencing of the
defendant,
page 20
Acts Amendment (Evidence) Bill 1999
Justices Act 1902 amended Part 3
s. 32
if --
(c) the statement complies with the conditions in
subsection (4);
(d) before the statement is so tendered, a copy of it
5 has been served, by or on behalf of the party
proposing to tender it, on each other party to
the proceedings and, where the party proposing
to tender it is the prosecutor, it has been served
and lodged in accordance with section 101A(e);
10 (e) where the statement refers to any other
document or exhibit, the copy of the statement
served under paragraph (d) is accompanied by a
copy or description of the other document or
exhibit; and
15 (f) before the statement is so tendered, no other
party to the proceedings objects to its tender.
(3) Despite any other Act, where a person is charged with
an indictable offence and the charge is not dealt with
summarily, a statement of an affected child, as defined
20 in section 106A of the Evidence Act 1906 --
(a) may, on a preliminary hearing, be tendered to a
court of summary jurisdiction in evidence and
is admissible as evidence before it to the like
extent as oral evidence to the like effect by that
25 person; or
(b) may, where there is no preliminary hearing, be
tendered to a court of summary jurisdiction to
be used in evidence for the purposes of the trial
or sentencing of the defendant,
page 21
Acts Amendment (Evidence) Bill 1999
Part 3 Justices Act 1902 amended
s. 32
if --
(c) in the case of a written statement, it complies
with the conditions in subsection (4);
(d) in the case of an electronically recorded
5 statement, it complies with the conditions in
subsection (5);
(e) before the statement is so tendered, a copy of it
has been served and lodged in accordance with
section 101A(e); and
10 (f) where the statement refers to any other
document or exhibit, the copy of the statement
served under paragraph (e) is accompanied by a
copy or description of the other document or
exhibit.
15 (4) The conditions with which a written statement must
comply are as follows --
(a) where the statement is made by a person under
the age of 18 years, it gives his age;
(b) unless the statement is made by a person under
20 the age of 12 years, it contains a declaration by
the person who made it to the effect that it is
true to the best of his knowledge and belief and
that he made the statement knowing that, if it
were tendered in evidence, he would be guilty
25 of a crime if he has wilfully included in the
statement anything which he knew to be false
or did not believe to be true;
(c) the statement purports to be signed by the
person who made it; and
page 22
Acts Amendment (Evidence) Bill 1999
Justices Act 1902 amended Part 3
s. 32
(d) where the statement is made by a person who
cannot read, it is read aloud to him before he
signs it, and it is accompanied by a declaration
of the person who read the statement to the
5 effect that it was so read.
(5) The conditions with which an electronically recorded
statement must comply are as follows --
(a) the statement identifies the person making it;
(b) the statement gives the age of the person
10 making it; and
(c) unless the statement is made by a person under
the age of 12 years, it contains a declaration by
the person who made it to the effect that --
(i) the recording of the statement (without
15 this declaration) has been played back to
him; and
(ii) the statement is true to the best of his
knowledge and belief and that he made
the statement knowing that, if it were
20 tendered in evidence, he would be guilty
of a crime if he has wilfully included in
the statement anything which he knew
to be false or did not believe to be true.
(6) A statement is deemed to be tendered in evidence
25 under this section at the time that the statement is
tendered to the court.
(7) Any document or object referred to as an exhibit and
identified in a statement tendered in evidence under
this section is deemed to have been produced before
30 the court and identified by the maker of the statement.
page 23
Acts Amendment (Evidence) Bill 1999
Part 3 Justices Act 1902 amended
s. 33
(8) A statement tendered in evidence under this section is
admissible as evidence before any court of competent
jurisdiction, to the like extent that a deposition of the
person who made the statement would be so
5 admissible.
(9) Any person who, in a statement tendered in evidence
under this section, has wilfully included anything
which he knew to be false or did not believe to be true
is guilty of a crime and is liable to imprisonment for
10 7 years.
".
33. Section 73 amended
(1) Section 73(2) is amended as follows:
(a) by deleting "section 69" and inserting instead --
15 " section 69(2) or (3) ";
(b) in paragraph (a) by deleting "subsection (2)(a) of that
section" and inserting instead --
" section 69(2)(a) or (3)(a) ";
(c) in paragraph (c) by inserting after "may," --
20 " unless subsection (3) or (4) applies, ".
(2) After section 73(2) the following subsections are inserted --
"
(3) If a written statement tendered in evidence under
section 69(2) contains a relevant statement (as defined
25 in section 106H of the Evidence Act 1906), the justices
shall not require the affected child to attend before
them and give evidence unless they are satisfied that
there are special circumstances that justify the child
being so called.
page 24
Acts Amendment (Evidence) Bill 1999
Justices Act 1902 amended Part 3
s. 34
(4) Where, on a preliminary hearing a statement of an
affected child (as defined in section 106A of the
Evidence Act 1906) is tendered in evidence under
section 69(3), the justices --
5 (a) shall not require the affected child to attend
before them and give evidence unless they are
satisfied that there are special circumstances
that justify the child being so called; and
(b) shall, if the statement is electronically recorded
10 and if a party to the proceeding so requests,
cause to be played before them, such part of the
statement as is admissible in evidence by virtue
of section 69(3)(a).
(5) Where, on a preliminary hearing, a video-tape of
15 evidence of an affected child is admitted under section
106T of the Evidence Act 1906, the justices --
(a) shall not require the affected child to attend
before them and give evidence unless they are
satisfied that there are special circumstances
20 that justify the child being so called,
notwithstanding section 106T(3) of that Act;
and
(b) shall, if a party to the proceeding so requests,
cause to be played before them, such part of the
25 video-tape as is admissible in evidence.
".
34. Section 101A amended
Section 101A(e) is amended as follows:
(a) by deleting "written";
page 25
Acts Amendment (Evidence) Bill 1999
Part 3 Justices Act 1902 amended
s. 35
(b) by deleting "section 69(2);" and inserting instead --
"
section 69(2) or (3) and notice of any evidence
recorded on video-tape which the prosecution
5 proposes to adduce;
".
35. Section 101B amended
(1) Section 101B(1) is amended by inserting after "section
73(1)," --
10 "
and after any evidence recorded on video-tape is
admitted under section 106T(1) or (2) of the Evidence
Act 1906,
".
15 (2) Section 101B(2)(b) is deleted and the following paragraph is
inserted instead --
"
(b) objects to any written statement being tendered
under section 69(2).
20 ".
36. Section 101C amended
Section 101C is amended as follows:
(a) in paragraph (a)(ii) by deleting "section 69" and
inserting instead --
25 " section 69(2) ";
(b) by deleting "and" after paragraph (b)(ii);
page 26
Acts Amendment (Evidence) Bill 1999
Justices Act 1902 amended Part 3
s. 37
(c) after paragraph (b)(ii) by inserting the following
subparagraphs --
"
(iia) shall require that all electronically
5 recorded statements that are, under
section 69(3), to be tendered to them to
be used in evidence shall be so tendered
and shall receive the statements, which
shall not be played in court;
10 (iib) shall require that any video-tape of
evidence that is, under section 106T of
the Evidence Act 1906, to be admitted
shall be tendered and shall receive the
video-tape which shall not be played in
15 court; and
";
(d) in paragraphs (b)(iii) and (c), by deleting "written
statements," and inserting instead --
" statements, or the video-tapes, if any, ".
20 37. Section 102 amended
Section 102(1) is amended as follows:
(a) in paragraph (a) by deleting "section 69" and inserting
instead --
" section 69(2) or (3) ";
25 (b) by deleting "and" after paragraph (a);
(c) by deleting the comma after paragraph (b) and inserting
instead a semicolon;
page 27
Acts Amendment (Evidence) Bill 1999
Part 3 Justices Act 1902 amended
s. 38
(d) by inserting after paragraph (b) the following
paragraphs --
"
(c) shall cause to be played the parts of electronically
5 recorded statements that are required to be so
played under section 73(4)(b); and
(d) shall cause to be played the parts of any
video-tape that are required to be so played
under section 73(5)(b),
10 ".
38. Ninth Schedule amended
The Ninth Schedule is amended as follows:
(a) in the second paragraph by deleting "written";
(b) in the second paragraph by deleting "These papers" and
15 inserting instead --
" The statements and any other papers ";
(c) in the third paragraph by inserting after the last sentence
the following --
"
20 If any electronically recorded statements of children are
tendered they will be played in court.
";
(d) in the fourth paragraph by deleting "section 69(3)" and
inserting instead --
25 " section 69(2) ";
(e) in the sixth paragraph by deleting "written" in the 2
places where it occurs;
(f) in the sixth paragraph by inserting after "read" --
" or played ".
page 28
Acts Amendment (Evidence) Bill 1999
Children's Court of Western Australia Act 1988 amended Part 4
s. 39
Part 4 -- Children's Court of Western Australia
Act 1988 amended
39. Act amended by this Part
The amendments in this Part are to the Children's Court of
5 Western Australia Act 1988*.
[* Reprinted as at 23 April 1996.
For subsequent amendments see 1998 Index to Legislation of
Western Australia, Table 1, p. 37.]
40. Section 19B amended
10 (1) Section 19B(4)(a) is deleted and the following paragraph is
inserted instead --
"
(a) the court, on its own motion or on the
application of the child, may direct the
15 prosecutor --
(i) to serve or cause to be served on the
child (or the child's solicitor or counsel)
and to lodge with the clerk, within such
time as is specified, a copy of any
20 statement made, in accordance with
section 69 of the Justices Act 1902, by a
person whose evidence the prosecution
proposes to adduce at the hearing of the
charge; and
25 (ii) to afford the child (or the child's
solicitor or counsel) reasonable
opportunity to inspect any material
exhibits that the prosecution proposes to
tender at the hearing of the charge;
30 ".
page 29
Acts Amendment (Evidence) Bill 1999
Part 4 Children's Court of Western Australia Act 1988 amended
s. 40
(2) After section 19B(4) the following subsections are inserted --
"
(5) If a copy of a statement of a person is served in
accordance with a direction made under
5 subsection (4)(a)(i), the original of the statement may
be produced and given in evidence at the trial of the
child --
(a) if it is proved to the satisfaction of the Court
that the person is dead, or out of Western
10 Australia, or so ill as not to be able to travel,
although there may be a prospect of the
person's recovery; or
(b) if the person is kept out of the way by the child.
(6) If there is a prospect of the recovery of a person proved
15 to be too ill to travel, the Court shall not be obliged to
receive the statement, but may postpone the trial.
".
page 30
Acts Amendment (Evidence) Bill 1999
The Criminal Code amended Part 5
s. 41
Part 5 -- The Criminal Code amended
41. Code amended by this Part
The amendments in this Part are to The Criminal Code*.
[* Reprinted as at 21 April 1997 as the Schedule to the Criminal
5 Code Act 1913 appearing in Appendix B to the Criminal
Code Compilation Act 1913.
For subsequent amendments see 1998 Index to Legislation of
Western Australia, Table 1, p. 63.]
42. Section 635B amended
10 Section 635B(1)(b) is deleted and the following paragraph is
inserted instead --
"
(b) a written statement of a person that is made, at
any time, in accordance with section 69(4) of
15 the Justices Act 1902 and, if it refers to any
other document or exhibit, is accompanied by a
copy or description of the other document or
exhibit,
".
20 43. Section 729 amended
(1) Section 729 is amended as follows:
(a) by inserting before "When" in the first paragraph the
subsection designation " (1) ";
(b) by inserting before "When" in the second paragraph the
25 subsection designation " (2) ".
page 31
Acts Amendment (Evidence) Bill 1999
Part 5 The Criminal Code amended
s. 43
(2) Section 729 is amended by inserting after the second paragraph
the following subsections --
"
(3) When an indictment is presented in a court in the
5 circumstances referred to in subsection (1), the court
may, on its own motion or on the application of the
accused person, direct the Crown --
(a) to serve the accused person and to lodge with
the court, within such time as is specified, a
10 copy of any statement made, in accordance
with section 69 of the Justices Act 1902, by a
person whose evidence the Crown proposes to
adduce at the trial; and
(b) to afford the accused person reasonable
15 opportunity to inspect any material exhibits that
the Crown proposes to tender at the trial.
(4) If a copy of a statement of a person is served in
accordance with a direction made under
subsection (3)(a), the original of the statement may be
20 produced and given in evidence at the trial --
(a) if it is proved to the satisfaction of the court
that the person is dead, or out of Western
Australia, or so ill as not to be able to travel,
although there may be a prospect of the
25 person's recovery; or
(b) if the person is kept out of the way by the
accused person.
page 32
Acts Amendment (Evidence) Bill 1999
The Criminal Code amended Part 5
s. 43
(5) If there is a prospect of the recovery of a person proved
to be too ill to travel, the court shall not be obliged to
receive the statement, but may postpone the trial,
discharging a jury if one has been empanelled if it
5 thinks fit.
".
page 33
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