EVIDENCE ACT 1906 - SCHEDULE 7

EVIDENCE ACT 1906 - SCHEDULE 7

(Section 106A)

        [Heading inserted: No. 36 of 1992 s. 10.]

Part A

        [Heading inserted: No. 36 of 1992 s. 10.]

1.         (1)         A proceeding comes within the provisions of this Schedule if —

            (a)         it is a proceeding in which a person stands charged with an offence under a section or Chapter of The Criminal Code mentioned in Part B or C or under a repealed Code section or a section of the Prostitution Act 2000 mentioned in Part B —

                  (i)         whether as a single offence or together with any other offence as an additional or alternative count; and

                  (ii)         whether or not the person is liable on the charge to be found guilty of any other offence;

                and

            (b)         the complainant was a child on the day on which proceedings for the offence were commenced; and

            (c)         in the case of a proceeding for an offence mentioned in Part C or under a repealed Code section, the accused is a person to whom this paragraph applies.

        (2)         In subclause (1) —

        repealed Code section means a repealed section of The Criminal Code that, before it was repealed, enacted an offence constituted by acts or omissions that are substantially the same as the acts or omissions that constitute an offence under a section or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 Criminal Code that is mentioned in Part B or C, as the case requires.

2.                 A proceeding also comes within the provisions of the Schedule if it is an application under Part 4 or 5 of the Children and Community Services Act 2004 .

3.                 A proceeding also comes within the provisions of the Schedule if it is a proceeding by way of appeal from a decision made, or a penalty imposed, in any proceeding that comes within clause 1 or 2.

4.                 Clause 1(1)(c) applies to —

            (a)         a parent, step-parent, grandparent, step-grandparent, brother, sister, step-brother, step-sister, uncle, aunt, nephew or niece of the complainant and a child of any uncle or aunt of the complainant; or

            (b)         a person who is or was, at the time when the offence was committed, living in the same household as the complainant; or

            (c)         a person who at any time had the care of, or exercised authority over, the complainant in the household on a regular basis,

                and it is immaterial whether a relationship referred to in paragraph (a) is of the whole blood or of the half blood.

        [Part A inserted: No. 36 of 1992 s. 10; amended: No. 17 of 2000 s. 64; No. 71 of 2000 s. 30; No. 34 of 2004 s. 251; No. 46 of 2004 s. 29.]

Part B

        [Heading inserted: No. 17 of 2000 s. 64.]

        [Part B inserted: No. 17 of 2000 s. 64; amended: No. 3 of 2002 s. 35(2).]

Part C

        [Heading inserted: No. 36 of 1992 s. 10.]

        [Part C inserted: No. 36 of 1992 s. 10; amended: No. 82 of 1994 s. 13(4)(b); No. 4 of 2004 s. 24; No. 84 of 2004 s. 41 and 82.]

Notes

This is a compilation of the Evidence Act 1906 and includes amendments made by other written laws ^{1M, 5, 6} . For provisions that have come into operation, and for information about any reprints, see the compilation table. For provisions that have not yet come into operation see the uncommenced provisions table.

Compilation table

Uncommenced provisions table

To view the text of the uncommenced provisions see Acts as passed on the WA Legislation website.

Other notes

^1M         Under the Cross-border Justice Act 2008 section 14, in order to give effect to that Act, this Act must be applied with the modifications prescribed by the Cross-border Justice Regulations 2009 Part 3 Division 11 as if this Act had been altered in that way. If a modification is to replace or insert a numbered provision, the new provision is identified by the superscript 1M appearing after the provision number. If a modification is to replace or insert a definition, the new definition is identified by the superscript 1M appearing after the defined term.

¹         The Evidence Amendment Act 1990 s. 4(2) reads as follows:

        (2)         Subsection (2a) inserted in section 11 of the principal Act by subsection (1) applies to a certificate given under subsection (2) of that section in respect of evidence given on or after the day on which this section comes into operation.

²         The Interpretation Act 1918 was repealed by the Interpretation Act 1984 .

³         The Newspaper Libel and Registration Act 1884 was repealed by the Defamation Act 2005 .

⁴         The Acts Amendment (Video and Audio Links) Act 1998 s. 3 reads as follows:

3.         Power to use certain technology

        (1)         Nothing in the amended provisions is to be taken as preventing the use by a court or other person acting judicially of a video link or audio link (as those terms are defined in section 121 of the Evidence Act 1906 ) in any case where the court or person thinks fit and where the use of the video link or audio link would not be contrary to law.

        (2)         In subsection (1) —

        amended provisions means —

            (a)         The Criminal Code ;

            (b)         the Evidence Act 1906 ;

            (c)         the Justices Act 1902 ; and

            (d)         the Sentencing Act 1995 ,

        as amended by this Act.

⁵         The amendment in the Land Information Authority Act 2006 s. 133 to the Fifth Schedule is not included because the entry it sought to amend had been amended by the Machinery of Government (Miscellaneous Amendments) Act 2006 s. 37.

⁶         The Evidence Act Amendment Act 1974 is not included as it was repealed before it came into operation by the Evidence Amendment Act 1987 s. 10 .

⁷         The Acts Amendment (Abortion) Act 1998 s. 6(2) reads as follows:

        (2)         In relation to an offence committed before the commencement of this Act, the Evidence Act 1906 applies as if subsection (1) had not been enacted.

⁸         The Criminal Property Confiscation (Consequential Provisions) Act 2000 s. 14(2) reads as follows:

        (2)         Despite the amendment effected by subsection (1), the Evidence Act 1906 as in force before the commencement of this Act continues to apply on and after that commencement in relation to an embargo notice that has effect under section 8 of this Act.

⁹         The Taxation Administration (Consequential Provisions) Act 2002 s. 33 and 34 read as follows:

33.         Definitions

                In this Part —

        commencement day means the day on which the Taxation Administration Act 2003 comes into operation;

        old Act means —

            (a)         an Act repealed by section 5;

            (b)         the old Stamp Act; or

            (c)         section 41 of the Metropolitan Region Town Planning Scheme Act 1959 as in force immediately before the commencement day;

        old Stamp Act means the Stamp Act 1921 as in force immediately before the commencement day;

        substantive provisions , in relation to an old Act, means the provisions of the old Act other than those dealing with matters dealt with in the Taxation Administration Act 2003 .

34.         General transitional arrangements

        (1)         Section 37(1) of the Interpretation Act 1984 , except paragraphs (a) and (b), does not apply in relation to the repeal of an old Act.

        (2)         The repeal of an old Act does not, unless the contrary intention appears —

            (a)         affect any right, interest, title, power or privilege created, acquired, accrued, established or exercisable or any status or capacity existing prior to the repeal;

            (b)         affect any duty, obligation, liability, or burden of proof imposed, created, or incurred prior to the repeal;

            (c)         subject to section 11 of The Criminal Code and section 10 of the Sentencing Act 1995 , affect any penalty or forfeiture incurred or liable to be incurred in respect of an offence committed against the old Act; or

            (d)         affect any investigation, legal proceeding or remedy in respect of any such right, interest, title, power, privilege, status, capacity, duty, obligation, liability, burden of proof, penalty or forfeiture.

        (3)         Subject to subsections (4) and (5) —

            (a)         a right, interest, title, power, privilege, duty, obligation, liability or burden of proof referred to in subsection (2)(a) or (b) may be exercised or enforced;

            (b)         a penalty or forfeiture referred to in subsection (2)(c) may be imposed and enforced; and

            (c)         an investigation, legal proceeding or remedy referred to in subsection (2)(d) may be instituted, continued, or enforced,

                as if the substantive provisions of the relevant old Act —

            (d)         had not been repealed;

            (e)         were a taxation Act for the purposes of the Taxation Administration Act 2003 ; and

            (f)         had been amended to make any modifications necessary for this section to have effect.

        (4)         If an objection, appeal or other legal proceeding (the action ) was instituted under an old Act and was not finally determined before the commencement day —

            (a)         the action may be continued;

            (b)         any requirement to pay interest on an amount of tax determined in the action to have been overpaid applies and may be enforced;

            (c)         any penalty may be imposed and enforced; and

            (d)         any decision, order or determination made in the action has effect, and may be enforced,

                as if this Act and the taxation Acts had not commenced.

        (5)         If the time limited by an old Act for doing anything is longer than the time limited by a taxation Act for doing the equivalent thing under that Act, then in relation to a matter to which subsection (3) applies, the time limited under the old Act applies in relation to the doing of the thing under the taxation Act.

        (6)         If the time limited by an old Act for commencing proceedings in relation to an offence under that Act is shorter than the 5 year period limited by section 111 of the Taxation Administration Act 2003 , then despite section 111, proceedings in relation to an offence under the old Act (including an offence under a provision of the old Act that is continued in force under this Part) cannot be commenced after the expiry of the shorter period provided for by the old Act.

        (7)         In this section a reference, in relation to the Stamp Act 1921 , to the repeal of the old Act is a reference to the amendment of the Act by the Stamp Amendment Act 2003 .

¹⁰         The Criminal Law Amendment (Sexual Assault and Other Matters) Act 2004 Pt. 4 reads as follows:

Part 4 — Transitional and validation

30.         Validation of payments

        (1)         In this section —

        fee regulations means regulations 6(2) and 13 of the Evidence (Witnesses’ and Interpreters’ Fees and Expenses) Regulations 1976 .

        (2)         Any payment purporting to have been made under the fee regulations before the coming into operation of section 28 is taken to have been, and to have always been, as valid as it would have been if section 28 had come into operation before the fee regulations were made.

¹¹         The amendment in the Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 s. 78 to s. 56(1) is not included because that subsection was replaced by s. 82 (Sch. 2 it. 118) of the same Act.

¹²         The amendment in the Machinery of Government (Miscellaneous Amendments) Act 2006 s. 36 to s. 106A is not included because the paragraph it sought to amend had been amended by the Children and Community Services Act 2004 Sch. 2 cl. 9.

Defined terms



[This is a list of terms defined and the provisions where they are defined. The list is not part of the law.]

Defined term         Provision(s)

accused         36A(1), 106A

Act         3

affected child         106A

application for leave         19A(1)

audio link         120(1)

Australasian colony         3

Australia         109(1), 115, 120(1)

authenticated copy         73BA(1)

authorised officer         50B(1)

authority         104A(5)

bank         3

bankers’ books         3

broadcast         36C(4), 106MB(3)

business         79B

business day         50B(1)

business record         79B

child         106A

colony         3

Commonwealth         3

complainant         19A(1)(a), 36A(1), 36C(4)

confidant         20A(1)

confider         20E(1)

corroboration warning         50(1)

counsel         106A

counselling communication         19A(1)

counsellor         19A(1)

counsels         19A(1)(a) and (2)

court         3, 79B

criminal organisation         106A

criminal organisation offence         106A

criminal proceedings         119(1)

derived         79B

direction         20G

disclose         19A(1)

DNA profile         50B(1)

document         3, 79B

duties Act         73U(3)

eligible service         119(1)

examination         50B(1), 109(1)

examined copy         3

forensic scientist         50B(1)

Gazette         3

Government Printer         3

harm         19A(1), 20A(1)

hearing         106T(5)

hearing day         50B(1)

identifying evidence         20G, 20I

inferior court         109(1)

informant         20G

inquest         119(1)

journalist         20G

judge         3, 11(3), 12(5), 106M(3)

judicial authority         109(1)

legal proceeding         3

liable person         119(1)

mental impairment         106A

misconduct         20E(1), 20K(1)

national security         20G

new offence         106A

news medium         20G

officer of the Library Board of Western Australia         65A(2)

opinion rule         27B(4)

participating jurisdiction         120(1)

party         19C(7), 50B(1)

periodical         42

person acting judicially         3

person acting judicially         20G

photograph         3

prisoner         3

privilege         32A(2)

Privy Council         57(4)

proceeding         3, 20G, 106A, 106HB(1)

proceedings         79B, 115

propensity evidence         31A(1)

property         115

prosecutor         106A

protected communication         19A(1)

protected confidence         20A(1)

protected confider         20A(1)

protected identity information         20A(1)

protected person         19A(1)

protected witness         106G(3)

protection provisions         19A(1)

protection provisions (journalists)         20G

protection provisions (PCR)         20A(1)

qualified person         79B

recognized court         120(1)

relationship evidence         31A(1)

relevant statement         106H(3)

repealed Code section         9(6), 36A(1), Sch. 7(2)

request         115

requesting court         115

require disclosure         19A(1)

rules of court         32A(2)

Schedule 7 proceeding         106A

serious sexual offence         106A

sexual offence         36A(1)

special hearing         106S(2)

special witness         106A

stamped         73U(3)

State         3

statement         79B

superior court         109(1)

support person         19A(1)

supporting affidavit         19A(1)

the State         3

thing         50B(1)

tribunal         120(1)

uncorroborated evidence         3

victim         106A

video link         120(1)

visual recording         106A

visual recording of evidence         106A

visually recorded interview         106A, 106HA(3)

votes and proceedings         3

WA court         120(1)

witness         106RA(1)

written publication         36C(4)

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