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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Evidence (Records and Documents) Amendment
Bill 2015
A BILL FOR
An Act to amend the
Evidence
Act 1929
.
Contents
Part 2—Amendment of Evidence
Act 1929
4Substitution of heading to Part 4
5Insertion of heading to Division 1
6Insertion of heading to Division 2
7Insertion of heading to
Division 3
8Repeal of sections 45A to 45C
9Substitution of heading to Part 5
10Amendment of section
46—Interpretation
11Insertion of Part 4 Divisions 5 to
7
Division 5—Other documents and
records
52Admission of
certain documents in evidence
53Admission of
business records in evidence
Division 6—Matters relating to
communications
56Evidence produced
by processes, machines and other devices
57Modification of
best evidence rule
12Repeal of Part 6 and Part 6A
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Evidence (Records and Documents) Amendment
Act 2015.
This Act will come into operation on a day to be fixed by
proclamation.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Evidence
Act 1929
4—Substitution
of heading to Part 4
Heading to Part 4—delete the heading and substitute:
Part 4—Documents and other
records
5—Insertion
of heading to Division 1
Before section 35 insert:
Division 1—Public Acts and
documents
6—Insertion
of heading to Division 2
Before section 42 insert:
Division 2—Proof of convictions, acquittals,
etc
7—Insertion
of heading to Division 3
Before section 44 insert:
Division 3—Documents relating to ships or
transport
8—Repeal
of sections 45A to 45C
Sections 45A to 45C (inclusive)—delete the sections
9—Substitution
of heading to Part 5
Heading to Part 5—delete the heading and substitute:
Division 4—Banking records
10—Amendment
of section 46—Interpretation
Section 46—delete "In this Part" and substitute:
In this Division
11—Insertion
of Part 4 Divisions 5 to 7
After section 51 insert:
Division 5—Other documents and
records
52—Admission of certain documents in
evidence
(1) An apparently
genuine document purporting to contain a statement of fact, or written,
graphical or pictorial matter in which a statement of fact is implicit, or from
which a statement of fact may be inferred is, subject to this section,
admissible in evidence.
(2) A document must not be admitted in evidence under
subsection (1)
if the court is not satisfied that the person by whom, or at whose
direction, the document was prepared could, at the time of the preparation of
the document have deposed of his or her own knowledge to the statement that is
contained or implicit in, or may be inferred from, the contents of the
document.
(3) A document must not be admitted in evidence under
subsection (1)
if the court is of the opinion—
(a) that the person by whom, or at whose direction, the document was
prepared can and should be called by the party tendering the document to give
evidence of the matters contained in the document; or
(b) that the evidentiary weight of the document is slight and is
outweighed by the prejudice that might result to any of the parties from the
admission of the document in evidence; or
(c) that it would be otherwise contrary to the interests of justice to
admit the document in evidence.
(4) In determining whether to admit a document in evidence under this
section, the court may receive evidence by affidavit of any matter pertaining to
the admission of that document in evidence.
(5) For the purpose of determining the evidentiary weight (if any) of a
document admitted in evidence under this section, consideration must be given to
the source from which the document was produced, the safeguards (if any) that
have been taken to ensure its accuracy, and any other relevant
matters.
53—Admission of business records in
evidence
(1) An apparently
genuine document purporting to be a business record—
(a) is admissible in evidence without further proof; and
(b) is evidence of a fact stated in the record, or any fact that may be
inferred from the record (whether the inference arises wholly from the matter
contained in the record, or from that matter in conjunction with other
evidence).
(2) A document must not be admitted in evidence under
subsection (1)
if the court is of the opinion—
(a) that the person by whom, or at whose direction, the document was
prepared can and should be called by the party tendering the document to give
evidence of the matters contained in the document; or
(b) that the evidentiary weight of the document is slight and is
outweighed by the prejudice that might result to any of the parties from the
admission of the document in evidence; or
(c) that it would be otherwise contrary to the interests of justice to
admit the document in evidence.
(3) For the purpose of determining the evidentiary weight (if any) of a
document admitted in evidence under
subsection (1)
, consideration must be given to the source from which the document is
produced, the safeguards (if any) that have been taken to ensure its accuracy,
and any other relevant matters.
(4) In this section—
business means business, occupation, trade or calling and
includes the business of any governmental or local governmental body or
instrumentality;
business record means—
(a) any 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; or
(b) any reproduction of any such record by photographic, photostatic,
lithographic or other like process.
Division 6—Matters relating to
communications
54—Electronic communications
(1) If an apparently
genuine document purports to contain a record of an electronic communication
(other than one referred to in
section 55
), it will be presumed in the absence of evidence to the contrary, 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 in proceedings if—
(a) the proceedings relate to a contract; and
(b) all parties to the proceedings are parties to the contract;
and
(c) the provision is inconsistent with a term of the contract.
(3) A document referred to in
subsection (1)
may be admitted in proceedings as evidence of any of the following
representations contained in the document:
(a) the identity of the person from whom or on whose behalf the electronic
communication was sent;
(b) the date on which or the time at which the communication was
sent;
(c) the destination of the communication or the identity of the person to
whom the communication was addressed.
(4) In this section—
electronic communication has the same meaning as in the
Electronic
Transactions Act 2000
.
55—Telegrams and lettergrams
(1) If a document
purporting to contain a record of a message is transmitted by means of a
lettergram or telegram, it will be presumed, in the absence of evidence to the
contrary, that the message was received by the person to whom the message is
addressed no later than 24 hours after the message was delivered to a post
office for transmission as a lettergram or telegram.
(2) This section does not apply in proceedings if—
(a) the proceedings relate to a contract; and
(b) all parties to the proceedings are parties to the contract;
and
(c)
subsection
(1)
is inconsistent with a term of the contract.
Division 7—Miscellaneous
56—Evidence produced by processes, machines and
other devices
(1) This section applies to a document or thing—
(a) that is produced wholly or partly by a device or process;
and
(b) that is tendered by a party to proceedings who asserts that, in
producing the document or thing, the device or process has produced a particular
outcome.
(2) If a device or process is 1 that, or is of a kind that, if properly
used, will ordinarily produce that outcome, it will be presumed, in the absence
of evidence to the contrary, that, in producing the document or thing on the
occasion in question, the device or process produced that outcome.
Example—
It would not be necessary to call evidence to prove that a photocopier
normally produced complete copies of documents and that it was working properly
when it was used to photocopy a particular document.
57—Modification of best evidence
rule
(1) A document that reproduces the contents of another document is
admissible in evidence before a court in the same circumstances, and for the
same purposes, as that other document (whether or not that other document still
exists).
(2) This section applies to a reproduction made—
(a) by an instantaneous process; or
(b) by a process in which the contents of a document—
(i) recorded by photographic, electronic or other means; or
(ii) stored on a data storage device,
are reproduced, whether in the same form or in some other form;
or
(c) in any other way.
(3) If a court admits or refuses to admit a document under this section,
the court must, if so requested by a party to the proceedings, state the reason
for its decision.
(4) In determining whether a particular document accurately reproduces the
contents of another, a court is not bound by the rules of evidence and, in
particular, the court may rely on its own knowledge of the nature and
reliability of the processes by which the reproduction was made.
Example—
A photograph displaying the contents of an image on a computer screen, or a
transcript of sounds or words captured on an audio recording, may be admissible
as a reproduction of the contents of the image or recording (as the case may
be).
12—Repeal
of Part 6 and Part 6A
Part 6 and Part 6A—delete the Parts