Tasmanian Bills Tasmanian Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
TASMANIA
__________
EVIDENCE AMENDMENT BILL 2010
__________
CONTENTS
1. Short title
2. Commencement
3. Principal Act
4. Section 3 amended (Interpretation)
5. Section 3B amended (Unavailability of persons)
6. Section 13 substituted
13. Competence: lack of capacity
7. Section 14 amended (Compellability: reduced capacity)
8. Section 21 amended (Sworn evidence by oath or affirmation)
9. Section 29 amended (Manner and form of questioning and
responses of witness)
10. Section 33 amended (Evidence by police officers)
11. Section 37 amended (Leading questions)
12. Section 41 substituted
41. Improper questions
13. Section 50 amended (Proof of voluminous or complex
documents)
14. Section 59 amended (Hearsay rule - exclusion of hearsay
evidence)
15. Section 60 substituted
60. Exception: evidence relevant for non-hearsay
purpose
[Bill 32]-I
16. Section 61 amended (Exception to hearsay rule dependent on
competency)
17. Section 62 amended (Restriction to first-hand hearsay)
18. Section 64 amended (Exception: civil proceedings if maker
available)
19. Section 65 amended (Exception: criminal proceedings if maker
not available)
20. Section 66 amended (Exception: criminal proceedings if maker
available)
21. Section 66A inserted
66A. Exception: contemporaneous statements about a
person's health, &c.
22. Sections 71 and 72 substituted
71. Exception: electronic communications
72. Exception: Aboriginal and Torres Strait Islander
traditional laws and customs
23. Section 78A inserted
78A. Exception: Aboriginal and Torres Strait Islander
traditional laws and customs
24. Section 79 substituted
79. Exception: opinion based on specialised knowledge
25. Section 79A repealed
26. Section 85 amended (Criminal proceedings: reliability of
admissions by defendants)
27. Section 89 amended (Evidence of silence)
28. Section 97 amended (Tendency rule)
29. Section 98 substituted
98. Coincidence rule
30. Chapter 3, Part 7 substituted
PART 7 - Credibility
Division 1 - Credibility evidence
101A. Credibility evidence
Division 2 - Credibility of witnesses
102. Credibility rule
103. Exception: cross-examination as to credibility
104. Further protection: cross-examination of defendant
105. ..................
106. Exception: rebutting denials by other evidence
2
107. (Repealed)
108. Exception: re-establishing credibility
Division 3 - Credibility of persons who are not witnesses
108A. Admissibility of evidence of credibility of person
who has made a previous representation
108B. Further protections: previous representations of an
accused who is not a witness
Division 4 - Persons with specialised knowledge
108C. Exception: evidence of persons with specialised
knowledge
31. Section 112 amended (Leave required for cross-examination on
character of accused or co-accused)
32. Section 117 amended (Interpretation of Division)
33. Section 118 amended (Legal advice)
34. Section 122 substituted
122. Loss of client legal privilege: consent and related
matters
35. Chapter 3, Part 10, Division 1A inserted
Division 1A - Professional confidential relationship privilege
126A. Definitions
126B. Exclusion of evidence of protected confidence
126C. Loss of professional confidential relationship
privilege: consent
126D. Loss of professional confidential relationship
privilege: misconduct
126E. Ancillary orders
126F. Application of Division
36. Section 128 substituted
128. Privilege in respect of self-incrimination in other
proceedings
37. Section 128A inserted
128A. Privilege in respect of self-incrimination - exception
for certain orders, &c.
38. Section 131A inserted
131A. Application of Division to preliminary proceedings
of courts
39. Chapter 3, Part 11: Heading amended
40. Section 139 amended (Cautioning person)
3
41. Section 148 amended (Evidence of certain acts of justices,
lawyers and notaries public)
42. Section 161 substituted
161. Electronic communications
43. Section 164 amended (Corroboration requirements abolished)
44. Chapter 4, Part 5: Heading amended
45. Section 165 amended (Unreliable evidence)
46. Sections 165A and 165B inserted
165A. Warnings in relation to children's evidence
165B. Delay in prosecution
47. Section 184 substituted
184. Accused may admit matters and give consent
48. Section 189 amended (The voir dire)
49. Section 190 amended (Waiver of rules of evidence)
50. Section 191 amended (Agreements as to facts)
51. Section 192A inserted
192A. Advance rulings and findings
52. Section 197 amended (Regulations)
53. Section 200 inserted
200. Savings, transitional and other provisions
54. Schedule 2 inserted
Schedule 2 - Savings, Transitional and Other Provisions
55. Repeal of Act
4
EVIDENCE AMENDMENT BILL 2010
This Public Bill originated in the House of Assembly, and, having this day passed, is
now ready for presentation to the Legislative Council for its concurrence.
P. R. ALCOCK, Clerk of the House
21 September 2010
(Brought in by the Minister for Justice, the Honourable
Larissa Tahireh Giddings)
A BILL FOR
An Act to amend the Evidence Act 2001
Be it enacted by His Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
1. Short title
This Act may be cited as the Evidence
Amendment Act 2010.
2. Commencement
The provisions of this Act commence on a day
or days to be proclaimed.
[Bill 32] 5
Evidence Amendment Act 2010
Act No. of
s. 3
3. Principal Act
In this Act, the Evidence Act 2001* is referred to
as the Principal Act.
4. Section 3 amended (Interpretation)
Section 3(1) of the Principal Act is amended as
follows:
(a) by inserting the following definitions
after the definition of "Australian law":
"Australian lawyer" has the meaning
it has in the Legal Profession Act
2007;
"Australian legal practitioner" has
the meaning it has in the Legal
Profession Act 2007;
(b) by inserting the following definitions
after the definition of "Australian
Parliament":
"Australian practising certificate"
has the meaning it has in the
Legal Profession Act 2007;
"Australian-registered foreign
lawyer" has the meaning it has in
the Legal Profession Act 2007;
*No. 76 of 2001
6
Evidence Amendment Act 2010
Act No. of
s. 4
(c) by inserting the following definition after
the definition of "credibility":
"credibility evidence" is defined in
section 101A;
(d) by inserting the following definition after
the definition of "document":
"electronic communication" has the
meaning it has in the Electronic
Transactions Act 2000;
(e) by omitting the definition of "lawyer";
(f) by inserting the following definition after
the definition of "leading question":
"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;
(g) by inserting the following definition after
the definition of "opinion rule":
"overseas-registered foreign lawyer"
has the meaning it has in Part 2.6
of Chapter 2 of the Legal
Profession Act 2007;
7
Evidence Amendment Act 2010
Act No. of
s. 5
(h) by inserting the following definition after
the definition of "probative value":
"prosecutor" means a person who
institutes or is responsible for the
conduct of a prosecution;
(i) by inserting the following definition after
the definition of "tendency rule":
"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;
5. Section 3B amended (Unavailability of persons)
Section 3B of the Principal Act is amended by
omitting subsection (1) and substituting the
following subsection:
(1) For the purposes of this Act, a person is
taken not to be available to give evidence
about a fact if -
(a) the person is dead; or
(b) the person is, for any reason other
than the application of section 16,
not competent to give the
evidence; or
8
Evidence Amendment Act 2010
Act No. of
s. 6
(c) the person is mentally or
physically unable to give the
evidence and it is not reasonably
practicable to overcome that
inability; or
(d) it would be unlawful for the
person to give the evidence; or
(e) a provision of this Act prohibits
the evidence being given; or
(f) all reasonable steps have been
taken, by the party seeking to
prove the person is not available,
to find the person or secure his or
her attendance, but without
success; or
(g) all reasonable steps have been
taken, by the party seeking to
prove the person is not available,
to compel the person to give the
evidence, but without success.
6. Section 13 substituted
Section 13 of the Principal Act is repealed and
the following section is substituted:
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) -
9
Evidence Amendment Act 2010
Act No. of
s. 6
(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.
(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
10
Evidence Amendment Act 2010
Act No. of
s. 6
(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.
11
Evidence Amendment Act 2010
Act No. of
s. 7
7. Section 14 amended (Compellability: reduced
capacity)
Section 14(a) of the Principal Act is amended by
omitting "be capable of hearing or
understanding, or of communicating replies to,
questions on that matter" and substituting "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".
8. Section 21 amended (Sworn evidence by oath or
affirmation)
Section 21(2) of the Principal Act is amended by
omitting "section 13(2)" and substituting
"section 13".
9. Section 29 amended (Manner and form of
questioning and responses of witness)
Section 29 of the Principal Act is amended by
omitting subsection (2) and substituting the
following subsection:
(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.
12
Evidence Amendment Act 2010
Act No. of
s. 10
10. Section 33 amended (Evidence by police officers)
Section 33(2)(c) of the Principal Act is amended
by omitting "lawyer" and substituting
"Australian legal practitioner or legal counsel".
11. Section 37 amended (Leading questions)
Section 37(1)(c) of the Principal Act is amended
by omitting "a lawyer" and substituting "an
Australian legal practitioner, legal counsel or
prosecutor".
12. Section 41 substituted
Section 41 of the Principal Act is repealed and
the following section is substituted:
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
13
Evidence Amendment Act 2010
Act No. of
s. 12
(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
(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
14
Evidence Amendment Act 2010
Act No. of
s. 12
(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
15
Evidence Amendment Act 2010
Act No. of
s. 13
evidence of any answer given by the
witness in response to the question.
13. Section 50 amended (Proof of voluminous or
complex documents)
Section 50 of the Principal Act is amended by
omitting subsection (1) and substituting the
following subsection:
(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.
14. Section 59 amended (Hearsay rule - exclusion of
hearsay evidence)
Section 59 of the Principal Act is amended as
follows:
(a) by inserting in subsection (1) "it can
reasonably be supposed that" after "that";
(b) by inserting the following subsection
after subsection (2):
(2A) For the purposes of determining
under subsection (1) whether it
16
Evidence Amendment Act 2010
Act No. of
s. 15
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.
15. Section 60 substituted
Section 60 of the Principal Act is repealed and
the following section is substituted:
60. Exception: evidence relevant for non-
hearsay purpose
(1) The hearsay rule does not apply to
evidence of a previous representation that
is admitted because it is relevant for a
purpose other than proof of an asserted
fact.
(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)).
(3) However, this section does not apply in a
criminal proceeding to evidence of an
admission.
17
Evidence Amendment Act 2010
Act No. of
s. 16
16. Section 61 amended (Exception to hearsay rule
dependent on competency)
Section 61 of the Principal Act is amended by
omitting subsection (1) and substituting the
following subsection:
(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).
17. Section 62 amended (Restriction to first-hand
hearsay)
Section 62 of the Principal Act is amended by
inserting after subsection (2) the following
subsection:
(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.
18
Evidence Amendment Act 2010
Act No. of
s. 18
18. Section 64 amended (Exception: civil proceedings if
maker available)
Section 64 of the Principal Act is amended by
omitting subsection (3) and substituting the
following subsection:
(3) If the person who made the
representation has been or is to be called
to give evidence, the hearsay rule does
not apply to evidence of the
representation given by -
(a) that person; or
(b) a person who saw, heard or
otherwise perceived the
representation being made.
19. Section 65 amended (Exception: criminal
proceedings if maker not available)
Section 65 of the Principal Act is amended by
omitting subsection (2) and substituting the
following subsection:
(2) The hearsay rule does not apply to
evidence of a previous representation
given by a person who saw, heard or
otherwise perceived the representation
being made, if the representation -
(a) was made under a duty to make
that representation or to make
representations of that kind; or
19
Evidence Amendment Act 2010
Act No. of
s. 20
(b) was made when or shortly after
the asserted fact occurred and in
circumstances that make it
unlikely that the representation is
a fabrication; or
(c) was made in circumstances that
make it highly probable that the
representation is reliable; or
(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.
20. Section 66 amended (Exception: criminal
proceedings if maker available)
Section 66 of the Principal Act is amended by
inserting after subsection (2) the following
subsection:
(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
20
Evidence Amendment Act 2010
Act No. of
s. 21
(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.
21. Section 66A inserted
After section 66 of the Principal Act, the
following section is inserted in Division 2:
66A. Exception: contemporaneous statements
about a person's health, &c.
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.
22. Sections 71 and 72 substituted
Sections 71 and 72 of the Principal Act are
repealed and the following sections are
substituted:
71. Exception: electronic communications
The hearsay rule does not apply to a
representation contained in a document
21
Evidence Amendment Act 2010
Act No. of
s. 23
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.
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.
23. Section 78A inserted
After section 78 of the Principal Act, the
following section is inserted in Part 3:
22
Evidence Amendment Act 2010
Act No. of
s. 24
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.
24. Section 79 substituted
Section 79 of the Principal Act is repealed and
the following section is substituted:
79. Exception: opinion based on specialised
knowledge
(1) If a person has specialised knowledge
based on the person's training, study or
experience, the opinion rule does not
apply to evidence of an opinion of that
person that is wholly or substantially
based on that knowledge.
(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
23
Evidence Amendment Act 2010
Act No. of
s. 25
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.
25. Section 79A repealed
Section 79A of the Principal Act is repealed.
26. Section 85 amended (Criminal proceedings:
reliability of admissions by defendants)
Section 85 of the Principal Act is amended by
omitting subsection (1) and substituting the
following subsection:
24
Evidence Amendment Act 2010
Act No. of
s. 27
(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 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.
27. Section 89 amended (Evidence of silence)
Section 89(1) of the Principal Act is amended by
omitting "in the course of official questioning"
and substituting "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".
25
Evidence Amendment Act 2010
Act No. of
s. 28
28. Section 97 amended (Tendency rule)
Section 97 of the Principal Act is amended by
omitting subsection (1) and substituting the
following subsection:
(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.
29. Section 98 substituted
Section 98 of the Principal Act is repealed and
the following section is substituted:
26
Evidence Amendment Act 2010
Act No. of
s. 29
98. 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 -
(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.
(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.
27
Evidence Amendment Act 2010
Act No. of
s. 30
30. Chapter 3, Part 7 substituted
Part 7 of Chapter 3 of the Principal Act is
repealed and the following Part is substituted:
PART 7 - CREDIBILITY
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 2 to 6
of Chapter 3.
28
Evidence Amendment Act 2010
Act No. of
s. 30
Division 2 - Credibility of witnesses
102. Credibility rule
Credibility evidence about a witness is
not admissible.
103. Exception: cross-examination as to
credibility
(1) The credibility rule does not apply to
evidence adduced in cross-examination
of a witness if the evidence could
substantially affect the assessment of the
credibility of the witness.
(2) Without limiting the matters that the
court may have regard to for the purposes
of subsection (1), it is to have regard to -
(a) whether the evidence tends to
prove that the witness knowingly
or recklessly made a false
representation when the witness
was under an obligation to tell the
truth; and
(b) the period that has elapsed since
the acts or events to which the
evidence relates were done or
occurred.
29
Evidence Amendment Act 2010
Act No. of
s. 30
104. Further protection: cross-examination of
defendant
(1) This section applies only to credibility
evidence in a criminal proceeding and so
applies in addition to section 103.
(2) A defendant must not be cross-examined
about a matter that is relevant to the
assessment of the defendant's credibility,
unless the court gives leave.
(3) Despite subsection (2), leave is not
required for cross-examination by the
prosecutor 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 evidence relates; or
(c) made a prior inconsistent
statement.
(4) Leave must not be given for cross-
examination by the prosecutor under
subsection (2) unless -
(a) the defendant or the person
representing the defendant has
questioned the witnesses for the
prosecution to prove that the
defendant is, either generally or
in a particular respect, a person of
good character; or
30
Evidence Amendment Act 2010
Act No. of
s. 30
(b) the nature or conduct of the
defence involves imputations on
the character of the prosecutor or
any witness for the prosecution.
(5) Leave is not to be given for cross-
examination by another defendant
unless -
(a) the evidence that the defendant to
be cross-examined has given
includes evidence adverse to the
defendant seeking leave to cross-
examine; and
(b) that evidence has been admitted.
Note: This section differs from section 104 of the Evidence
Act 1995 of the Commonwealth.
105. ..................
....................................
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 -
31
Evidence Amendment Act 2010
Act No. of
s. 30
(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.
32
Evidence Amendment Act 2010
Act No. of
s. 30
107. (Repealed)
....................................
108. Exception: re-establishing credibility
(1) The credibility rule does not apply to
evidence adduced in re-examination of a
witness.
(2) The credibility rule does not apply to
evidence of a prior consistent statement
of a witness if -
(a) evidence of a prior inconsistent
statement of the witness has been
admitted; or
(b) it is or will be suggested, either
expressly or by implication, that
evidence given by the witness has
been fabricated or reconstructed,
whether deliberately or otherwise,
or is the result of a suggestion -
and the court gives leave to adduce the
evidence of the prior consistent
statement.
33
Evidence Amendment Act 2010
Act No. of
s. 30
Division 3 - Credibility of persons who are not witnesses
108A. Admissibility of evidence of credibility of
person who has made a previous
representation
(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.
(2) Without limiting the matters which the
court may have regard to for the purposes
of subsection (1), it is to have regard to -
(a) whether the evidence tends to
prove that the person who made
the representation knowingly or
recklessly made a false
representation when the person
was under an obligation to tell the
truth; and
34
Evidence Amendment Act 2010
Act No. of
s. 30
(b) the period that elapsed between
the doing of the acts or the
occurrence of the events to which
the representation related and the
making of the representation.
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 -
35
Evidence Amendment Act 2010
Act No. of
s. 30
(a) the defendant or the person
representing the defendant has
questioned the witnesses for the
prosecution to prove that the
defendant is, either generally or
in a particular respect, a person of
good character; or
(b) the nature or conduct of the
defence involves imputations on
the character of the prosecutor or
any witness for the prosecution.
(5) 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 -
36
Evidence Amendment Act 2010
Act No. of
s. 30
(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;
37
Evidence Amendment Act 2010
Act No. of
s. 31
(ii) the development and
behaviour of children who
have been victims of
sexual offences, or
offences similar to sexual
offences.
31. Section 112 amended (Leave required for cross-
examination on character of accused or co-accused)
Section 112 of the Principal Act is amended by
omitting "is not to be" and substituting "must not
be".
32. Section 117 amended (Interpretation of Division)
Section 117(1) of the Principal Act is amended
as follows:
(a) by omitting paragraph (a) from the
definition of "client" and substituting the
following paragraph:
(a) a person or body who engages a
lawyer to provide legal services
or who employs a lawyer
(including under a contract of
service);
(b) by omitting the definition of "lawyer"
and substituting the following definition:
"lawyer" means -
38
Evidence Amendment Act 2010
Act No. of
s. 33
(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);
33. Section 118 amended (Legal advice)
Section 118(c) of the Principal Act is amended
by omitting "client or a lawyer" and substituting
"client, lawyer or another person".
34. Section 122 substituted
Section 122 of the Principal Act is repealed and
the following section is substituted:
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.
39
Evidence Amendment Act 2010
Act No. of
s. 34
(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
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 -
40
Evidence Amendment Act 2010
Act No. of
s. 34
(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
41
Evidence Amendment Act 2010
Act No. of
s. 35
(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 section 32
(Attempts to revive memory in court) or
section 33 (Evidence by police officers).
35. Chapter 3, Part 10, Division 1A inserted
After section 126 of the Principal Act, the
following Division is inserted in Part 10:
Division 1A - Professional confidential relationship
privilege
126A. Definitions
(1) In this Division -
"harm" includes actual physical
bodily harm, financial loss, stress
or shock, damage to reputation or
emotional or psychological harm
(such as shame, humiliation and
fear);
42
Evidence Amendment Act 2010
Act No. of
s. 35
"protected confidence" means a
communication made by a person
in confidence to another person
(in this Division called the
"confidant") -
(a) in the course of a
relationship in which the
confidant was acting in a
professional capacity; and
(b) when the confidant was
under an express or
implied obligation not to
disclose its contents,
whether or not the
obligation arises under
law or can be inferred
from the nature of the
relationship between the
person and the confidant;
"protected confider" means a person
who made a protected
confidence;
"protected identity information"
means information about, or
enabling a person to ascertain, the
identity of the person who made a
protected confidence.
(2) For the purposes of this Division, a
communication may be made in
confidence even if it is made in the
presence of a third party if the third
43
Evidence Amendment Act 2010
Act No. of
s. 35
party's presence is necessary to facilitate
communication.
126B. Exclusion of evidence of protected
confidence
(1) The court may direct that evidence not be
adduced in a proceeding if the court finds
that adducing it would disclose -
(a) a protected confidence; or
(b) the contents of a document
recording a protected confidence;
or
(c) protected identity information.
(2) The court may give such a direction -
(a) on its own initiative; or
(b) on the application of the
protected confider or confidant
concerned (whether or not either
is a party).
(3) The court must give such a direction if it
is satisfied that -
(a) it is likely that harm would or
might be caused (whether directly
or indirectly) to a protected
confider if the evidence is
adduced; and
44
Evidence Amendment Act 2010
Act No. of
s. 35
(b) the nature and extent of the harm
outweighs the desirability of the
evidence being given.
(4) Without limiting the matters that the
court may take into account for the
purposes of this section, it is to take into
account the following matters:
(a) the probative value of the
evidence in the proceeding;
(b) the importance of the evidence in
the proceeding;
(c) the nature and gravity of the
relevant offence, cause of action
or defence and the nature of the
subject matter of the proceeding;
(d) the availability of any other
evidence concerning the matters
to which the protected confidence
or protected identity information
relates;
(e) the likely effect of adducing
evidence of the protected
confidence or protected identity
information, including the
likelihood of harm, and the nature
and extent of harm that would be
caused to the protected confider;
(f) the means (including any
ancillary orders that may be made
under section 126E) available to
45
Evidence Amendment Act 2010
Act No. of
s. 35
the court to limit the harm or
extent of the harm that is likely to
be caused if evidence of the
protected confidence or the
protected identity information is
disclosed;
(g) if the proceeding is a criminal
proceeding, whether the party
seeking to adduce evidence of the
protected confidence or protected
identity information is a
defendant or the prosecutor;
(h) whether the substance of the
protected confidence or the
protected identity information has
already been disclosed by the
protected confider or any other
person;
(i) the public interest in preserving
the confidentiality of protected
confidences;
(j) the public interest in preserving
the confidentiality of protected
identity information.
(5) The court must state its reasons for
giving or refusing to give a direction
under this section.
46
Evidence Amendment Act 2010
Act No. of
s. 35
126C. Loss of professional confidential relationship
privilege: consent
This Division does not prevent the
adducing of evidence given with the
consent of the protected confider
concerned.
126D. Loss of professional confidential relationship
privilege: misconduct
(1) This Division does not prevent the
adducing of evidence of a
communication made or the contents of a
document prepared in the furtherance of
the commission of a fraud or an offence
or the commission of an act that renders
a person liable to a civil penalty.
(2) For the purposes of this section, if the
commission of the fraud, offence or act is
a fact in issue and there are reasonable
grounds for finding that -
(a) the fraud, offence or act was
committed; and
(b) a communication was made or
document prepared in furtherance
of the commission of the fraud,
offence or act -
the court may find that the
communication was so made or
document so prepared.
47
Evidence Amendment Act 2010
Act No. of
s. 35
126E. Ancillary orders
Without limiting any action the court
may take to limit the possible harm, or
extent of the harm, likely to be caused by
the disclosure of evidence of a protected
confidence or protected identity
information, the court may -
(a) order that all or part of the
evidence be heard in camera; and
(b) make such orders relating to the
suppression of publication of all
or part of the evidence given
before the court as, in its opinion,
are necessary to protect the safety
and welfare of the protected
confider.
126F. Application of Division
(1) This Division does not apply in relation
to a proceeding the hearing of which
began before the commencement of this
Division.
(2) This Division applies in relation to a
protected confidence within the meaning
of this Division whether made before or
after the commencement of this Division.
(3) This Division does not apply to
section 127B.
48
Evidence Amendment Act 2010
Act No. of
s. 36
(4) The court may give a direction under this
Division in respect of a protected
confidence or protected identity
information whether or not the protected
confidence or protected identity
information is privileged under another
section of this Part or would be so
privileged except for a limitation or
restriction imposed by that section.
36. Section 128 substituted
Section 128 of the Principal Act is repealed and
the following section is substituted:
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) Subject to subsection (4), if the court
determines that there are reasonable
49
Evidence Amendment Act 2010
Act No. of
s. 36
grounds for the objection, the court is not
to require the witness to give that
particular evidence or evidence on a
particular matter, and 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 -
(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
50
Evidence Amendment Act 2010
Act No. of
s. 36
(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 Tasmanian 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) evidence of any information,
document or thing obtained as a
direct or indirect consequence of
51
Evidence Amendment Act 2010
Act No. of
s. 36
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.
(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.
(11) A reference in this section to doing an act
includes a reference to failing to act.
52
Evidence Amendment Act 2010
Act No. of
s. 37
(12) If a person has been given a certificate
under a prescribed State or Territory
provision in respect of evidence given by
a person in a proceeding in a State or
Territory court, the certificate has the
same effect, in a proceeding to which this
subsection applies, as if it had been given
under this section.
(13) For the purposes of subsection (12), a
prescribed State or Territory provision is
a provision of a law of a State or
Territory declared by the regulations to
be a prescribed State or Territory
provision for the purposes of that
subsection.
(14) Subsection (12) applies to a proceeding
in relation to which this Act applies
because of section 4, other than a
proceeding for an offence against a law
of the Commonwealth or for the recovery
of a civil penalty under a law of the
Commonwealth.
37. Section 128A inserted
After section 128 of the Principal Act, the
following section is inserted in Division 2:
128A. Privilege in respect of self-incrimination -
exception for certain orders, &c.
(1) In this section -
53
Evidence Amendment Act 2010
Act No. of
s. 37
"disclosure order" means an order
made by a Tasmanian court in a
civil proceeding requiring a
person to disclose information as
part of, or in connection with a
freezing or search order under the
Supreme Court Rules 2000 but
does not include an order made
by a court under the Proceeds of
Crime Act 2002 of the
Commonwealth or Crime
(Confiscation of Profits) Act
1993;
"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
54
Evidence Amendment Act 2010
Act No. of
s. 37
(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
(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
55
Evidence Amendment Act 2010
Act No. of
s. 37
(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 Tasmanian 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 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
56
Evidence Amendment Act 2010
Act No. of
s. 37
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 -
(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.
(11) If a person has been given a certificate
under a prescribed State or Territory
provision in respect of information of a
kind referred to in subsection (6)(a), the
certificate has the same effect, in a
proceeding to which this subsection
applies, as if it had been given under this
section.
57
Evidence Amendment Act 2010
Act No. of
s. 38
(12) For the purposes of subsection (11), a
prescribed State or Territory provision is
a provision of a law of a State or
Territory declared by the regulations to
be a prescribed State or Territory
provision for the purposes of that
subsection.
(13) Subsection (11) applies to a proceeding
in relation to which this Act applies
because of section 4, other than a
proceeding for an offence against a law
of the Commonwealth or for the recovery
of a civil penalty under a law of the
Commonwealth.
38. Section 131A inserted
Before section 132 of the Principal Act, the
following section is inserted in Division 4:
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
58
Evidence Amendment Act 2010
Act No. of
s. 38
or 3 or section 127A or 127B;
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;
59
Evidence Amendment Act 2010
Act No. of
s. 39
(f) a request to produce a document
under Division 1 of Part 6 of
Chapter 4.
39. Chapter 3, Part 11: Heading amended
Part 11 of Chapter 3 of the Principal Act is
amended by omitting "DISCRETIONS TO
EXCLUDE EVIDENCE" from the heading to
that Part and substituting "DISCRETIONARY
AND MANDATORY EXCLUSIONS".
40. Section 139 amended (Cautioning person)
Section 139(2) of the Principal Act is amended
by omitting "official questioning" and
substituting "questioning".
41. Section 148 amended (Evidence of certain acts of
justices, lawyers and notaries public)
Section 148 of the Principal Act is amended as
follows:
(a) by omitting "lawyer" first occurring and
substituting "Australian lawyer";
(b) by omitting from paragraph (a) "a
lawyer" and substituting "an Australian
lawyer".
60
Evidence Amendment Act 2010
Act No. of
s. 42
42. Section 161 substituted
Section 161 of the Principal Act is repealed and
the following section is substituted:
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
61
Evidence Amendment Act 2010
Act No. of
s. 43
(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
(b) all the parties to the proceeding
are parties to the contract; and
(c) the provision is inconsistent with
a term of the contract.
43. Section 164 amended (Corroboration requirements
abolished)
Section 164 of the Principal Act is amended by
omitting subsection (4).
44. Chapter 4, Part 5: Heading amended
Part 5 of Chapter 4 of the Principal Act is
amended by inserting in the heading to that Part
"AND INFORMATION" after
"WARNINGS".
62
Evidence Amendment Act 2010
Act No. of
s. 45
45. Section 165 amended (Unreliable evidence)
Section 165 of the Principal Act is amended as
follows:
(a) by omitting from subsection (1)(f)
"official questioning" and substituting
"questioning by an investigating
official";
(b) by inserting the following subsection
after subsection (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 165A(2)
and (3).
46. Sections 165A and 165B inserted
After section 165 of the Principal Act, the
following sections are inserted in Part 5:
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:
63
Evidence Amendment Act 2010
Act No. of
s. 46
(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 -
(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 -
64
Evidence Amendment Act 2010
Act No. of
s. 46
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 the
defendant, 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
65
Evidence Amendment Act 2010
Act No. of
s. 47
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.
47. Section 184 substituted
Section 184 of the Principal Act is repealed and
the following section is substituted:
184. Accused may admit matters and give consent
(1) In or before a criminal proceeding, a
defendant may -
(a) admit matters of fact; and
66
Evidence Amendment Act 2010
Act No. of
s. 48
(b) give any consent -
that a party to a civil proceeding may
make or give.
(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.
48. Section 189 amended (The voir dire)
Section 189(6) of the Principal Act is amended
by omitting "Section 128(8)" and substituting
"Section 128(10)".
49. Section 190 amended (Waiver of rules of evidence)
Section 190(2)(a) of the Principal Act is
amended by omitting "lawyer" and substituting
"Australian legal practitioner or legal counsel".
67
Evidence Amendment Act 2010
Act No. of
s. 50
50. Section 191 amended (Agreements as to facts)
Section 191(3)(a) of the Principal Act is
amended by omitting "lawyers" and substituting
"Australian legal practitioners, legal counsel or
prosecutors".
51. Section 192A inserted
After section 192 of the Principal Act, the
following section is inserted in Part 1:
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
(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.
68
Evidence Amendment Act 2010
Act No. of
s. 52
52. Section 197 amended (Regulations)
Section 197 of the Principal Act is amended by
omitting subsections (3) and (4).
53. Section 200 inserted
After section 199 of the Principal Act, the
following section is inserted in Part 2:
200. Savings, transitional and other provisions
Schedule 2 has effect.
54. Schedule 2 inserted
After Schedule 1 to the Principal Act, the
following Schedule is inserted:
SCHEDULE 2 - SAVINGS, TRANSITIONAL AND
OTHER PROVISIONS
Section 200
PART 1 - PRELIMINARY
1. Regulations
(1) The regulations may contain provisions
of a savings or transitional nature
consequent on the enactment of this Act.
(2) A provision referred to in subclause (1)
may take effect on and from the day on
which this Act commences or a later day.
69
Evidence Amendment Act 2010
Act No. of
s. 54
PART 2 - PROVISIONS CONSEQUENT ON THE ENACTMENT OF
THE EVIDENCE AMENDMENT ACT 2010
1. Interpretation
In this Part -
"the amending Act" means the
Evidence Amendment Act 2010.
2. 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.
3. 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) Section 85, as in force immediately
before the commencement of the
amendment, continues to apply in
70
Evidence Amendment Act 2010
Act No. of
s. 54
relation to admissions made before that
commencement.
4. Failure or refusal to answer questions &c.
(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.
(2) Section 89, as in force immediately
before the commencement of the
amendment, continues to apply in
relation to any such refusal or failure
before that commencement.
5. 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
71
Evidence Amendment Act 2010
Act No. of
s. 55
under that section after that
commencement -
the notice is taken to have been given
under that section as in force after that
commencement.
6. Disclosure orders
Section 128A, as inserted by the
amending Act, does not apply in relation
to any disclosure order made before the
commencement of that section.
7. 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.
55. Repeal of Act
This Act is repealed on the ninetieth day from
the day on which all of the provisions of this Act
commence.
72 Government Printer, Tasmania