Western Australian Bills

[Index] [Search] [Download] [Related Items] [Help]


This is a Bill, not an Act. For current law, see the Acts databases.


ACTS AMENDMENT (EVIDENCE) BILL 1999

                           Western Australia



                      LEGISLATIVE COUNCIL




    Acts Amendment (Evidence) Bill 1999
                               A Bill for


An Act to amend --
    •       the Evidence Act 1906;
    •       the Justices Act 1902;
    •       the Children's Court of Western Australia Act 1988; and
    •       The Criminal Code.



The Parliament of Western Australia enacts as follows:




                                                               page 1


                                1--1
Acts Amendment (Evidence) Bill 1999
Part 1      Preliminary

s. 1



                       Part 1 -- Preliminary
1.       Short title
         This Act may be cited as the Acts Amendment (Evidence)
         Act 1999.




page 2
                                          Acts Amendment (Evidence) Bill 1999
                                     Evidence Act 1906 amended         Part 2
                                                     Preliminary   Division 1
                                                                          s. 2



                  Part 2 -- Evidence Act 1906 amended
                             Division 1 -- Preliminary
     2.         Act amended by this Part
                The amendments in this Part are to the Evidence Act 1906*.
 5              [* Reprinted as at 10 September 1996.
                   For subsequent amendments see 1998 Index to Legislation of
                   Western Australia, Table 1, p. 86 and Act No. 26 of 1999.]

                       Division 2 -- General amendments
     3.         Section 3 amended
10              Section 3 is amended by inserting after the definition of "court"
                the following definition --
                "
                      "document" includes a part of a document;
                                                                                ".

15   4.         Section 8 amended
                Section 8(1)(e)(ii) is amended by deleting "prosecution;" and
                inserting instead --
                "
                      prosecution or a person who died as a result of the
20                    offence wherewith he is then charged;
                                                                                ".

     5.         Section 9 amended
          (1)   Section 9(1) is amended as follows:
                 (a)   in paragraph (c)(i) by inserting after "Second
25                     Schedule" --
                       " or under a repealed Code section ";

                                                                           page 3
     Acts Amendment (Evidence) Bill 1999
     Part 2      Evidence Act 1906 amended
     Division 2  General amendments
     s. 6



                     (b)    in paragraph (c)(ii) by inserting after "Second
                            Schedule" --
                            " or under a repealed Code section ".
          (2)       After section 9(5) the following subsection is inserted --
 5              "
                    (6)    In subsection (1) --
                           "repealed Code section" means a repealed section of
                                The Criminal Code that, before it was repealed,
                                enacted an offence constituted by acts or
10                              omissions that are substantially the same as the
                                acts or omissions that constitute an offence under a
                                section of The Criminal Code that is mentioned in
                                Part 1 of the Second Schedule.
                                                                                       ".

15   6.             Sections 27A and 27B and heading inserted
                    After section 27 the following heading and sections are
                    inserted --
                    "
                                   Manner of giving evidence
20          27A.           Form of evidence
                    (1)    Evidence may be given in the form of a chart, summary
                           or other explanatory document if it appears to the court
                           that the document would be likely to aid
                           comprehension of other evidence that has been given
25                         or is to be given.
                    (2)    Nothing in this section affects the operation of section
                           27B.




     page 4
                                 Acts Amendment (Evidence) Bill 1999
                            Evidence Act 1906 amended         Part 2
                                  General amendments      Division 2
                                                                 s. 6



     27B.    Manner of giving voluminous or complex evidence
       (1)   If a court is satisfied that particular evidence that a
             party to a proceeding proposes to adduce is so
             voluminous or complex that it would be difficult to
 5           assess or comprehend it if it were adduced in narrative
             form, the court may direct the party to adduce the
             evidence in another form, including in the form of a
             chart, summary or other explanatory document.
       (2)   The direction may also --
10            (a) specify the form of the evidence;
              (b) specify the witness who is to give the evidence;
              (c) specify how any document is to be prepared;
              (d) contain directions to ensure that each other
                    party is served with copies of the evidence in
15                  the form in which it is to be given and is given
                    sufficient time to examine it;
              (e) contain directions as to the extent (if any) to
                    which the voluminous or complex evidence is
                    to be adduced by the party.
20     (3)   The opinion rule does not apply to evidence adduced in
             accordance with a direction under this section.
       (4)   In subsection (3) --
             "opinion rule" means the common law rule that
                  evidence of an opinion is not admissible to prove
25                the existence of a fact about the existence of which
                  the opinion was expressed.
                                                                         ".




                                                                  page 5
     Acts Amendment (Evidence) Bill 1999
     Part 2      Evidence Act 1906 amended
     Division 2  General amendments
     s. 7



     7.         Section 36A amended
          (1)   Section 36A(1) is amended by inserting after the definition of
                "defendant" the following definition --
                "
 5                            "repealed Code section" means a repealed section of
                                  The Criminal Code that, before it was repealed,
                                  enacted an offence constituted by acts or
                                  omissions that are substantially the same as the
                                  acts or omissions that constitute an offence under a
10                                section or Chapter of The Criminal Code that is
                                  mentioned in paragraph (a) or (b) of the definition
                                  of "sexual offence" in this subsection.
                                                                                         ".
          (2)   Section 36A(1) is amended in the definition of "sexual offence"
15              as follows:
                    (a)        by inserting after paragraph (b) the following
                               paragraph --
                          "
                              (ba)   under a repealed Code section;
20                                                                                       ";
                    (b)        in paragraph (c) by deleting "or (b)" and inserting
                               instead --
                               " , (b) or (ba) ";
                    (c)        in paragraph (d) by deleting "or (b)" and inserting
25                             instead --
                               " , (b) or (ba) ".




     page 6
                                                Acts Amendment (Evidence) Bill 1999
                                           Evidence Act 1906 amended         Part 2
                                                 General amendments      Division 2
                                                                                s. 8



     8.             Section 36BD amended
                    Section 36BD is amended by inserting after "The Criminal
                    Code" --
                    "     (as enacted at any time)    ".

 5   9.             Section 36C amended
          (1)       Section 36C(1) is amended by deleting "subsection (5)" and
                    inserting instead --
                    "     subsections (5) and (6)    ".
          (2)       Section 36C(2) is amended by deleting "not exceeding $500."
10                  and inserting instead --
                    "
                          of, in the case of an individual, $5 000 or, in the case of
                          a body corporate, $25 000.
                                                                                        ".
15        (3)       After section 36C(5) the following subsection is inserted --
                "
                    (6)     Nothing in this section prohibits the publication or
                            broadcasting of matter identifying a complainant if --
                              (a) prior to the publication or broadcasting that
20                                 complainant authorized the publication or
                                   broadcasting of the matter; and
                              (b) at the time the complainant authorized the
                                   publication or broadcasting, he or she was at
                                   least 18 years old and was not a person who,
25                                 because of mental impairment (as defined in
                                   The Criminal Code), is incapable of making
                                   reasonable judgments in respect of the
                                   publication or broadcasting of such matters.
                                                                                        ".

                                                                                 page 7
     Acts Amendment (Evidence) Bill 1999
     Part 2      Evidence Act 1906 amended
     Division 2  General amendments
     s. 10



     10.      Section 73A replaced
              Section 73A is repealed and the following section is inserted
              instead --
     "
 5         73A.     Admissibility of reproductions (best evidence rule
                    modified)
              (1)   A document that accurately reproduces the contents of
                    another document is admissible in evidence before a
                    court in the same circumstances, and for the same
10                  purposes, as that other document, whether or not that
                    other document still exists.
              (2)   In determining whether a particular document
                    accurately reproduces the contents of another, a court is
                    not bound by the rules of evidence and --
15                    (a) may rely on its own knowledge of the nature
                            and reliability of the processes by which the
                            reproduction was made;
                     (b)   may make findings based on a certificate in the
                           prescribed form signed by a person with
20                         knowledge and experience of the processes by
                           which the reproduction was made;
                     (c)   may make findings based on a certificate in the
                           prescribed form signed by a person who has
                           compared the contents of both documents and
25                         found them to be identical; or
                     (d)   may act on any other basis it considers
                           appropriate in the circumstances.
              (3)   This section applies to a reproduction made --
                     (a) by an instantaneous process;



     page 8
                                     Acts Amendment (Evidence) Bill 1999
                                Evidence Act 1906 amended         Part 2
                                      General amendments      Division 2
                                                                    s. 11



                  (b)   by a process in which the contents of a
                        document are recorded by photographic,
                        electronic or other means, and the reproduction
                        is subsequently produced from that record;
 5                (c)   by a process prescribed for the purposes of this
                        section; or
                  (d)   in any other way.
           (4)   If a reproduction is made by a process referred to in
                 subsection (3)(c), the process shall be presumed to
10               reproduce accurately the contents of the document
                 purportedly reproduced unless the contrary is proved.
           (5)   If so requested by a party to the proceedings, a court
                 shall give reasons for determining that a document is or
                 is not an accurate reproduction.
15         (6)   A person who signs a certificate for the purposes of
                 this section knowing it to be false or misleading in any
                 material particular commits an indictable offence and is
                 liable on conviction to imprisonment for 7 years.
                                                                            ".

20   11.   Various sections repealed
           The following sections are repealed:
            (a) sections 73C to 73M;
            (b) section 73P;
            (c) sections 73R, 73S and 73T;
25          (d) section 73V.

     12.   Section 73N amended
           Section 73N is amended by deleting "under this Division".



                                                                     page 9
     Acts Amendment (Evidence) Bill 1999
     Part 2      Evidence Act 1906 amended
     Division 2  General amendments
     s. 13



     13.          Section 73Q amended
                  Section 73Q is amended by deleting "pursuant to this Division".

     14.          Section 79B amended
                  Section 79B is amended by inserting before the definition of
 5                "derived" the following definitions --
                  "
                        "business" means any business, occupation, trade or
                            calling and includes the business of any
                            governmental body or instrumentality and of any
10                          local government;
                        "business record" means a book of account or other
                            document prepared or used in the ordinary course
                            of a business for the purpose of recording any
                            matter relating to the business;
15                                                                                 ".

     15.          Section 79C amended
           (1)    After section 79C(2) the following subsections are inserted --
     "
                 (2a)   Notwithstanding subsections (1) and (2), in any
20                      proceedings where direct oral evidence of a fact or
                        opinion would be admissible, any statement in a
                        document and tending to establish the fact or opinion
                        shall, on production of the document, be admissible as
                        evidence of that fact or opinion if --
25                        (a) the statement is, or directly or indirectly
                                reproduces, or is derived from, a business
                                record; and
                          (b) the court is satisfied that the business record is
                                a genuine business record.

     page 10
                                          Acts Amendment (Evidence) Bill 1999
                                     Evidence Act 1906 amended         Part 2
                 Amendments about evidence of children and special Division 3
                                                        witnesses
                                                                         s. 16


                 (2b)     Where a statement referred to in subsection (2a) is
                          made by a qualified person that person shall not be
                          called as a witness unless the court orders otherwise.
                                                                                   ".
 5         (2)    Section 79C(4) is amended by deleting "(1) and (2)" and
                  inserting instead --
                  "     (1), (2) and (2a)   ".

     16.          Section 79G repealed
                  Section 79G is repealed.

10   17.          Section 92A replaced
                  Section 92A is repealed and the following section is inserted
                  instead --
     "
             92A.         Application of sections 89 to 92 to Australian and
15                        foreign banks
                          Sections 89, 90, 91 and 92 apply to bankers' books,
                          and banks and branches of banks, whether within or
                          outside the Commonwealth.
                                                                                   ".

20         Division 3 -- Amendments about evidence of children and
                             special witnesses
     18.          Section 106A amended
           (1)    Section 106A is amended as follows:
                   (a) by deleting "to 106S" and substituting --
25                       " to 106T ";
                   (b) by deleting the definition of "trial".

                                                                              page 11
     Acts Amendment (Evidence) Bill 1999
     Part 2      Evidence Act 1906 amended
     Division 3  Amendments about evidence of children and special
                 witnesses
     s. 19


           (2)        Section 106A is amended in the definition of "video-taped
                      recording of evidence" as follows:
                        (a) by deleting "or" after paragraph (a);
                        (b) by deleting the full stop after paragraph (b) and inserting
 5                           instead --
                             " ; or ";
                        (c) by inserting the following paragraph --
                            "
                                  (c)   pursuant to section 106N(3a) or (5).
10                                                                                         ".
     19.              Section 106H amended
           (1)        Section 106H(2) is repealed and the following subsections are
                      inserted instead --
                 "
15                    (2)       If a relevant statement is to be admitted, evidence of
                                the making and content of the affected child's
                                statement shall be given by the person to whom the
                                affected child made the statement.
                     (2a)       Subsection (1) does not affect the operation of section
20                              106G.
                     (2b)       A written statement by a person to whom an affected
                                child made a relevant statement is admissible under
                                section 69(2) of the Justices Act 1902 if the
                                requirements of that subsection are complied with.
25                   (2c)       A relevant statement recorded on video-tape is
                                admissible to the same extent as if it were given orally
                                in the proceeding in accordance with the usual rules
                                and practice of the Court concerned.
                                                                                           ".

     page 12
                                              Acts Amendment (Evidence) Bill 1999
                                         Evidence Act 1906 amended         Part 2
                     Amendments about evidence of children and special Division 3
                                                            witnesses
                                                                             s. 20


           (2)       Section 106H(3) is amended by deleting "subsection (1)" and
                     inserting instead --
                     " this section      ".

     20.             Section 106I amended
 5                   Section 106I(1) is repealed and the following subsection is
                     inserted instead --
                 "
                     (1)   Where a Schedule 7 proceeding has been commenced
                           in a Court, the prosecutor may apply to a judge of that
10                         Court for an order directing --
                             (a) that the whole or a part of the affected child's
                                  evidence in chief be --
                                       (i)taken and recorded on video-tape; and
                                      (ii)presented to the Court in the form of
15                                        that video-taped recording,
                                  and that the affected child be available at the
                                  proceeding to be cross-examined and
                                  re-examined; or
                            (b)   that the whole of the affected child's evidence
20                                (including cross-examination and
                                  re-examination) be --
                                     (i) taken at a special hearing and recorded
                                          on video-tape; and
                                    (ii) presented to the Court in the form of
25                                        that video-taped recording,
                                  and that the affected child not be present at the
                                  proceeding.
                                                                                      ".



                                                                               page 13
     Acts Amendment (Evidence) Bill 1999
     Part 2      Evidence Act 1906 amended
     Division 3  Amendments about evidence of children and special
                 witnesses
     s. 21


     21.             Section 106J amended
                     Section 106J(1)(b) is deleted and the following paragraph is
                     inserted instead --
                          "
 5                           (b) the manner in which any cross-examination and
                                   any re-examination of the affected child is to be
                                   conducted in the Schedule 7 proceeding.
                                                                                       ".
     22.             Section 106K amended
10         (1)       Section 106K(1)(a) is deleted and the following paragraph is
                     inserted instead --
                          "
                             (a) directions, with or without conditions, as to the
                                   conduct of the special hearing, including
15                                 directions as to --
                                      (i) whether the affected child is to be in the
                                           courtroom, or in a separate room, when
                                           the child's evidence is being taken; and
                                     (ii) the persons who may be present in the
20                                         same room as the affected child when
                                           the child's evidence is being taken;
                                                                                       ".
           (2)       Section 106K(3) is repealed and the following subsection is
                     inserted instead --
25               "
                     (3)   At a special hearing ordered under subsection (1) --
                            (a) the defendant --
                                     (i) is not to be in the same room as the
                                          affected child when the child's evidence
30                                        is being taken; but


     page 14
                                              Acts Amendment (Evidence) Bill 1999
                                         Evidence Act 1906 amended         Part 2
                     Amendments about evidence of children and special Division 3
                                                            witnesses
                                                                             s. 23


                                         (ii) is to be capable of observing the
                                              proceedings by means of a closed circuit
                                              television system and is at all times to
                                              have the means of communicating with
 5                                            his or her counsel;
                               (b)    no person other than a person authorized by the
                                      judge under subsection (1) is to be present in
                                      the same room as the affected child when the
                                      child's evidence is being taken;
10                              (c)   subject to the control of the presiding judge, the
                                      affected child is to give his or her evidence and
                                      be cross-examined and re-examined; and
                               (d)    except as provided by this section, the usual
                                      rules of evidence apply.
15                                                                                         ".
           (3)        Section 106K(4) is repealed.

     23.              Section 106L repealed
                      Section 106L is repealed.

     24.              Section 106M amended
20                    Section 106M(1) and (2) are amended by deleting "trial" in the
                      3 places it occurs and in each place inserting instead --
                      "     proceeding      ".

     25.              Section 106N amended
           (1)        After section 106N(3) the following subsection is inserted --
25               "
                     (3a)     Where arrangements are made under subsection (2)(a)
                              or (b) the affected child's evidence is to be recorded on
                              video-tape.
                                                                                           ".

                                                                                   page 15
     Acts Amendment (Evidence) Bill 1999
     Part 2      Evidence Act 1906 amended
     Division 3  Amendments about evidence of children and special
                 witnesses
     s. 26


           (2)        After section 106N(4) the following subsection is inserted --
                 "
                      (5)   Where arrangements are made under subsection (4) and
                            where the necessary facilities are available to do so, the
 5                          affected child's evidence is to be recorded on video-tape.
                                                                                         ".
     26.              Section 106R amended
           (1)        Section 106R(4)(b) is deleted and the following paragraphs are
                      inserted instead --
10                         "
                              (b) in any proceeding for an offence, that the
                                    special witness's evidence be --
                                       (i) taken at a special hearing and recorded
                                            on video-tape; and
15                                    (ii) presented to the Court in the form of
                                            that video-taped recording,
                                    and that the special witness not be present at the
                                    proceeding for the offence;
                              (c) in any proceeding for an offence, that an
20                                  arrangement of the kind described in
                                    section 106N(2) or (4) is to be made.
                                                                                       ".
           (2)        Section 106R(4a) is repealed and the following subsection is
                      inserted instead --
25               "
                     (4a)   Where an arrangement under subsection (4)(b) or (c) is
                            directed to be made, section 106K or 106N, as the case
                            requires, applies, with any necessary changes, as if the
                            special witness were an affected child.
30                                                                                       ".


     page 16
                                      Acts Amendment (Evidence) Bill 1999
                                 Evidence Act 1906 amended         Part 2
             Amendments about evidence of children and special Division 3
                                                    witnesses
                                                                     s. 27


     27.     Section 106S amended
             Section 106S(1) is amended by deleting "trial." and inserting
             instead --
             " proceeding. ".
 5   28.     Section 106T inserted
             After section 106S the following section is inserted --
     "
           106T.   Use of recordings etc.
             (1)   Evidence of an affected child recorded on video-tape
10                 under section 106J, 106K or 106N in relation to a
                   Schedule 7 proceeding is admissible in any hearing in
                   relation to that proceeding to the same extent as if it
                   were given orally in the hearing in accordance with the
                   usual rules and practice of the Court concerned.
15           (2)   Evidence of a special witness recorded on video-tape
                   under section 106K or 106N in relation to a proceeding
                   is admissible in any hearing in relation to that
                   proceeding to the same extent as if it were given orally
                   in the hearing in accordance with the usual rules and
20                 practice of the Court concerned.
             (3)   A judge of a Court before which it is proposed to
                   adduce video-taped evidence under subsection (1) or
                   (2) in a hearing may order that the affected child or
                   special witness, as the case may be, attend the Court
25                 for the purposes of giving further evidence in
                   clarification of the video-taped evidence.
             (4)   The making of an order under subsection (3) does not
                   prevent the making of an application under section
                   106I or of an order under section 106J, 106K, 106N or
30                 106R(1)(b) in relation to the giving of the further
                   evidence.

                                                                      page 17
     Acts Amendment (Evidence) Bill 1999
     Part 2      Evidence Act 1906 amended
     Division 3  Amendments about evidence of children and special
                 witnesses
     s. 29


               (5)     In this section --
                       "hearing", in relation to a proceeding, means --
                            (a) a preliminary hearing under the Justices
                                  Act 1902 in relation to the proceeding;
 5                          (b) the trial or hearing of the proceeding; or
                            (c) a retrial or rehearing of the proceeding.
                                                                                ".

     29.       References to "pre-trial hearing" amended
               The provisions listed in the Table to this section are each
10             amended by deleting "pre-trial" wherever it occurs and in each
               place inserting instead --
               "     special   ".
                                          Table
               s. 106A                              s. 106M(3)
               s. 106K(5)                           s. 106S(1)
               s. 106M(1)                           s. 106S(2)

     30.       Schedule 7 amended
15             Schedule 7 is amended in clause 1 as follows:
                 (a) by inserting before "A proceeding" the subclause
                      designation "(1)";
                (b) in paragraph (a) by inserting after "Part B or C" --
                      " or under a repealed Code section ";
20               (c) in paragraph (c) by inserting after "Part C" --
                      " or under a repealed Code section ";




     page 18
                                  Acts Amendment (Evidence) Bill 1999
                             Evidence Act 1906 amended         Part 2
         Amendments about evidence of children and special Division 3
                                                witnesses
                                                                 s. 30


           (d)    at the end of clause 1 by inserting the following
                  subclause --
     "
         (2)     In subclause (1) --
 5               "repealed Code section" means a repealed section of The
                     Criminal Code that, before it was repealed, enacted an
                     offence constituted by acts or omissions that are
                     substantially the same as the acts or omissions that
                     constitute an offence under a section or Chapter of The
10                   Criminal Code that is mentioned in Part B or C, as the
                     case requires.
                                                                               ".




                                                                        page 19
     Acts Amendment (Evidence) Bill 1999
     Part 3      Justices Act 1902 amended

     s. 31



                         Part 3 -- Justices Act 1902 amended
     31.           Act amended by this Part
                   The amendments in this Part are to the Justices Act 1902*.
                   [* Reprinted as at 4 June 1997.
 5                    For subsequent amendments see 1998 Index to Legislation of
                      Western Australia, Table 1, pp. 132-3.]

     32.           Section 69 replaced
                   Section 69 is repealed and the following section is inserted
                   instead --
10   "
             69.          Evidence of witnesses, statements may be admitted
                          on indictable charges
                   (1)    Every witness shall be examined upon oath, or in such
                          other manner as is prescribed or allowed by the Acts in
15                        force for the time being relating to giving evidence in
                          courts of justice.
                   (2)    Subject to subsection (3) and despite any other Act,
                          where a person is charged with an indictable offence
                          and the charge is not dealt with summarily, a written
20                        statement of any person --
                            (a) may, on a preliminary hearing, be tendered to
                                  the justices in evidence and is admissible as
                                  evidence before it to the like extent as oral
                                  evidence to the like effect by that person; or
25                          (b) may, where there is no preliminary hearing, be
                                  tendered to the justices to be used in evidence
                                  for the purposes of the trial or sentencing of the
                                  defendant,


     page 20
                                 Acts Amendment (Evidence) Bill 1999
                            Justices Act 1902 amended         Part 3

                                                                   s. 32



           if --
              (c)   the statement complies with the conditions in
                    subsection (4);
             (d)    before the statement is so tendered, a copy of it
 5                  has been served, by or on behalf of the party
                    proposing to tender it, on each other party to
                    the proceedings and, where the party proposing
                    to tender it is the prosecutor, it has been served
                    and lodged in accordance with section 101A(e);
10           (e)    where the statement refers to any other
                    document or exhibit, the copy of the statement
                    served under paragraph (d) is accompanied by a
                    copy or description of the other document or
                    exhibit; and
15           (f)    before the statement is so tendered, no other
                    party to the proceedings objects to its tender.
     (3)   Despite any other Act, where a person is charged with
           an indictable offence and the charge is not dealt with
           summarily, a statement of an affected child, as defined
20         in section 106A of the Evidence Act 1906 --
             (a) may, on a preliminary hearing, be tendered to a
                   court of summary jurisdiction in evidence and
                   is admissible as evidence before it to the like
                   extent as oral evidence to the like effect by that
25                 person; or
             (b) may, where there is no preliminary hearing, be
                   tendered to a court of summary jurisdiction to
                   be used in evidence for the purposes of the trial
                   or sentencing of the defendant,




                                                                 page 21
     Acts Amendment (Evidence) Bill 1999
     Part 3      Justices Act 1902 amended

     s. 32



                     if --
                        (c)   in the case of a written statement, it complies
                              with the conditions in subsection (4);
                       (d)    in the case of an electronically recorded
 5                            statement, it complies with the conditions in
                              subsection (5);
                       (e)    before the statement is so tendered, a copy of it
                              has been served and lodged in accordance with
                              section 101A(e); and
10                     (f)    where the statement refers to any other
                              document or exhibit, the copy of the statement
                              served under paragraph (e) is accompanied by a
                              copy or description of the other document or
                              exhibit.
15             (4)   The conditions with which a written statement must
                     comply are as follows --
                       (a) where the statement is made by a person under
                            the age of 18 years, it gives his age;
                       (b) unless the statement is made by a person under
20                          the age of 12 years, it contains a declaration by
                            the person who made it to the effect that it is
                            true to the best of his knowledge and belief and
                            that he made the statement knowing that, if it
                            were tendered in evidence, he would be guilty
25                          of a crime if he has wilfully included in the
                            statement anything which he knew to be false
                            or did not believe to be true;
                       (c) the statement purports to be signed by the
                            person who made it; and




     page 22
                                 Acts Amendment (Evidence) Bill 1999
                            Justices Act 1902 amended         Part 3

                                                                   s. 32



            (d)    where the statement is made by a person who
                   cannot read, it is read aloud to him before he
                   signs it, and it is accompanied by a declaration
                   of the person who read the statement to the
 5                 effect that it was so read.
     (5)   The conditions with which an electronically recorded
           statement must comply are as follows --
             (a) the statement identifies the person making it;
             (b) the statement gives the age of the person
10                making it; and
             (c) unless the statement is made by a person under
                  the age of 12 years, it contains a declaration by
                  the person who made it to the effect that --
                     (i) the recording of the statement (without
15                        this declaration) has been played back to
                          him; and
                    (ii) the statement is true to the best of his
                          knowledge and belief and that he made
                          the statement knowing that, if it were
20                        tendered in evidence, he would be guilty
                          of a crime if he has wilfully included in
                          the statement anything which he knew
                          to be false or did not believe to be true.
     (6)   A statement is deemed to be tendered in evidence
25         under this section at the time that the statement is
           tendered to the court.
     (7)   Any document or object referred to as an exhibit and
           identified in a statement tendered in evidence under
           this section is deemed to have been produced before
30         the court and identified by the maker of the statement.



                                                                  page 23
     Acts Amendment (Evidence) Bill 1999
     Part 3      Justices Act 1902 amended

     s. 33



                     (8)   A statement tendered in evidence under this section is
                           admissible as evidence before any court of competent
                           jurisdiction, to the like extent that a deposition of the
                           person who made the statement would be so
 5                         admissible.
                     (9)   Any person who, in a statement tendered in evidence
                           under this section, has wilfully included anything
                           which he knew to be false or did not believe to be true
                           is guilty of a crime and is liable to imprisonment for
10                         7 years.
                                                                                       ".

     33.             Section 73 amended
           (1)       Section 73(2) is amended as follows:
                      (a) by deleting "section 69" and inserting instead --
15                          " section 69(2) or (3) ";
                      (b) in paragraph (a) by deleting "subsection (2)(a) of that
                            section" and inserting instead --
                            " section 69(2)(a) or (3)(a) ";
                      (c) in paragraph (c) by inserting after "may," --
20                          " unless subsection (3) or (4) applies, ".
           (2)       After section 73(2) the following subsections are inserted --
                 "
                     (3)   If a written statement tendered in evidence under
                           section 69(2) contains a relevant statement (as defined
25                         in section 106H of the Evidence Act 1906), the justices
                           shall not require the affected child to attend before
                           them and give evidence unless they are satisfied that
                           there are special circumstances that justify the child
                           being so called.

     page 24
                                      Acts Amendment (Evidence) Bill 1999
                                 Justices Act 1902 amended         Part 3

                                                                      s. 34



           (4)   Where, on a preliminary hearing a statement of an
                 affected child (as defined in section 106A of the
                 Evidence Act 1906) is tendered in evidence under
                 section 69(3), the justices --
 5                 (a) shall not require the affected child to attend
                         before them and give evidence unless they are
                         satisfied that there are special circumstances
                         that justify the child being so called; and
                   (b) shall, if the statement is electronically recorded
10                       and if a party to the proceeding so requests,
                         cause to be played before them, such part of the
                         statement as is admissible in evidence by virtue
                         of section 69(3)(a).
           (5)   Where, on a preliminary hearing, a video-tape of
15               evidence of an affected child is admitted under section
                 106T of the Evidence Act 1906, the justices --
                   (a) shall not require the affected child to attend
                        before them and give evidence unless they are
                        satisfied that there are special circumstances
20                      that justify the child being so called,
                        notwithstanding section 106T(3) of that Act;
                        and
                   (b) shall, if a party to the proceeding so requests,
                        cause to be played before them, such part of the
25                      video-tape as is admissible in evidence.
                                                                            ".

     34.   Section 101A amended
           Section 101A(e) is amended as follows:
             (a) by deleting "written";




                                                                    page 25
     Acts Amendment (Evidence) Bill 1999
     Part 3      Justices Act 1902 amended

     s. 35



                     (b)        by deleting "section 69(2);" and inserting instead --
                                "
                                      section 69(2) or (3) and notice of any evidence
                                      recorded on video-tape which the prosecution
 5                                    proposes to adduce;
                                                                                        ".

     35.         Section 101B amended
           (1)   Section 101B(1) is amended by inserting after "section
                 73(1)," --
10               "
                               and after any evidence recorded on video-tape is
                               admitted under section 106T(1) or (2) of the Evidence
                               Act 1906,
                                                                                        ".
15         (2)   Section 101B(2)(b) is deleted and the following paragraph is
                 inserted instead --
                           "
                                (b)   objects to any written statement being tendered
                                      under section 69(2).
20                                                                                      ".

     36.         Section 101C amended
                 Section 101C is amended as follows:
                   (a) in paragraph (a)(ii) by deleting "section 69" and
                        inserting instead --
25                      " section 69(2) ";
                  (b) by deleting "and" after paragraph (b)(ii);




     page 26
                                      Acts Amendment (Evidence) Bill 1999
                                 Justices Act 1902 amended         Part 3

                                                                         s. 37



            (c)   after paragraph (b)(ii) by inserting the following
                  subparagraphs --
                       "
                         (iia) shall require that all electronically
 5                             recorded statements that are, under
                               section 69(3), to be tendered to them to
                               be used in evidence shall be so tendered
                               and shall receive the statements, which
                               shall not be played in court;
10                       (iib) shall require that any video-tape of
                               evidence that is, under section 106T of
                               the Evidence Act 1906, to be admitted
                               shall be tendered and shall receive the
                               video-tape which shall not be played in
15                             court; and
                                                                            ";
            (d)   in paragraphs (b)(iii) and (c), by deleting "written
                  statements," and inserting instead --
                  " statements, or the video-tapes, if any, ".

20   37.   Section 102 amended
           Section 102(1) is amended as follows:
             (a) in paragraph (a) by deleting "section 69" and inserting
                  instead --
                  " section 69(2) or (3) ";
25          (b) by deleting "and" after paragraph (a);
             (c) by deleting the comma after paragraph (b) and inserting
                  instead a semicolon;




                                                                     page 27
     Acts Amendment (Evidence) Bill 1999
     Part 3      Justices Act 1902 amended

     s. 38



                   (d)     by inserting after paragraph (b) the following
                           paragraphs --
                     "
                           (c)   shall cause to be played the parts of electronically
 5                               recorded statements that are required to be so
                                 played under section 73(4)(b); and
                           (d)   shall cause to be played the parts of any
                                 video-tape that are required to be so played
                                 under section 73(5)(b),
10                                                                                      ".

     38.       Ninth Schedule amended
               The Ninth Schedule is amended as follows:
                   (a)     in the second paragraph by deleting "written";
                   (b)     in the second paragraph by deleting "These papers" and
15                         inserting instead --
                           " The statements and any other papers ";
                   (c)     in the third paragraph by inserting after the last sentence
                           the following --
               "
20                       If any electronically recorded statements of children are
                         tendered they will be played in court.
                                                                                        ";
                   (d)     in the fourth paragraph by deleting "section 69(3)" and
                           inserting instead --
25                         " section 69(2) ";
                   (e)     in the sixth paragraph by deleting "written" in the 2
                           places where it occurs;
                   (f)     in the sixth paragraph by inserting after "read" --
                           " or played ".


     page 28
                                             Acts Amendment (Evidence) Bill 1999
            Children's Court of Western Australia Act 1988 amended        Part 4

                                                                               s. 39



             Part 4 -- Children's Court of Western Australia
                          Act 1988 amended
     39.         Act amended by this Part
                 The amendments in this Part are to the Children's Court of
 5               Western Australia Act 1988*.
                 [* Reprinted as at 23 April 1996.
                    For subsequent amendments see 1998 Index to Legislation of
                    Western Australia, Table 1, p. 37.]

     40.         Section 19B amended
10         (1)   Section 19B(4)(a) is deleted and the following paragraph is
                 inserted instead --
                     "
                         (a)   the court, on its own motion or on the
                               application of the child, may direct the
15                             prosecutor --
                                  (i) to serve or cause to be served on the
                                      child (or the child's solicitor or counsel)
                                      and to lodge with the clerk, within such
                                      time as is specified, a copy of any
20                                    statement made, in accordance with
                                      section 69 of the Justices Act 1902, by a
                                      person whose evidence the prosecution
                                      proposes to adduce at the hearing of the
                                      charge; and
25                               (ii) to afford the child (or the child's
                                      solicitor or counsel) reasonable
                                      opportunity to inspect any material
                                      exhibits that the prosecution proposes to
                                      tender at the hearing of the charge;
30                                                                                  ".

                                                                            page 29
     Acts Amendment (Evidence) Bill 1999
     Part 4      Children's Court of Western Australia Act 1988 amended

     s. 40



        (2)       After section 19B(4) the following subsections are inserted --
              "
                  (5)   If a copy of a statement of a person is served in
                        accordance with a direction made under
 5                      subsection (4)(a)(i), the original of the statement may
                        be produced and given in evidence at the trial of the
                        child --
                          (a) if it is proved to the satisfaction of the Court
                                that the person is dead, or out of Western
10                              Australia, or so ill as not to be able to travel,
                                although there may be a prospect of the
                                person's recovery; or
                          (b) if the person is kept out of the way by the child.
                  (6)   If there is a prospect of the recovery of a person proved
15                      to be too ill to travel, the Court shall not be obliged to
                        receive the statement, but may postpone the trial.
                                                                                     ".




     page 30
                                           Acts Amendment (Evidence) Bill 1999
                                      The Criminal Code amended         Part 5

                                                                             s. 41



                   Part 5 -- The Criminal Code amended
     41.         Code amended by this Part
                 The amendments in this Part are to The Criminal Code*.
                 [* Reprinted as at 21 April 1997 as the Schedule to the Criminal
 5                  Code Act 1913 appearing in Appendix B to the Criminal
                    Code Compilation Act 1913.
                    For subsequent amendments see 1998 Index to Legislation of
                    Western Australia, Table 1, p. 63.]

     42.         Section 635B amended
10               Section 635B(1)(b) is deleted and the following paragraph is
                 inserted instead --
                     "
                         (b)   a written statement of a person that is made, at
                               any time, in accordance with section 69(4) of
15                             the Justices Act 1902 and, if it refers to any
                               other document or exhibit, is accompanied by a
                               copy or description of the other document or
                               exhibit,
                                                                                  ".

20   43.         Section 729 amended
           (1)   Section 729 is amended as follows:
                  (a) by inserting before "When" in the first paragraph the
                        subsection designation " (1) ";
                  (b) by inserting before "When" in the second paragraph the
25                      subsection designation " (2) ".




                                                                           page 31
     Acts Amendment (Evidence) Bill 1999
     Part 5      The Criminal Code amended

     s. 43



        (2)       Section 729 is amended by inserting after the second paragraph
                  the following subsections --
              "
                  (3)   When an indictment is presented in a court in the
 5                      circumstances referred to in subsection (1), the court
                        may, on its own motion or on the application of the
                        accused person, direct the Crown --
                          (a) to serve the accused person and to lodge with
                               the court, within such time as is specified, a
10                             copy of any statement made, in accordance
                               with section 69 of the Justices Act 1902, by a
                               person whose evidence the Crown proposes to
                               adduce at the trial; and
                          (b) to afford the accused person reasonable
15                             opportunity to inspect any material exhibits that
                               the Crown proposes to tender at the trial.
                  (4)   If a copy of a statement of a person is served in
                        accordance with a direction made under
                        subsection (3)(a), the original of the statement may be
20                      produced and given in evidence at the trial --
                          (a) if it is proved to the satisfaction of the court
                                that the person is dead, or out of Western
                                Australia, or so ill as not to be able to travel,
                                although there may be a prospect of the
25                              person's recovery; or
                          (b) if the person is kept out of the way by the
                                accused person.




     page 32
                              Acts Amendment (Evidence) Bill 1999
                         The Criminal Code amended         Part 5

                                                                 s. 43



    (5)   If there is a prospect of the recovery of a person proved
          to be too ill to travel, the court shall not be obliged to
          receive the statement, but may postpone the trial,
          discharging a jury if one has been empanelled if it
5         thinks fit.
                                                                       ".




 


[Index] [Search] [Download] [Related Items] [Help]