Commonwealth Numbered Regulations - Explanatory Statements

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

EVIDENCE REGULATIONS 1995 NO. 44

STATUTORY RULES 1995 No. 44

Issued by the Authority of the Minister for Justice

Evidence Act 1995

Evidence Regulations

Section 197 of the Act provides, in part, that the Governor-General may make regulations not inconsistent with the Act prescribing matters required or permitted by the Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

The purposes of the Regulations are to preserve the operation of some provisions of the Australian Capital Territory Evidence Act 1971 as requested by ACT authorities, set out requirements for the giving of notice of particular evidence under the Act and provide for forms for use under the Act.

The Regulations

•       specify, in accordance with the requests of the ACT authorities, for the purposes of paragraph 8(4)(a) of the Act provisions of the Australian Capital Territory Evidence Act 1971 whose operation is not to be affected by the Act;

•       set out requirements relating to the giving of notice in writing under subsection 67(1) of the Act of an intention to adduce hearsay evidence;

•       set out requirements relating to the giving of notice in writing under subsection 97(1) of the Act of an intention to adduce tendency evidence;

•       set out requirements relating to the giving of notice in writing under subsection 98(1) of the Act of an intention to adduce coincidence evidence;

•       provide a form in which a certificate under section 128 of the Act may be given to a witness who has elected or is required to give self-incriminatory evidence:

•       provide forms of affidavit under sections 179 and 180 of the Act for fingerprint experts for a State or Territory police force or for the Australian Federal Police to give evidence of the identity of persons alleged to have been convicted of offences.

Details of the Regulations are as follows:

Regulation 1 is formal.

Regulation 2 provides for the Regulations to commence on 18 April 1995, which is when the Act, other than Part 1.1 and the Dictionary, will commence.

Regulation 3 contains definitions.

Regulation 4 specifies provisions of the Australian Capital Territory Evidence Act 1971 whose operation is not to be affected by the Act.

Regulation 5 sets out requirements relating to the giving of notice in writing of an intention to adduce hearsay evidence of a representation made by a person.

The notice must state the substance of that evidence and, so far as they are known to the party, the substance of all other relevant representations made by the person.

The notice must also state, so far as they are known to the party, particulars of the date, time, place and circumstances in which such representations were made and the names and addresses of the persons by whom and to whom they were made.

If the party intends to adduce the evidence in a civil proceeding and the person who made the representation is available to give evidence the notice must state particulars of the facts that the party will rely on to establish that it would cause undue expense or undue delay, or would not be reasonably practicable, to call the person to give evidence.

If the representation was made by a person who is not available to give evidence, the notice must state particulars of the facts on the basis of which it is alleged that the person is not available concerning that fact in the proceeding.

Regulation 6 provides requirements relating to the giving of notice in writing of an intention to adduce tendency or coincidence evidence.

Tendency evidence is evidence of the character, reputation or conduct of a person, or a tendency he or she has or had, that a party adduces to prove the person has or had a tendency to act in a particular way or to have a particular state of mind.

A notice of an intention to adduce tendency evidence must state the substance of the evidence.

If the tendency evidence consists of or includes evidence of the conduct of the person, the notice must also state, so far as they are known to the party, the date, time, place and circumstances in which the conduct occurred and the names and addresses of each person who witnessed the conduct.

Coincidence evidence is evidence of 2 or more related events, being events that are substantially and relevantly similar occurring in circumstances which are substantially similar, adduced to prove that because of the improbability of the events occurring coincidentally a person did a particular act or had a particular state of mind.

A notice in writing of an intention to adduce coincidence evidence must state the substance of the evidence and, so far as they are known by the party, the date, time place and circumstances in which each of the events occurred and the names and addresses of each person who witnessed each of the events.

Regulation 7 provides a form in which a certificate may be given to a witness who has elected or is required to give self-incriminating evidence. The Act provides that the effect of the certificate is that the self-incriminating evidence and evidence of any information, document or thing obtained as a direct or indirect consequence of the witness having given that evidence cannot be used against the witness in a proceeding in an Australian court, other than a proceeding in respect of the falsity of the evidence.

Regulation 8 provides a form of affidavit for use by a member of a police force of a State or Territory who is a fingerprint expert for that police force to give evidence of the identity of a person alleged to have been convicted of an offence in the State or Territory.

Regulation 9 provides for a form of affidavit for use by a member of the Australian Federal Police who is a fingerprint expert for the Australian Federal Police to give evidence of the identity of a person alleged to have been convicted of an offence against a law of the Commonwealth.