Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.

Overview of Bill

The object of this Bill is to make miscellaneous amendments to the Evidence Act
1995 (the Principal Act) so as to implement (with some modifications and
departures) the majority of the recommendations made by the Australian, New South
Wales and Victorian Law Reform Commissions in their collaborative report on the
review of the operation of the provisions of the Uniform Evidence Acts in force in
New South Wales, the Commonwealth, the Australian Capital Territory and
Tasmania (Uniform Evidence Law: Report (2005)) (the Report). The amendments
are (with very minor exceptions) uniform with amendments contained in a model
Uniform Evidence Bill endorsed by the Standing Committee of Attorneys General on
26 July 2007.

The Bill includes amendments to make the following key changes:

(a) the hearsay rule—to provide further guidance on the definition of hearsay
evidence (for example, when an assertion is intended) and to clarify the
operation of the exception in section 60 of the Principal Act for evidence
relevant for a non-hearsay purpose,

(b) the admissibility of expert evidence—to enable a court to use expert opinion
to inform itself about the competence of a witness and to provide a new
exception to the credibility rule where a person has specialised knowledge
based on the person’s training, study or experience,

(c) admissions in criminal proceedings—to ensure that evidence of such
admissions that is not first-hand is excluded from the ambit of section 60 of
the Principal Act and that the reliability of an admission made by a defendant
is tested where the admission is made to, or in the presence of, an investigating
official performing functions in connection with the investigation or as a result
of an act of another person capable of influencing the decision whether to
prosecute,

(d) coincidence evidence—to reduce the threshold for admitting coincidence
evidence to require consideration of similarities in events or circumstances,
rather than the existing threshold that there are similarities in events and
circumstances,

(e) credibility of witnesses—to ensure that evidence which is relevant both to
credibility and a fact in issue, but that is not admissible for the latter purpose,
is subject to the same rules as other credibility evidence and to enable evidence
to be adduced with the leave of the court to rebut denials and non-admissions
in cross-examination,

(f) advance rulings on evidentiary issues—to make it clear that the court has the
power to make an advance ruling or make an advance finding in relation to an
evidentiary issue,

(g) warnings and directions to the jury—to make it clear that a trial judge is not
to give a warning about the reliability of the evidence of a child solely on
account of the age of the child, and to clarify the scope of information to be
given to the jury about the forensic disadvantage a defendant may have
suffered because of the consequences of delay, and the circumstances in which
such information is to be given,

(h) manner and form of questioning witnesses—to enable a court on its own
motion to direct that a witness give evidence wholly or partly in narrative form
and to make further provision with respect to the improper questioning of
witnesses in cross-examination in civil and criminal proceedings.

The Bill also makes miscellaneous amendments for the following purposes:

(a) to clarify the application of the Act,

(b) to introduce a test of general competence to give sworn and unsworn evidence
and restate the tests of competence to give sworn and unsworn evidence,

(c) to replace the definition of “de facto spouse” with a new definition of “de facto
partner”,

(d) to make further provision with respect to the proof of voluminous or complex
documents,

(e) to facilitate proof of electronic communications,

(f) to provide exceptions to the hearsay rule for evidence relevant to Aboriginal
and Torres Strait Islander traditional laws and customs and for an exception to
the opinion rule for evidence of an opinion expressed by a member of an
Aboriginal or Torres Strait Islander group about traditional laws and customs
of the group,

(g) to provide for the admission of expert opinion evidence on behaviour and
development of children,

(h) to make further provision with respect to evidence of admissions,
        (i) to clarify and amplify the meaning of references to “lawyer” in various
provisions of the Principal Act,

(j) to provide for loss of client legal privilege where a client or party has acted in
a manner inconsistent with the assertion of the privilege,

(k) to make amendments that are consequential on the enactment by the
Commonwealth of provisions relating to professional confidential relationship
privilege,

(l) to make further provision with respect to the assertion of, and effect of
asserting, the privilege against self-incrimination,

(m) to make provision with respect to the ability to assert the privilege against
self-incrimination in respect of disclosure of information in connection with
search and freezing orders in civil proceedings,

(n) to apply Division 3 of Part 3.10 of the Principal Act (Evidence excluded in the
public interest) to preliminary proceedings,

(o) to make various other minor or consequential amendments.

The Bill also transfers certain savings and transitional provisions of the Evidence
(Consequential and Other Provisions) Act 1995 to the Principal Act and repeals that
Act as it will then be spent.

Outline of provisions

Clause 1 sets out the name (also called the short title) of the proposed Act.

Clause 2 provides for the commencement of the proposed Act on a day or days to be
proclaimed.

Clause 3 is a formal provision that gives effect to the amendments to the Evidence
Act 1995 set out in Schedule 1.

Clause 4 is a formal provision that gives effect to the amendments to the Acts set out
in Schedule 2.

Clause 5 provides for the repeal of the proposed Act on the day following the day on
which all of the provisions of the Act have commenced. It also repeals the Evidence
(Consequential and Other Provisions) Act 1995.

Schedule 1 Amendments to Evidence Act 1995
Schedule 1 contains the amendments to the Evidence Act 1995 described in the
Overview.

Courts and proceedings to which Act applies
Schedule 1 [1] omits the words “in relation” from the phrase “in relation to all
proceedings” in section 4 (1) of the Principal Act. The words are unnecessary as the
evidentiary rules prescribed by the Act only apply in the course of a proceeding in a
NSW court (as defined). It implements recommendation 2–4 of the Report.

Schedule 1 [2] and [86] insert a note to section 4 of the Principal Act and amend the
definition of NSW court in the Dictionary to the Act to clarify and explain the
application of the rules of evidence set out in the Act to State courts exercising
federal jurisdiction. The amendments arise out of recommendation 2–5 of the Report.

Section 79 of the Judiciary Act 1903 of the Commonwealth provides that the “laws
of each State or Territory, including the laws relating to procedure, evidence, and the
competency of witnesses, shall, except as otherwise provided by the Constitution or
the laws of the Commonwealth, be binding on all Courts exercising federal
jurisdiction in that State or Territory in all cases to which they are applicable”.

Competence: lack of capacity
Section 13 of the Principal Act currently contains two different tests for giving sworn
and unsworn evidence, both of which require a witness to demonstrate an
understanding of the difference between truth and lies.

Schedule 1 [3] repeals and replaces section 13. It implements recommendations 4–1
and 4–2 of the Report. It sets out a new test for determining a witness’s competence
to give sworn and unsworn evidence and clarifies the distinction between sworn and
unsworn evidence.

New section 13 provides that all witnesses must satisfy the test of general
competence in section 13 (1). The general test focuses on the ability of the person to
comprehend and communicate. Under this test, a person is not competent to give
sworn or unsworn evidence about a fact if the person lacks the capacity to understand
a question about the fact, or to give an answer to that question that can be understood,
and that incapacity cannot be overcome.

New section 13 (2) makes it clear that, even if the general test of competence is not
satisfied in relation to one fact, a person may be competent to give evidence about
other facts.

New section 13 (3) provides that a person is not competent to give sworn evidence if
he or she does not have the capacity to understand that he or she is under an
obligation to give truthful evidence. This restates current section 13 (1).

New section 13 (4) provides that (subject to the requirements of subsection (5) being
met), a person who is not competent to give sworn evidence about a fact may give
unsworn evidence about the fact. This is intended to allow young children and others
(for example, adults with an intellectual disability) to give unsworn evidence even
though they do not understand concepts such as “truth”. The weight to be given to
such evidence will be determined by the court.

New section 13 (5) sets out the requirements that must be met for a person who is not
competent to give sworn evidence to be competent to give unsworn evidence.

New section 13 (6) provides that a person is presumed to be competent to give
evidence, unless it is proven he or she is incompetent. It restates existing section 13
(5).

New section 13 (7) provides that evidence given by a witness is not inadmissible
merely because the witness dies or is no longer competent to give evidence. It restates
current section 13 (6).

New section 13 (8) provides that, when a court is determining whether a person is
competent to give evidence, the court may inform itself as it thinks fit. It expands
current section 13 (7) by specifically referring to the ability of the court to inform
itself by obtaining information from experts.

Schedule 1 [4] and [8] make consequential amendments to sections 14 and 21,
respectively, of the Principal Act.

Manner and form of questioning witnesses and their responses
Section 29 (2) of the Principal Act currently enables a witness to give evidence
wholly or partly in narrative form (instead of in a question and answer format) if the
court so directs. At present a direction may be made only on the application of the
party that called the witness. Schedule 1 [9] implements recommendation 5–1 of the
Report. It replaces section 29 (2) to enable a direction to be given by the court on its
own motion.

Amendments relating to lawyers and their clients and client legal
privilege
A lawyer is currently defined in the Dictionary to the Principal Act as a barrister or
a solicitor. Schedule 1 [85] omits the definition and Schedule 1 [81] inserts various
definitions of categories of lawyers to implement recommendation 14–3 of the
Report. This will ensure that terminology relating to lawyers is consistent with that
used in the national uniform legislation on the legal profession and will clarify the
meaning and scope of various references to lawyers in the Act.

Schedule 1 [10], [11], [66] and [67] make consequential amendments to sections 33,
37, 148 and 190.

Schedule 1 [53] amends section 114 (5) to ensure that the subsection includes
lawyers with a valid practising certificate, as well as relevant statutory officers and
government and other lawyers who are otherwise permitted to practise in the
jurisdiction.

Schedule 1 [54] amends the definition of client in section 117 in relation to client
legal privilege. It implements recommendation 14–2 of the Report. A client of a
lawyer is defined to include a person or body who engages a lawyer to provide legal
services or who employs a lawyer.

Schedule 1 [55] replaces the definition of lawyer in relation to client legal privilege
to include Australian lawyers (that is, those who are admitted but do not necessarily
have a practising certificate) and employees and agents of lawyers. It will now cover
the whole range of lawyers providing legal advice or legal professional services in
various jurisdictions and not be limited to those with a practising certificate. It
implements recommendation 14–3 of the Report.

Section 118 prevents the admission of certain confidential communications and
documents made for the dominant purpose of a lawyer providing legal advice to the
client.

Schedule 1 [56] amends section 118 and implements recommendation 14–4 of the
Report. It extends the privilege to confidential documents prepared by someone other
than the client or lawyer (for example, an accountant or consultant) for the dominant
purpose of the lawyer providing legal advice to the client.

Section 191 of the Principal Act deals with agreements by the parties to facts.

Schedule 1 [76] amends section 191 to ensure that representatives of parties who can
agree to facts include lawyers who are admitted, those who are otherwise permitted
to practise and prosecutors (as to be defined in an amendment made by Schedule 1
[88]).

Loss of client legal privilege
Section 122 of the Principal Act currently provides that client legal privilege is lost
by consent or if a client or party knowingly and voluntarily discloses the substance
of the evidence.

Schedule 1 [57] replaces section 122 with a new section that is aligned more closely
with the common law test for loss of privilege set out in Mann v Carnell (1999) 201
CLR 1. It implements recommendation 14–5 of the Report.

New section 122 provides that evidence may be adduced if the client or party
concerned has acted in a way that is inconsistent with the maintenance of the
privilege.

Leading questions
Section 37 permits leading questions to be put to a witness in examination in chief if
no objection is taken and each party is represented by a lawyer. Schedule 1 [11]
amends section 37 to (among other things) provide that leading questions may be put
if a party is represented by a prosecutor.

Schedule 1 [88] inserts a definition of prosecutor into the Principal Act. It covers
police prosecutors and other public officers who may be authorised to conduct
prosecutions and represent the Crown or police informants, although not admitted
legal practitioners.

Improper questions
Section 41 of the Principal Act currently permits the court to disallow questions that
are misleading, unduly annoying, harassing, intimidating, offensive, oppressive or
repetitive. Schedule 1 [12] replaces section 41 with a new section that requires the
court to disallow such improper questions and that essentially replicates section
275A of the Criminal Procedure Act 1986. It gives effect (with minor departures) to
recommendation 5–2 of the Report.

Proof of voluminous or complex documents
Section 50 of the Principal Act currently enables a court to direct that evidence be
adduced in the form of a summary if application is made to it by a party before the
hearing concerned. Schedule 1 [13] amends section 50 to omit this restriction and
allow an application to be made at any time in proceedings. It implements
recommendation 6–1 of the Report.

Exclusion of evidence
Part 3.11 of the Act is currently headed “Discretions to exclude evidence”. However
the Part includes section 137 which contains a mandatory requirement to exclude
prejudicial evidence in criminal proceedings. Schedule 1 [64] replaces the heading
to the Part so as to refer to the mandatory requirement and to implement
recommendation 16–1 of the Report. Schedule 1 [14] and [15] make consequential
amendments to the introductory note to Chapter 3.

The hearsay rule–exclusion of hearsay evidence
Section 59 of the Principal Act excludes evidence of a previous representation for the
purpose of proving a fact which the maker intended to assert by the representation.

The meaning of “intended” was explored by the New South Wales Supreme Court in
R v Hannes (2000) 158 FLR 359. In paragraph 7.34–7.62 of the Report the
Commissions emphasised the need to provide guidance on the definition of hearsay
and the difficulties that might arise if the approach taken by the Court in that case was
pursued. Schedule 1 [16] and [17] accordingly amend section 59 to further define
hearsay evidence and to clarify what a court should consider in determining the
meaning of intention.

Schedule 1 [16] amends section 59 (1) to implement recommendation 7–1 of the
Report. It expressly provides that, in determining whether a person intended to assert
the existence of facts contained in a previous representation, the test to be applied
should be based on what a person in the position of the maker of the representation
can reasonably be supposed to have intended.

Schedule 1 [17] inserts section 59 (2A) to provide that, in determining whether a
person intended to assert the existence of facts contained in a previous
representation, the test to be applied is what a person in the position of the maker of
the representation can reasonably be supposed to have intended, having regard to the
circumstances in which the representation was made.

Schedule 1 [18] amends the note to section 59 to update cross references to specific
exceptions to the hearsay rule as a consequence of the amendments made to insert
section 66A (Schedule 1 [29]) and to amend section 71 (Schedule 1 [30]) that are
described below.

Section 60 of the Principal Act contains an exception to the hearsay rule when
evidence is relevant for a non-hearsay purpose.

Schedule 1 [19] amends section 60 of the Principal Act to ensure that the
amendments to section 59 that clarify the meaning of intention also apply in the
context of section 60.

Schedule 1 [20] inserts new section 60 (2) and (3). It implements recommendation
7–2 and implements in substance recommendation 10–2 of the Report.

New section 60 (2) is a response to the decision of the High Court in Lee v The Queen
(1998) 195 CLR 594. The Court held that section 60 does not convert evidence of
what was said, out of court, into evidence of some fact that the person speaking out
of court did not intend to assert. The Report considered that this approach may be
regarded as inconsistent with the intention or scheme of the Principal Act (para
7.104).

New section 60 (2) confirms that section 60 permits evidence admitted for a
non-hearsay purpose to be used to prove the facts asserted in the representation,
whether or not the person had first-hand knowledge based on something they saw,
heard or otherwise perceived.

New section 60 (3) ensures that evidence of admissions in criminal proceedings that
is not first-hand is excluded from the scope of section 60. It gives effect to the
substantive part of recommendation 10–2 of the Report.

Schedule 1 [21] implements recommendation 4–3 of the Report. It is a consequential
amendment to replace section 61 (1) to bring the subsection into line with the
proposed amendments to section 13 described above relating to tests for determining
the competency of witnesses to give sworn and unsworn evidence.

Exception: contemporaneous statements about a person’s health etc—
restriction to first-hand hearsay
Section 72 of the Principal Act contains an exception to the hearsay rule for
contemporaneous statements about a person’s health, feelings, sensations, intention,
knowledge or state of mind. Schedule 1 [29] re-enacts section 72 (which is currently
in Division 3 of Part 3.2) as a new section 66A (which is in Division 2 of Part 3.2).

It implements recommendation 8–5 of the Report. The section has been moved to
Division 2 to make it clear that the exception applies only to first-hand hearsay—it
applies to representations made by a person who has personal knowledge of an
asserted fact and not second-hand and more remote forms of hearsay.

Schedule 1 [22] and [23] make consequential amendments to sections 61 and 62,
respectively. Section 62 (2) defines what is meant by personal knowledge of an
asserted fact in terms that are not wide enough to cover all the matters referred to in
new section 66A. New section 62 (3) ensures that all representations referred to in
section 66A are considered first-hand hearsay.

Exception: civil proceedings if maker available
Section 64 of the Principal Act provides an exception to the hearsay rule in civil
proceedings when the maker of the representation is available. Schedule 1 [24]
implements recommendation 8–1 of the Report. It amends section 64 (3) to remove
the requirement in that subsection that the exception only apply if, when the
representation was made, the occurrence of the asserted fact was fresh in the memory
of the person who made the representation. The Commissions considered that the
requirement was not an important indicator of evidentiary reliability and that
freshness in memory could be taken into account in determining the weight to be
given to the evidence and whether to exercise the general discretions under sections
135–137 of the Principal Act to exclude it (paragraph 8.15 of the Report).

Exception: criminal proceedings if maker not available
Section 65 of the Principal Act provides an exception to the hearsay rule in criminal
proceedings where a person who made a previous representation is not available to
give evidence about an asserted fact. Currently section 65 (2) (d) provides that the
hearsay rule does not apply to a previous representation if the representation was
made against the interests of the person who made it at the time it was made.

Schedule 1 [27] implements recommendation 8–3 of the Report so that such a
representation must also be made in circumstances that make it likely that the
representation is reliable. Schedule 1 [25] and [26] make consequential amendments
to section 65.

Exception: criminal proceedings if maker available
Section 66 of the Principal Act provides an exception to the hearsay rule in criminal
proceedings where the maker of the representation is available to give evidence about
the asserted fact. The hearsay rule does not apply if, when the representation was
made, the occurrence of the asserted fact was fresh in the memory of the maker.

Schedule 1 [28] implements recommendation 8–4 of the Report and is a response to
the decision of the High Court in Graham v The Queen (1998) 195 CLR 606. New
section 66 (2A) makes it clear that freshness of the memory of the maker may be
determined by taking into account all matters it considers relevant, not just the
temporal relationship between the occurrence of the asserted fact and the making of
the representation.

Electronic communications
Section 71 of the Principal Act provides an exception to the hearsay rule for certain
representations contained in documents transmitted by electronic mail or by a fax,
telegram, lettergram or telex. Schedule 1 [30] replaces section 71 with a new section
and Schedule 1 [84] inserts a definition of electronic communication into the
Dictionary to implement recommendation 6–2 of the Report. The new definition of
electronic communication gives the term the same meaning as it has in the
Electronic Transactions Act 2000 and embraces all modern electronic technologies,
including telecommunications, as well as the more outmoded methods of
communication like telex.

New section 71 allows for a broader and more flexible definition of the technologies
which fall within the exception.

Section 161 of the Principal Act currently facilitates proof of messages transmitted
by telex. Schedule 1 [68] replaces existing section 161 with a new section 161 to
facilitate proof of messages transmitted by electronic communications as to be
defined. It implements recommendation 6–3 of the Report and will provide new
presumptions relating to the sending and receipt as well as the source and destination
of electronic communications.

Aboriginal and Torres Strait Islander traditional laws and customs
Schedule 1 [31] and [33] replace section 72 (which is re-enacted as section 66A by
Schedule 1 [29]) and insert section 78A, respectively. The proposed sections
implement recommendations 19–1 and 19–2 of the Report. They create exceptions
to the hearsay rule for 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 and to the opinion rule for 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. The Commissions intend the proposed amendments to shift the focus from
whether there is a technical breach of the hearsay rule to whether the particular
evidence is reliable. Evidence given will still be subject to the safeguards of
relevance provided by section 55, and the discretionary and mandatory exclusions in
sections 135–137, of the Principal Act (paragraphs 19.74 and 19.78 of the Report).

Schedule 1 [89] inserts a definition of traditional laws and customs of an Aboriginal
or Torres Strait Islander group into the Dictionary to the Principal Act. The
amendment implements recommendation 19–3 of the Report.

Schedule 1 [32] is a consequential amendment.

Exception: opinions based on specialised knowledge
Section 79 of the Principal Act provides that the opinion rule (under which evidence
of an opinion is not admissible to prove the existence of a fact about which the
opinion was expressed) does not apply to evidence of an opinion of a person wholly
or substantially based on specialised knowledge of a person gained from the person’s
training, study or experience.

Schedule 1 [34] inserts a new section 79 (2) to implement recommendation 9–1 of
the Report. New section 79 (2) makes it clear that the exception covers expert opinion
evidence of persons with specialised knowledge of child development and behaviour
(including specialised knowledge of the impact of sexual abuse on children and of
their behaviour during and following abuse). It includes evidence in relation to the
development and behaviour of children generally and the development and
behaviour of children who have been the victims of sexual offences, or offences
similar to sexual offences.

Exclusion of evidence of admissions that is not first-hand
Schedule 1 [35] inserts a note to section 82. This reflects proposed new section 60
(3) (to be inserted by Schedule 1 [20]) which makes it clear that section 60 of the
Principal Act, which contains an exception to the hearsay rule for evidence that is
admitted for a hearsay purpose, does not apply to evidence of an admission in a
criminal proceeding. New section 60 (3) gives effect to the substantive part of
recommendation 10–2 of the Report.

De facto partners
Schedule 1 [83] omits the definition of de facto spouse from the Dictionary to the
Principal Act and Schedule 1 [90] replaces it with a definition of de facto partner.

The proposed definition implements (with modifications) recommendations 4–5 and
4–6 of the Report. Schedule 1 [5]–[7] make consequential amendments. The items
implement the Commissions’ recommendation in 4–4 of the Report that references
to de facto relationships should be gender neutral. De facto spouse is currently
defined by reference to de facto relationships within the meaning of the Property
(Relationships) Act 1984. The new definition of de facto partner is in similar terms
but is not limited to a relationship between two adults and omits specific reference to
whether a sexual relationship exists as a particular matter to be taken into account in
determining whether a de facto relationship exists.

Criminal proceedings: reliability of admissions by defendants
Section 85 of the Principal Act sets out the matters to be taken into account by a court
in determining whether to admit evidence of an admission made by a defendant in
the course of official questioning or as a result of an act of another person capable of
influencing the decision about the prosecution of the defendant. Schedule 1 [36]
inserts a new section 85 (1) to implement (with a minor departure) recommendation
10–1 of the Report.

The majority of the High Court in Kelly v The Queen (2004) 218 CLR 216 took a
narrow view of the term “in the course of official questioning” in existing section 85
(1). It “marks out a period of time running from when questioning commenced to
when it ceased” (at [52]). New section 85 (1) (a) broadens the scope of section 85 to
cover admissions made “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”.

In addition to the amendment recommended in the Report, section 85 (1) (b) provides
that section 85 applies where an admission is made as a result of the act of a person
who “the defendant knew or reasonably believed to be” capable of influencing a
decision about the prosecution of the defendant. This removes covert operatives from
the ambit of the provision.

Schedule 1 [37], [65], [70] and [87] contain consequential amendments to sections
89, 139, 165 and the Dictionary, respectively.

The tendency rule
Schedule 1 [38] replaces section 97 (1) to implement recommendation 11–3 of the
Report. The amendment does not change the substantive law. It removes double
negatives and makes other changes to make the subsection easier to understand.

The coincidence rule
Schedule 1 [39] replaces section 98 with a new section 98 which introduces a general
test for the coincidence rule. It implements recommendations 11–1 and 11–2 of the
Report.

Currently section 98 provides that similar fact evidence is not admissible to prove
that a person did a particular act or had a particular state of mind by reason of the
improbability of the related events occurring coincidentally unless certain conditions
are satisfied. Events are related events only if they are substantially and relevantly
similar and the circumstances in which they occurred are substantially similar. The
Commissions considered that this test raised the threshold too high and could exclude
highly probative evidence from the ambit of the provision.

New section 98 applies where there are any similarities in the events or the
circumstances in which they occurred, or similarities in both the events and the
circumstances in which they occurred.

Credibility evidence
Schedule 1 [40] inserts new sections 101A and 102 which set out the credibility rule.

It implements recommendation 12–1 of the Report.

Currently section 102 states that evidence that is relevant only to a witness’s
credibility is not admissible. In Adam v The Queen (2001) 207 CLR 96 the High
Court interpreted the provision in a way that has meant that the credibility rule will
not apply if evidence is relevant both to credibility and a fact in issue, even where the
evidence is not admissible for the purpose of proving a fact in issue.

New section 101A defines credibility evidence to ensure that Part 3.7 will apply not
only to evidence relevant only to credibility but also to evidence relevant for some
other purpose for which it is not admissible or cannot be used because of a provision
of Parts 3.2–3.6 of the Principal Act.

New section 102 restates the credibility rule in simpler terms.

Schedule 1 [44], [50] and [82] make consequential amendments to sections 104 (2),
108A and the Dictionary, respectively.

Exception: cross-examination as to credibility
Section 103 of the Principal Act provides that the credibility rule does not apply to
evidence adduced in cross-examination of a witness if the evidence has substantial
probative value. Schedule 1 [41] amends the section to provide instead that the rule
does not apply if such evidence “could substantially affect the assessment of the
credibility of the witness”. It implements recommendation 12–2 of the Report.

Schedule 1 [42] and [43] make consequential amendments to sections 103 (2) and
104 (1), respectively.

Schedule 1 [45] replaces section 104 (4) with a new subsection as a consequence of
the amendment made by Schedule 1 [41]. It implements recommendation 12–1 (in
part), and 12–3, of the Report. The amendment also restates section 104 (4) (a) and

(b) and removes the overlap between section 104 (4) (a) and Part 3.8.

Schedule 1 [46] makes a consequential amendment to section 104 (5).

Exception: rebutting denials by other evidence
Section 106 of the Principal Act currently provides that the credibility rule does not
apply to a rebuttal of a witness’s denials by other evidence in specified
circumstances. Schedule 1 [47] replaces section 106 with a new section enabling the
admission of evidence on a broader basis. It implements recommendation 12–5 of the
Report.

New section 106 (1) enables the court to grant leave to adduce evidence relevant to
credibility in circumstances other than those currently specified. It also provides that
evidence relevant to credibility may be led not only where the witness has denied the
substance of the evidence in cross-examination but also where he or she did not admit
or agree to it.

Under new section 106 (2), leave is not required to adduce evidence of the kind
currently described in section 106.

Credibility of persons who are not witnesses
Schedule 1 [48] inserts a new Division heading as a consequence of amendments
arising out of recommendations 12–1 and 12–3 of the Report.

Admissibility of evidence of credibility of person who has made a
previous representation
Schedule 1 [49] replaces section 108A (1) with a new subsection which makes it
clear that the subsection applies to all situations in which evidence of a previous
representation has been admitted where the maker has not been called and will not
be called to give evidence. It implements recommendations 12–1 (in part), and 12–6,
of the Report. The amendment updates section 108A (1) to reflect the new definition
of credibility evidence inserted by Schedule 1 [40].

Schedule 1 [50] amends section 108A (2) to implement recommendation 12–6 of the
Report.

Further protections: previous representations of an accused who is not
a witness
Schedule 1 [51] inserts new sections 108B and 108C and a Division heading into the
Principal Act. It implements in substance recommendations 12–6 and 12–7 of the
Report.

Section 108A of the Principal Act applies where hearsay evidence has been admitted
and the defendant who made the previous representation has not been or will not be
called to give evidence. It permits admission of evidence relevant only to credibility
about matters on which the defendant could have been cross-examined if he or she
had given evidence.

New section 108B provides for the same restrictions on adducing the evidence
relevant to the defendant’s credibility as apply under section 104 of the Principal Act
(as proposed to be amended elsewhere in Schedule 1). Under new section 108B (2),
the prosecution must seek the court’s leave to tender evidence relevant only to the
defendant’s credibility. When deciding whether to grant leave the court is required
to take into account specified matters. Leave is not required if the evidence falls
within specified exceptions.

New section 108C implements recommendation 12–7 of the Report and
recommendation 57 of the Criminal Justice Sexual Offences Taskforce Report
entitled “Responding to sexual assault: the way forward” (2005). It provides a new
exception to the credibility rule for opinion evidence given by a person who has
specialised knowledge based on the person’s training, study or experience that is
wholly or substantially based on that knowledge and that could substantially affect
the assessment of the credibility of the witness. The new section is intended to enable
the admission of expert opinion evidence that is relevant to the fact-finding process
(for example, to prevent misinterpretation of the behaviour of a witness with an
intellectual disability or cognitive impairment, or inappropriate inferences from such
behaviour). Section 108C (2) makes it clear that the exception covers evidence of
persons with specialised knowledge of child development and behaviour (including
specialised knowledge of the impact of sexual abuse on children and of their
behaviour during and following abuse). It includes evidence in relation to the
development and behaviour of children generally and the development and
behaviour of children who have been victims of sexual offences, or offences similar
to sexual offences.

Privilege in respect of self-incrimination in other proceedings
Section 128 of the Principal Act provides a procedure for giving a witness who
objects to giving particular evidence a certificate which grants that person use and
derivative use immunity for the evidence if the person can claim the privilege against
self-incrimination.

Schedule 1 [61] replaces section 128. It addresses recommendations 15–7 and 15–8
of the Report.

New section 128 (1) expands the grounds of objection to the giving of evidence to
cover not only particular evidence but also evidence on a particular matter. The
section is also restructured to simplify the process for certification (section 128
(2)–(6)). New section 128 (7) describes the effect of a certificate and replicates
existing section 128 (7). New section 128 (8) and (9) address two issues that arose in
Cornwell v The Queen [2007] HCA 12. Section 128 (8) ensures that the witness can
rely on a certificate and that section 128 (7) will have effect in relation to a certificate
despite any challenge, quashing or calling into question on any ground of the
decision to give, or the validity of, the certificate. However, new section 128 (9)
makes it clear that a certificate under the section in relation to a proceeding does not
apply to a retrial for the same offence or an offence arising out of the same facts. New
section 128 (10) and (11) replicate existing section 128 (8) and (9).

Schedule 1 [75] makes a consequential amendment to section 189.

Privilege in respect of self-incrimination—exception for certain
disclosure orders
Schedule 1 [62] inserts a new section 128A into the Principal Act. It provides a
process for dealing with objections on the grounds of self-incrimination to
complying with a search order (Anton Pillar), freezing order (Mareva) or other order
under Part 25 of the Uniform Civil Procedure Rules 2005 in civil proceedings. The
amendment addresses issues raised by recommendation 15–10 of the Report.

New section 128A provides that a privilege against self-incrimination applies to
these orders (section 128A (8)). A person the subject of an order may prepare an
affidavit containing the required information to which objection is taken (called a
privilege affidavit) and deliver it to the court in a sealed envelope. A separate
affidavit setting out the basis of the objection is to be filed and served on each other
party (section 128A (2)). If the court finds there are reasonable grounds for the
objection, the court must not require the disclosure of information (section 128A (5)).

If the court is satisfied the information may incriminate the person but that the
interests of justice require disclosure it may give the person a certificate in respect of
the information disclosed (section 128A (7)). The certificate confers use and
derivative use immunity (section 128A (8)).

Section 128A (9) makes it clear that the protection conferred does not apply to
documents that were in existence before a search or freezing order was made or
pre-existing annexures or exhibits to the privilege affidavit.

Section 128A (10) is similar in terms to proposed new section 128 (8) described
above.

Extension of privilege provisions to pre-trial disclosure procedures and
proceedings outside court
Schedule 1 [63] inserts new section 131A to extend certain specified privilege
provisions in Part 3.10 of the Principal Act to compulsory processes for disclosure,
such as discovery and subpoenas. Issues relating to this extension were discussed in
relation to recommendations 14–1, 14–6, 15–3, 15–6 and 15–11 of the Report and a
draft provision was included in the Victorian Law Reform Commission’s report
titled “Implementing the Uniform Evidence Act”.

Warnings in relation to children’s evidence and delay in prosecution
Schedule 1 [72] inserts new sections 165A and 165B which deal with warnings in
relation to children’s evidence and delays in prosecution. It implements
recommendations 18–2 and 18–3 of the Report.

Schedule 1 [69] makes a consequential amendment to the heading to Part 4.5.

New section 165A is intended to displace certain common law practices relating to
warnings and to ensure that the courts treat child witnesses the same as adult
witnesses when determining whether a warning is appropriate.

New section 165A (1) prohibits a judge from warning or suggesting that children as
a class are unreliable witnesses, that the evidence of children as a class is inherently
less credible or reliable than the evidence of adults, that a particular child’s evidence
is unreliable solely on account of the age of the child or that it is dangerous to convict
on the uncorroborated evidence of a child. However, section 165A (2) provides that
the judge may in certain circumstances inform the jury that the evidence of a
particular child may be unreliable and the reasons why it may be unreliable or warn
or inform the jury of the need for caution in determining whether to accept the
evidence of a particular child and the weight to be given to it.

Section 165 deals with warnings about unreliable evidence.

Schedule 1 [71] makes an amendment to replace section 165 (6) that is related to new
section 165A. New section 165 (6) provides that a judge must not warn or inform a
jury that the reliability of a child’s evidence may be affected by the age of the child
except as provided by new section 165A.

New section 165B regulates warnings that are given to juries in criminal proceedings
concerning delay and forensic disadvantage to the accused.

Section 165B (2) provides that, if the court, on application by a party, 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. The mere passage of time is not to be regarded as a significant forensic
disadvantage (section 165B (6)) and the judge need not take this action if there are
good reasons for not doing so (section 165B (3)).

The section is intended to make it clear that (contrary to the tendency at common law
following Longman v The Queen (1989) 168 CLR 79 for judges to routinely give
warnings in relation to forensic disadvantage arising from delay) information about
forensic disadvantage need only be given if a party applies for it, and should only be
given where there is an identifiable risk of prejudice to the accused. Such prejudice
should not be assumed to exist merely because of the passage of time.

Accused may admit matters and give consents
Section 184 provides for a defendant in or before a criminal proceeding to admit any
matters of fact and give any consent that a party to a civil proceeding may make or
give if the defendant is advised to do so by his or her lawyer.

Schedule 1 [74] inserts section 184 (2) so that an admission or consent can also be
effective if the court is satisfied that the defendant understands the consequences of
making the admission or giving the consent. New section 184 (2) makes section 184
consistent with existing section 190 (2) of the Principal Act and enables a defendant
who is unrepresented by a lawyer to make such admissions and give such consents.

Schedule 1 [73] makes a consequential amendment.

Schedule 1 [77] inserts new section 192A. It implements recommendation 16–2 of
the Report. New section 192A enables a court, if it considers it to be appropriate, to
give an advance ruling or make an advance finding in relation to the admissibility of
evidence and other evidentiary matters.

The amendment also emphasises that an advance ruling or finding may be made with
respect to the giving of leave, permission or a direction under section 192 of the
Principal Act.

Minor corrections
Schedule 1 [52] corrects a minor drafting inconsistency in section 112. It implements
recommendation 12–4 of the Report.

Savings, transitional and other provisions
Schedule 1 [79] inserts a new Schedule 2 containing savings and transitional
provisions and enabling the making of savings and transitional regulations.

Schedule 1 [78] inserts a machinery provision giving effect to that Schedule.

Schedule 1 [80] inserts in the Schedule savings and transitional provisions that are
consequent on the proposed Act.

Amendment consequent on legislation of other jurisdictions
Schedule 1 [58] omits a note as a consequence of the insertion of Division 1A
(Professional confidential relationship privilege) of Part 3.10 into the Evidence Act
1995 of the Commonwealth.

Schedule 1 [59] and [60] insert notes as a consequence of the insertion of Division
1A (Professional confidential relationship privilege) of Part 3.10 into the Evidence
Act 1995 of the Commonwealth.

Schedule 2 Amendment of other Acts
Schedule 2 amends the Acts specified in the Schedule.

Schedule 2.1 amends section 87 of the Civil Procedure Act 2005 to explain its
relationship to proposed section 128A of the Principal Act (as inserted by Schedule
1 [62]).

Schedule 2.2 amends the Coroners Act 1980 to ensure that sections 33 and 33AA of
that Act are consistent with proposed section 128 of the Principal Act (as inserted by
Schedule 1 [61]) and to insert related definitions in section 4 of the Act.

Schedule 2.3 [1] repeals section 275A (Improper questions) of the Criminal
Procedure Act 1986. The section will be replaced by proposed section 41 of the
Principal Act (as inserted by Schedule 1 [12]).

Schedule 2.3 [2] repeals section 294 (3)–(5) of the Criminal Procedure Act 1986.

The provisions relate to warnings to be given where forensic disadvantage has been
caused by delay in prosecution and will be replaced by proposed section 165B of the
Principal Act (as inserted by Schedule 1 [72]).

Schedule 2.4 omits Schedule 2 to the Evidence (Consequential and Other
Provisions) Act 1995 and transfers its contents (without substantive change) to
proposed new Schedule 2 to the Principal Act (to be inserted by Schedule 1 [79]).

The provisions are transferred provisions to which section 30A of the Interpretation
Act 1987 applies.

Note: If this Bill is not modified, these Explanatory Notes would reflect the Bill as passed in the House. If the Bill has been amended by Committee, these Explanatory Notes may not necessarily reflect the Bill as passed.

 

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