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EVIDENCE (MISCELLANEOUS PROVISIONS) AMENDMENT (AFFIDAVITS) BILL 2012

                 PARLIAMENT OF VICTORIA

  Evidence (Miscellaneous Provisions) Amendment
               (Affidavits) Bill 2012



                      TABLE OF PROVISIONS
Clause                                                                  Page
  1      Purpose                                                           1
  2      Commencement                                                      2
  3      Principal Act                                                     2
  4      New Division 12 inserted in Part IV                               2
         Division 12--Miscellaneous                                        2
         126B    False or misleading statement as to swearing etc. of
                 affidavit                                                 2
  5      New section 165 inserted                                          3
         165     Validation of certain acts and documents                  3
  6      Repeal of amending Act                                            6
                           

ENDNOTES                                                                   7




571201B.I-27/2/2012                    i       BILL LA INTRODUCTION 27/2/2012

 


 

PARLIAMENT OF VICTORIA Introduced in the Assembly Evidence (Miscellaneous Provisions) Amendment (Affidavits) Bill 2012 A Bill for an Act to amend the Evidence (Miscellaneous Provisions) Act 1958 and for other purposes. The Parliament of Victoria enacts: 1 Purpose The purpose of this Act is to amend the Evidence (Miscellaneous Provisions) Act 1958-- (a) to address procedural defects in relation to 5 certain affidavits; and (b) to create an offence of making a false or misleading statement in relation to the swearing or affirming of affidavits or documents purporting to be affidavits. 571201B.I-27/2/2012 1 BILL LA INTRODUCTION 27/2/2012

 


 

Evidence (Miscellaneous Provisions) Amendment (Affidavits) Bill 2012 s. 2 2 Commencement (1) This Act (except sections 4 and 5) comes into operation on the day on which it receives the Royal Assent. 5 (2) Section 5 is taken to have come into operation on 12 November 2011. (3) Section 4 comes into operation on the day after the day on which this Act receives the Royal Assent. 10 3 Principal Act See: In this Act, the Evidence (Miscellaneous Act No. 6246. Provisions) Act 1958 is called the Principal Act. Reprint No. 17 as at 1 January 2010 and amending Act Nos 7/2010, 13/2010, 53/2010, 36/2011 and 65/2011. LawToday: www. legislation. vic.gov.au 4 New Division 12 inserted in Part IV After Division 11 of Part IV of the Principal Act 15 insert-- "Division 12--Miscellaneous 126B False or misleading statement as to swearing etc. of affidavit (1) Subject to subsection (2), a person must not 20 make a false or misleading statement as to-- (a) the circumstances in which an affidavit or a document purporting to be an affidavit was sworn or affirmed; or 571201B.I-27/2/2012 2 BILL LA INTRODUCTION 27/2/2012

 


 

Evidence (Miscellaneous Provisions) Amendment (Affidavits) Bill 2012 s. 5 (b) whether or not an affidavit or a document purporting to be an affidavit was sworn or affirmed-- knowing that the statement is false or 5 misleading. Penalty: 10 penalty units. (2) This section applies-- (a) only in relation to a statement made on or after the commencement of section 4 10 of the Evidence (Miscellaneous Provisions) Amendment (Affidavits) Act 2012; and (b) whether the affidavit or the document purporting to be an affidavit was sworn 15 or affirmed before, on or after that commencement.". 5 New section 165 inserted After section 164 of the Principal Act insert-- "165 Validation of certain acts and documents 20 (1) If an affidavit signed before 12 November 2011 by a person and by a person duly authorised to administer oaths contains words indicating that the first person states that the affidavit is made on oath or 25 affirmation-- (a) it is not, and was not at any time, necessary that-- (i) the oath or affirmation be made orally; or 30 (ii) the first person signed the affidavit in the presence of the person duly authorised to administer oaths; or 571201B.I-27/2/2012 3 BILL LA INTRODUCTION 27/2/2012

 


 

Evidence (Miscellaneous Provisions) Amendment (Affidavits) Bill 2012 s. 5 (iii) the person duly authorised to administer oaths signed the affidavit in the presence of the first person; or 5 (iv) if the first person signed the affidavit in the presence of a person duly authorised to administer oaths, the person so authorised observed the person 10 signing the affidavit; or (v) the affidavit contained the statement required by section 126; and (b) the words indicating that the first 15 person states that the affidavit was made on oath or affirmation are and are taken always to have been effective by way of oath or affirmation even if anything referred to in paragraph (a)(i) 20 to (v) was not done or did not occur. (2) A warrant, an order, a summons or other process issued or made by a court or a judicial officer in reliance, directly or indirectly, on an affidavit referred to in 25 subsection (1) is not invalid only by reason of the fact that, but for subsection (1), the affidavit would not have been duly sworn or affirmed. (3) For the purposes of the prosecution of an 30 alleged offence, the fact that, but for subsection (1), an affidavit would not have been duly sworn or affirmed is to be disregarded in determining whether evidence obtained in reliance, directly or indirectly, on 35 that affidavit ought to be admitted. 571201B.I-27/2/2012 4 BILL LA INTRODUCTION 27/2/2012

 


 

Evidence (Miscellaneous Provisions) Amendment (Affidavits) Bill 2012 s. 5 (4) Subject to subsection (3), this section does not limit a discretion of a court-- (a) to exclude evidence in a criminal proceeding; or 5 (b) to stay a criminal proceeding in the interests of justice. (5) This section does not affect the rights of the parties in-- (a) the proceedings known as Director of 10 Public Prosecutions (Vic.) v. Marijancevic (No. 264 of 2011), Director of Public Prosecutions (Vic.) v. Preece (No. 263 of 2011) and Director of Public Prosecutions (Vic.) 15 v. Preece (No. 265 of 2011) in the Supreme Court of Victoria, Court of Appeal; or (b) any other proceeding in which a court, before the day on which the Evidence 20 (Miscellaneous Provisions) Amendment (Affidavits) Act 2012 receives the Royal Assent, has made a ruling on the validity of-- (i) an affidavit referred to in 25 subsection (1); or (ii) a warrant, an order, a summons or a process issued or made in reliance, directly or indirectly, on an affidavit referred to in 30 subsection (1); or (c) any other proceeding in which a court, before the day on which the Evidence (Miscellaneous Provisions) Amendment (Affidavits) Act 2012 35 receives the Royal Assent, has made a ruling on the admissibility of evidence 571201B.I-27/2/2012 5 BILL LA INTRODUCTION 27/2/2012

 


 

Evidence (Miscellaneous Provisions) Amendment (Affidavits) Bill 2012 s. 6 obtained under a warrant, an order, a summons or other process issued or made in reliance, directly or indirectly, on an affidavit that, but for subsection 5 (1), would not have been duly sworn or affirmed. (6) In this section affidavit includes a document purporting to be an affidavit.". 6 Repeal of amending Act 10 This Act is repealed on the first anniversary of the first day on which all of its provisions are in operation. Note The repeal of this Act does not affect the continuing operation of 15 the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984). 571201B.I-27/2/2012 6 BILL LA INTRODUCTION 27/2/2012

 


 

Evidence (Miscellaneous Provisions) Amendment (Affidavits) Bill 2012 Endnotes ENDNOTES By Authority. Government Printer for the State of Victoria. 571201B.I-27/2/2012 7 BILL LA INTRODUCTION 27/2/2012

 


 

 


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