Victorian Bills Explanatory Memoranda Victorian Bills Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
Evidence (Miscellaneous Provisions)
Amendment (Affidavits) Bill 2012
Introduction Print
EXPLANATORY MEMORANDUM
General
The Evidence (Miscellaneous Provisions) Act 1958 provides for a range of
miscellaneous matters relating to evidentiary issues, including oaths and
affirmations outside court proceedings, statutory declarations and affidavits.
This Bill amends the Evidence (Miscellaneous Provisions) Act 1958 to
respond to issues identified in County Court proceedings regarding the failure
of members of Victoria Police to properly swear or affirm affidavits in
support of search warrants. The procedural defects in the relevant affidavits
resulted in evidence obtained pursuant to the search warrants being excluded
from the proceedings under section 138 of the Evidence Act 2008.
Clause Notes
Clause 1 sets out the purposes of the Bill, which are--
to address procedural defects in relation to certain
affidavits; and
to create an offence of making a false or misleading
statement in relation to the swearing or affirming of
affidavits.
Clause 2 provides for the commencement of the Bill. The Bill, with the
exception of clauses 4 and 5, comes into operation on the day
it receives the Royal Assent. Clause 5 is deemed to have
retrospective operation and will be taken to have commenced on
12 November 2011. Clause 5 will have retrospective operation
from that date as it is the day after the Court of Appeal decision
in Director of Public Prosecutions v Marijancevic, Director
of Public Prosecutions v Preece and Director of Public
571201 1 BILL LA INTRODUCTION 27/2/2012
Prosecutions v Preece [2011] VSCA 355. The retrospective
operation of this clause will minimise the adverse impact of
procedural defects in affidavits on the court system, victims of
crime and community safety. From 12 November 2011, Victoria
Police members should have been aware of the requirements for
the making of an affidavit on oath or by affirmation and the Bill
will not remedy any defects in affidavits signed on or after
12 November 2011.
Clause 4 commences on the day after the day of Royal Assent.
Clause 3 provides that the Evidence (Miscellaneous Provisions) Act
1958 is the Principal Act.
Clause 4 inserts a new section 126B into the Evidence (Miscellaneous
Provisions) Act 1958 creating a new offence of providing false
or misleading statements as to the circumstances in which an
affidavit (or a document purporting to be an affidavit) was
sworn or affirmed or as to whether the affidavit (or document
purporting to be an affidavit) was sworn or affirmed.
The offence carries a maximum penalty of 10 penalty units.
The new offence is intended to encourage appropriate disclosure
in relation to the circumstances of swearing or affirming
affidavits. Where a person is on oath, in a court, for example,
providing false information will make the person subject to the
offence of perjury.
This offence will apply to statements made after the
commencement of new section 126B irrespective of when the
subject affidavit or document purporting to be an affidavit was
made.
Clause 5 inserts new section 165 into the Evidence (Miscellaneous
Provisions) Act 1958.
New section 165 applies to affidavits (or documents purporting to
be affidavits) made before 12 November 2011. New section 165
provides that where an affidavit signed before 12 November 2011
by a person and by a person authorised to administer oaths
contains words indicating that the affidavit (or document
purporting to be an affidavit) was made on oath or affirmation,
compliance with certain procedures for the making of an affidavit
is not, and was not, required.
2
New section 165 provides that it was not at any time necessary
for the validity of the affidavit that--
an oath or affirmation was made orally;
the first person signed the affidavit in the presence of
the person duly authorised to administer oaths;
the person duly authorised to administer oaths signed
the affidavit in the presence of the first person;
the person duly authorised to administer oaths observed
the first person signing the affidavit; or
that the affidavit contained the statement required by
section 126 of the Evidence (Miscellaneous
Provisions) Act 1958.
The Bill provides that the words indicating that the first person
states that the affidavit was made on oath or affirmation are taken
to be effective even where the procedures for the making of an
affidavit were not followed. This will only apply where the
affidavit is signed by the first person and a person authorised to
administer oaths and contains the written statement that the
affidavit was made on oath or affirmation.
New section 165(2) provides that a warrant, order, summons or
other process issued or made by a court or a judicial officer in
reliance, directly or indirectly, on an affidavit is not invalid only
by reason of the fact that the affidavit was not duly sworn or
affirmed. There are a number of warrants, orders, summons and
processes issued or made by a court or judicial officer which
may rely upon affidavits as the primary source of evidence in
support of the relevant warrant, order, summons or process.
New subsection (2) will ensure that these warrants, orders
summons or processes are not invalid due to a failure to comply
with certain procedures for the making of an affidavit.
New section 165(3) provides for the exercise of the discretion
to admit evidence obtained on the basis of affidavits that are
deemed to have been duly sworn or affirmed by the Bill.
New subsection (3) provides that when considering whether to
admit evidence obtained in reliance, directly or indirectly, on an
affidavit, the court should not have regard to the fact that, but for
the operation of new section 165(1) the affidavit was not duly
sworn or affirmed.
3
Subsection (4) clarifies that, subject to subsection (3), the section
is not intended to limit a discretion that a court has to exclude
evidence in a criminal proceeding or to stay a criminal
proceeding in the interests of justice.
New section 165(5) provides that the rights of the parties in the
proceedings known as Director of 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.) v Preece (No 265 of 2011) in the Supreme
Court of Victoria, Court of Appeal are not affected by the Bill.
In addition, new subsection (5) preserves all rulings made before
the day on which the Bill receives the Royal Assent in relation
to--
the validity of an affidavit;
the validity of a warrant, an order, a summons or a
process issued or made in reliance, directly or indirectly,
on an affidavit; or
the admissibility of evidence obtained under a warrant,
an order, a summons or other process issued or made in
reliance, directly or indirectly, on an affidavit.
New section 165(6) clarifies that references to affidavits in new
section 165 are intended to include documents purporting to be
affidavits.
Clause 6 repeals the amending Act on the first anniversary of the first date
all its provisions are in operation. This repeal does not affect the
continuing operation of these amendments: see section 15(1) of
the Interpretation of Legislation Act 1984.
4