Evidence Amendment Act 2008 (Cth)

Evidence Amendment Act 2008 Act No. 135 of 2008 as amended This compilation was prepared on 4 April 2011 taking into account amendments up to Act No. 5 of 2011 The text of any of those amendments not in force on that date is appended in the Notes section The operation of amendments that have been incorporated may be affected by application provisions that are set out in the Notes section Prepared by the Office of Legislative Drafting and Publishing, Attorney‑General's Department, Canberra Contents 1 Short title [see Note 1] 2 Commencement 3 Schedule(s) Schedule 1—Uniform evidence amendments Part 1—Amendments Evidence Act 1995 Part 2—Transitional provisions Schedule 2—Other evidence amendments Evidence Act 1995 Schedule 3—Printed and electronic publication of Acts Part 1—Main amendments Amendments Incorporation Act 1905 Part 2—Consequential amendments Acts Interpretation Act 1901 Carriage of Goods by Sea Act 1991 Legislative Instruments Act 2003 Notes An Act to amend the law relating to evidence, and for other purposes 1 Short title [see Note 1] This Act may be cited as the Evidence Amendment Act 2008. 2 Commencement (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. Commencement information Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details 1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table The day on which this Act receives the Royal Assent. 4 December 2008 2. Schedules 1 and 2 The 28th day after the day on which this Act receives the Royal Assent. 1 January 2009 3. Schedule 3 A single day to be fixed by Proclamation. 4 December 2009 However, if any of the provision(s) do not commence within the period of 12 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period. Note: This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent. (2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act. 3 Schedule(s) Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. Schedule 1—Uniform evidence amendments Part 1—Amendments Evidence Act 1995 1 Subsection 4(1) Omit "in relation". 2 At the end of subsection 4(1) Add: Note 4: See section 79 of the Judiciary Act 1903 for the application of this Act to proceedings in a State court exercising federal jurisdiction. 3 Section 13 Repeal the section, substitute: 13 Competence: lack of capacity (1) A person is not competent to give evidence about a fact if, for any reason (including a mental, intellectual or physical disability): (a) the person does not have the capacity to understand a question about the fact; or (b) the person does not have the capacity to give an answer that can be understood to a question about the fact; and that incapacity cannot be overcome. Note: See sections 30 and 31 for examples of assistance that may be provided to enable witnesses to overcome disabilities. (2) A person who, because of subsection (1), is not competent to give evidence about a fact may be competent to give evidence about other facts. (3) A person who is competent to give evidence about a fact is not competent to give sworn evidence about the fact if the person does not have the capacity to understand that, in giving evidence, he or she is under an obligation to give truthful evidence. (4) A person who is not competent to give sworn evidence about a fact may, subject to subsection (5), be competent to give unsworn evidence about the fact. (5) A person who, because of subsection (3), is not competent to give sworn evidence is competent to give unsworn evidence if the court has told the person: (a) that it is important to tell the truth; and (b) that he or she may be asked questions that he or she does not know, or cannot remember, the answer to, and that he or she should tell the court if this occurs; and (c) that he or she may be asked questions that suggest certain statements are true or untrue and that he or she should agree with the statements that he or she believes are true and should feel no pressure to agree with statements that he or she believes are untrue. (6) It is presumed, unless the contrary is proved, that a person is not incompetent because of this section. (7) Evidence that has been given by a witness does not become inadmissible merely because, before the witness finishes giving evidence, he or she dies or ceases to be competent to give evidence. (8) For the purpose of determining a question arising under this section, the court may inform itself as it thinks fit, including by obtaining information from a person who has relevant specialised knowledge based on the person's training, study or experience. 4 Paragraph 14(a) Omit "be capable of hearing or understanding, or of communicating replies to, questions on that matter", substitute "have the capacity to understand a question about the matter or to give an answer that can be understood to a question about the matter". 5 Subsection 18(2) Omit "de facto spouse", substitute "de facto partner". 6 Paragraph 20(3)(a) Omit "de facto spouse", substitute "de facto partner". 7 Subsection 20(4) Omit "de facto spouse" (first occurring), substitute "de facto partner". 8 Paragraphs 20(4)(b) and 20(5)(b) Omit "de facto spouse", substitute "de facto partner". 9 Subsection 21(2) Omit "subsection 13(2)", substitute "section 13". 10 Subsection 29(2) Repeal the subsection, substitute: (2) A court may, on its own motion or on the application of the party that called the witness, direct that the witness give evidence wholly or partly in narrative form. 11 Paragraph 33(2)(c) Omit "lawyer", substitute "Australian legal practitioner or legal counsel". 12 Paragraph 37(1)(c) Omit "a lawyer", substitute "an Australian legal practitioner, legal counsel or prosecutor". 13 Section 41 Repeal the section, substitute: 41 Improper questions (1) The court must disallow a question put to a witness in cross‑examination, or inform the witness that it need not be answered, if the court is of the opinion that the question (referred to as a disallowable question): (a) is misleading or confusing; or (b) is unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive; or (c) is put to the witness in a manner or tone that is belittling, insulting or otherwise inappropriate; or (d) has no basis other than a stereotype (for example, a stereotype based on the witness's sex, race, culture, ethnicity, age or mental, intellectual or physical disability). (2) Without limiting the matters the court may take into account for the purposes of subsection (1), it is to take into account: (a) any relevant condition or characteristic of the witness of which the court is, or is made, aware, including age, education, ethnic and cultural background, gender, language background and skills, level of maturity and understanding and personality; and (b) any mental, intellectual or physical disability of which the court is, or is made, aware and to which the witness is, or appears to be, subject; and (c) the context in which the question is put, including: (i) the nature of the proceeding; and (ii) in a criminal proceeding—the nature of the offence to which the proceeding relates; and (iii) the relationship (if any) between the witness and any other party to the proceeding. (3) A question is not a disallowable question merely because: (a) the question challenges the truthfulness of the witness or the consistency or accuracy of any statement made by the witness; or (b) the question requires the witness to discuss a subject that could be considered distasteful to, or private by, the witness. (4) A party may object to a question put to a witness on the ground that it is a disallowable question. (5) However, the duty imposed on the court by this section applies whether or not an objection is raised to a particular question. (6) A failure by the court to disallow a question under this section, or to inform the witness that it need not be answered, does not affect the admissibility in evidence of any answer given by the witness in response to the question. Note: A person must not, without the express permission of a court, print or publish any question that the court has disallowed under this section: see section 195. 14 Subsection 50(1) Repeal the subsection, substitute: (1) The court may, on the application of a party, direct that the party may adduce evidence of the contents of 2 or more documents in question in the form of a summary if the court is satisfied that it would not otherwise be possible conveniently to examine the evidence because of the volume or complexity of the documents in question. 15 Chapter 3 (Introductory note) Omit "Part 3.11 gives courts discretions to exclude evidence even it", substitute "Part 3.11 provides for the discretionary and mandatory exclusion of evidence even if". 16 Chapter 3 (Introductory note, diagram) Repeal the diagram, substitute: 17 Subsection 59(1) After "a fact that", insert "it can reasonably be supposed that". 18 After subsection 59(2) Insert: (2A) For the purposes of determining under subsection (1) whether it can reasonably be supposed that the person intended to assert a particular fact by the representation, the court may have regard to the circumstances in which the representation was made. Note: Subsection (2A) was inserted as a response to the decision of the Supreme Court of NSW in R. v Hannes (2000) 158 FLR 359. 19 Subsection 59(3) (note) Omit: * business records (section 69); * tags and labels (section 70); * telecommunications (section 71); * contemporaneous statements about a person's health etc. (section 72); substitute: * contemporaneous statements about a person's health etc. (section 66A); * business records (section 69); * tags and labels (section 70); * electronic communications (section 71); * Aboriginal and Torres Strait Islander traditional laws and customs (section 72); 20 Section 60 Before "The hearsay rule", insert "(1)". 21 Section 60 Omit "the fact intended to be asserted by the representation", substitute "an asserted fact". 22 At the end of section 60 Add: (2) This section applies whether or not the person who made the representation had personal knowledge of the asserted fact (within the meaning of subsection 62(2)). Note: Subsection (2) was inserted as a response to the decision of the High Court of Australia in Lee v The Queen (1998) 195 CLR 594. (3) However, this section does not apply in a criminal proceeding to evidence of an admission. Note: The admission might still be admissible under section 81 as an exception to the hearsay rule if it is "first‑hand" hearsay: see section 82. 23 Subsection 61(1) Repeal the subsection, substitute: (1) This Part does not enable use of a previous representation to prove the existence of an asserted fact if, when the representation was made, the person who made it was not competent to give evidence about the fact because of subsection 13(1). 24 Subsection 61(2) (note) Omit "72", substitute "66A". 25 At the end of section 62 Add: (3) For the purposes of section 66A, a person has personal knowledge of the asserted fact if it is a fact about the person's health, feelings, sensations, intention, knowledge or state of mind at the time the representation referred to in that section was made. Note: The heading to section 62 is replaced by the heading "Restriction to "first‑hand" hearsay". 26 Paragraph 64(3)(b) Omit "made;", substitute "made.". 27 Subsection 64(3) Omit all the words from and including "if, when the representation". 28 Subsection 65(2) Omit "was" (first occurring). 29 Paragraphs 65(2)(a), (b) and (c) Before "made", insert "was". 30 Paragraph 65(2)(d) Repeal the paragraph, substitute: (d) was: (i) against the interests of the person who made it at the time it was made; and (ii) made in circumstances that make it likely that the representation is reliable. 31 After subsection 66(2) Insert: (2A) In determining whether the occurrence of the asserted fact was fresh in the memory of a person, the court may take into account all matters that it considers are relevant to the question, including: (a) the nature of the event concerned; and (b) the age and health of the person; and (c) the period of time between the occurrence of the asserted fact and the making of the representation. Note: Subsection (2A) was inserted as a response to the decision of the High Court of Australia in Graham v The Queen (1998) 195 CLR 606. 32 After section 66 Insert: 66A Exception: contemporaneous statements about a person's health etc. The hearsay rule does not apply to evidence of a previous representation made by a person if the representation was a contemporaneous representation about the person's health, feelings, sensations, intention, knowledge or state of mind. 33 Section 71 Repeal the section, substitute: 71 Exception: electronic communications The hearsay rule does not apply to a representation contained in a document recording an electronic communication so far as the representation is a representation as to: (a) the identity of the person from whom or on whose behalf the communication was sent; or (b) the date on which or the time at which the communication was sent; or (c) the destination of the communication or the identity of the person to whom the communication was addressed. Note 1: Division 3 of Part 4.3 contains presumptions about electronic communications. Note 2: Section 182 gives this section a wider application in relation to Commonwealth records. Note 3: Electronic communication is defined in the Dictionary. 34 Section 72 Repeal the section, substitute: 72 Exception: Aboriginal and Torres Strait Islander traditional laws and customs The hearsay rule does not apply to 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. 35 Section 76 (note) After: * lay opinion (section 78); Insert: * Aboriginal and Torres Strait Islander traditional laws and customs (section 78A); 36 After section 78 Insert: 78A Exception: Aboriginal and Torres Strait Islander traditional laws and customs The opinion rule does not apply to 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. 37 Section 79 Before "If a person", insert "(1)". 38 At the end of section 79 Add: (2) To avoid doubt, and without limiting subsection (1): (a) a reference in that subsection to specialised knowledge includes a reference to specialised knowledge of child development and child behaviour (including specialised knowledge of the impact of sexual abuse on children and their development and behaviour during and following the abuse); and (b) a reference in that subsection to an opinion of a person includes, if the person has specialised knowledge of the kind referred to in paragraph (a), a reference to an opinion relating to either or both of the following: (i) the development and behaviour of children generally; (ii) the development and behaviour of children who have been victims of sexual offences, or offences similar to sexual offences. 39 At the end of section 82 Add: Note: Section 60 does not apply in a criminal proceeding to evidence of an admission. 40 Subsection 85(1) Repeal the subsection, substitute: (1) This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant: (a) 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; or (b) as a result of an act of another person who was, and who the defendant knew or reasonably believed to be, capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued. Note: Subsection (1) was inserted as a response to the decision of the High Court of Australia in Kelly v The Queen (2004) 218 CLR 216. 41 Subsection 89(1) Omit "in the course of official questioning", substitute "by an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence". 42 Subsection 97(1) Repeal the subsection, substitute: (1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless: (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence; and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. 43 Section 98 Repeal the section, substitute: 98 The coincidence rule (1) Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless: (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence; and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. Note: One of the events referred to in subsection (1) may be an event the occurrence of which is a fact in issue in the proceeding. (2) Paragraph (1)(a) does not apply if: (a) the evidence is adduced in accordance with any directions made by the court under section 100; or (b) the evidence is adduced to explain or contradict coincidence evidence adduced by another party. Note: Other provisions of this Act, or of other laws, may operate as exceptions to the coincidence rule. 44 Section 102 Repeal the section. 45 Before section 103 Insert: Division 1—Credibility evidence 101A Credibility evidence Credibility evidence, in relation to a witness or other person, is evidence relevant to the credibility of the witness or person that: (a) is relevant only because it affects the assessment of the credibility of the witness or person; or (b) is relevant: (i) because it affects the assessment of the credibility of the witness or person; and (ii) for some other purpose for which it is not admissible, or cannot be used, because of a provision of Parts 3.2 to 3.6. Note 1: Sections 60 and 77 will not affect the application of paragraph (b), because they cannot apply to evidence that is yet to be admitted. Note 2: Section 101A was inserted as a response to the decision of the High Court of Australia in Adam v The Queen (2001) 207 CLR 96. Division 2—Credibility of witnesses 102 The credibility rule Credibility evidence about a witness is not admissible. Note 1: Specific exceptions to the credibility rule are as follows: * evidence adduced in cross‑examination (sections 103 and 104); * evidence in rebuttal of denials (section 106); * evidence to re‑establish credibility (section 108); * evidence of persons with specialised knowledge (section 108C); * character of accused persons (section 110). Other provisions of this Act, or of other laws, may operate as further exceptions. Note 2: Sections 108A and 108B deal with the admission of credibility evidence about a person who has made a previous representation but who is not a witness. 46 Subsection 103(1) Omit "has substantial probative value", substitute "could substantially affect the assessment of the credibility of the witness". 47 Subsection 103(2) Omit "in deciding whether the evidence has substantial probative value", substitute "for the purposes of subsection (1)". 48 Subsection 104(1) After "applies only", insert "to credibility evidence". 49 Subsection 104(2) Omit "only because it is relevant to", substitute "to the assessment of". 50 Subsection 104(4) Repeal the subsection, substitute: (4) Leave must not be given for cross‑examination by the prosecutor under subsection (2) unless evidence adduced by the defendant has been admitted that: (a) tends to prove that a witness called by the prosecutor has a tendency to be untruthful; and (b) is relevant solely or mainly to the witness's credibility. 51 Subsection 104(5) Omit "paragraph (4)(b)", substitute "subsection (4)". 52 Section 106 Repeal the section, substitute: 106 Exception: rebutting denials by other evidence (1) The credibility rule does not apply to evidence that is relevant to a witness's credibility and that is adduced otherwise than from the witness if: (a) in cross‑examination of the witness: (i) the substance of the evidence was put to the witness; and (ii) the witness denied, or did not admit or agree to, the substance of the evidence; and (b) the court gives leave to adduce the evidence. (2) Leave under paragraph (1)(b) is not required if the evidence tends to prove that the witness: (a) is biased or has a motive for being untruthful; or (b) has been convicted of an offence, including an offence against the law of a foreign country; or (c) has made a prior inconsistent statement; or (d) is, or was, unable to be aware of matters to which his or her evidence relates; or (e) has knowingly or recklessly made a false representation while under an obligation, imposed by or under an Australian law or a law of a foreign country, to tell the truth. 53 After section 108 Insert: Division 3—Credibility of persons who are not witnesses 54 Subsection 108A(1) Repeal the subsection, substitute: (1) If: (a) evidence of a previous representation has been admitted in a proceeding; and (b) the person who made the representation has not been called, and will not be called, to give evidence in the proceeding; credibility evidence about the person who made the representation is not admissible unless the evidence could substantially affect the assessment of the person's credibility. 55 Subsection 108A(2) Omit "in deciding whether the evidence has substantial probative value", substitute "for the purposes of subsection (1)". 56 After section 108A Insert: 108B Further protections: previous representations of an accused who is not a witness (1) This section applies only in a criminal proceeding and so applies in addition to section 108A. (2) If the person referred to in that section is a defendant, the credibility evidence is not admissible unless the court gives leave. (3) Despite subsection (2), leave is not required if the evidence is about whether the defendant: (a) is biased or has a motive to be untruthful; or (b) is, or was, unable to be aware of or recall matters to which his or her previous representation relates; or (c) has made a prior inconsistent statement. (4) The prosecution must not be given leave under subsection (2) unless evidence adduced by the defendant has been admitted that: (a) tends to prove that a witness called by the prosecution has a tendency to be untruthful; and (b) is relevant solely or mainly to the witness's credibility. (5) A reference in subsection (4) to evidence does not include a reference to evidence of conduct in relation to: (a) the events in relation to which the defendant is being prosecuted; or (b) the investigation of the offence for which the defendant is being prosecuted. (6) Another defendant must not be given leave under subsection (2) unless the previous representation of the defendant that has been admitted includes evidence adverse to the defendant seeking leave. Division 4—Persons with specialised knowledge 108C Exception: evidence of persons with specialised knowledge (1) The credibility rule does not apply to evidence given by a person concerning the credibility of another witness if: (a) the person has specialised knowledge based on the person's training, study or experience; and (b) the evidence is evidence of an opinion of the person that: (i) is wholly or substantially based on that knowledge; and (ii) could substantially affect the assessment of the credibility of a witness; and (c) the court gives leave to adduce the evidence. (2) To avoid doubt, and without limiting subsection (1): (a) a reference in that subsection to specialised knowledge includes a reference to specialised knowledge of child development and child behaviour (including specialised knowledge of the impact of sexual abuse on children and their behaviour during and following the abuse); and (b) a reference in that subsection to an opinion of a person includes, if the person has specialised knowledge of that kind, a reference to an opinion relating to either or both of the following: (i) the development and behaviour of children generally; (ii) the development and behaviour of children who have been victims of sexual offences, or offences similar to sexual offences. 57 Section 112 Omit "is not to be", substitute "must not be". 58 Paragraphs 114(5)(a) and (b) Omit "a lawyer", substitute "an Australian legal practitioner or legal counsel". 59 Subsection 117(1) (paragraph (a) of the definition of client) Repeal the paragraph, substitute: (a) a person or body who engages a lawyer to provide legal services or who employs a lawyer (including under a contract of service); 60 Subsection 117(1) (definition of lawyer) Repeal the definition, substitute: lawyer means: (a) an Australian lawyer; and (b) an Australian‑registered foreign lawyer; and (c) an overseas‑registered foreign lawyer or a natural person who, under the law of a foreign country, is permitted to engage in legal practice in that country; and (d) an employee or agent of a lawyer referred to in paragraph (a), (b) or (c). 61 Paragraph 118(c) Omit "client or a lawyer", substitute "client, lawyer or another person". 62 Section 122 Repeal the section, substitute: 122 Loss of client legal privilege: consent and related matters (1) This Division does not prevent the adducing of evidence given with the consent of the client or party concerned. (2) Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120. (3) Without limiting subsection (2), a client or party is taken to have so acted if: (a) the client or party knowingly and voluntarily disclosed the substance of the evidence to another person; or (b) the substance of the evidence has been disclosed with the express or implied consent of the client or party. (4) The reference in paragraph (3)(a) to a knowing and voluntary disclosure does not include a reference to a disclosure by a person who was, at the time of the disclosure, an employee or agent of the client or party or of a lawyer of the client or party unless the employee or agent was authorised by the client, party or lawyer to make the disclosure. (5) A client or party is not taken to have acted in a manner inconsistent with the client or party objecting to the adducing of the evidence merely because: (a) the substance of the evidence has been disclosed: (i) in the course of making a confidential communication or preparing a confidential document; or (ii) as a result of duress or deception; or (iii) under compulsion of law; or (iv) if the client or party is a body established by, or a person holding an office under, an Australian law—to the Minister, or the Minister of the Commonwealth, the State or Territory, administering the law, or part of the law, under which the body is established or the office is held; or (b) of a disclosure by a client to another person if the disclosure concerns a matter in relation to which the same lawyer is providing, or is to provide, professional legal services to both the client and the other person; or (c) of a disclosure to a person with whom the client or party had, at the time of the disclosure, a common interest relating to the proceeding or an anticipated or pending proceeding in an Australian court or a foreign court. (6) This Division does not prevent the adducing of evidence of a document that a witness has used to try to revive the witness's memory about a fact or opinion or has used as mentioned in section 32 (Attempts to revive memory in court) or 33 (Evidence given by police officers). 63 Section 128 Repeal the section, substitute: 128 Privilege in respect of self‑incrimination in other proceedings (1) This section applies if a witness objects to giving particular evidence, or evidence on a particular matter, on the ground that the evidence may tend to prove that the witness: (a) has committed an offence against or arising under an Australian law or a law of a foreign country; or (b) is liable to a civil penalty. (2) The court must determine whether or not there are reasonable grounds for the objection. (3) If the court determines that there are reasonable grounds for the objection, the court is to inform the witness: (a) that the witness need not give the evidence unless required by the court to do so under subsection (4); and (b) that the court will give a certificate under this section if: (i) the witness willingly gives the evidence without being required to do so under subsection (4); or (ii) the witness gives the evidence after being required to do so under subsection (4); and (c) of the effect of such a certificate. (4) The court may require the witness to give the evidence if the court is satisfied that: (a) the evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country; and (b) the interests of justice require that the witness give the evidence. (5) If the witness either