So what's important here?

Well, it's all important.

But, if I were on a really tight schedule I would have a look at Chapter 8, under the innocuous-sounding title of General.

What will make the Evidence Act 2008 so difficult for generations of legal students to come is that it's natural, given the title it has been given and the way it has been laid out, to assume that it's a one-stop shop on evidence law. And, come to think of it, that's the way it was sold, too.

Then you get to s 8 of that Act and realise that any contradictory provision in any other act is going to have primacy.

So for that reason alone, dip into s 328 through 389 and see how they modify the existing law.

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386. Form in which recording of complainant's evidence is to be tendered

386. Form in which recording of complainant's evidence is to be tendered

(1) A recording that is tendered as evidence by the prosecution under this Division must be the best available record, or be comprised of the best available records, of the evidence of the complainant.

(2) In subsection (1)—
the best available record of the evidence, or any part of the evidence, means an audiovisual recording of the evidence.

(3) In exceptional circumstances and having regard to whether the accused would be unfairly prejudiced, the court may admit as evidence an audio recording of the evidence, or any part of the evidence, if an audiovisual recording of the evidence is not available.

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377. Exception to hearsay rule—previous representations made by complainant under 18 years

377. Exception to hearsay rule — previous representations made by complainant under 18 years

(1) In this section—

asserted fact has the same meaning as in the Evidence Act 2008;
hearsay rule has the same meaning as in the Evidence Act 2008;
previous representation has the same meaning as in the Evidence Act 2008.

(2) This section applies in a criminal proceeding that relates (wholly or partly) to a charge for a sexual offence if a complainant under the age of 18 years who made a previous representation is available to give evidence about an asserted fact or the complainant's credibility is relevant.

(3) Subject to subsection (4), if a complainant has been or is to be called to give evidence, the hearsay rule does not apply to evidence to support an asserted fact or the complainant's credibility that is given by—

(a) the complainant; or

(b) a person who saw, heard or otherwise perceived the representation being made.

(4) Subsection (3) does not apply unless the court is satisfied that the evidence is relevant to a fact in issue and is sufficiently probative, having regard to the nature and content of the representation and the circumstances in which it was made.

(5) A witness has personal knowledge of the asserted fact if his or her knowledge of that fact was, or might reasonably be supposed to have been, based on something that the person saw, heard or otherwise perceived, other than a previous representation made by another person about the fact.

(6) Evidence of the kind referred to in subsection (3) is admissible to support the credibility of the complainant as a witness.

(7) Nothing in this section takes away from or limits any discretion a court has to exclude evidence.

Offences which may be dealt with summarily which attract this provision are:

- s 39 indecent assault
- s 47 indecent act with a child under 16
- s 48 sexual penetration of 16 or 17 year old child

It should be noted that it is not necessary for the witness giving the evidence to be a child or to be the complainant of the alleged offence(s) in order to fall under this provision, provided a child is the complainant in the hearing.

This section modifies s 59 of the Evidence Act 2008 by virtue of s 8, which provides that the Evidence Act does not affect the operation of other Acts. However, discretions to reject the evidence under ss 135, 137 and 138 may be invoked. The case of R v Christie [1914] AC 545 is relevant to the exercise of discretion.

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336A. Victim who is a witness entitled to be present in court

336A. Victim who is a witness entitled to be present in court

(1) In a criminal proceeding where a victim of the offence is a witness in the proceeding, the court may order the victim to leave the courtroom until required to give evidence only if the court considers it appropriate to do so.

(2) Nothing in this section prevents the court from ordering a victim who is a witness to leave the courtroom at any time after giving evidence.

This section was inserted by the Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009. It had earlier been introduced into the Evidence Act 1958, according to the amending legislation's Explanatory Memorandum, to, "to support and recognise the role of victims in criminal proceedings".

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319. Evidence of competent but not compellable witness

319. Evidence of competent but not compellable witness

For the purposes of this Part, if the Court of Appeal considers that it is in the interests of justice to do so, the Court of Appeal may receive the evidence of any witness (including the appellant) who is a competent but not compellable witness.

Note

As to competence and compellability of witnesses, see Division 1 of Part 2.1 of Chapter 2 of the Evidence Act 2008.

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86. Proof of criminal record in absence of accused

86. Proof of criminal record in absence of accused

(1) If-

(a) an accused is charged with a summary offence; and

(b) it is alleged that the accused has previous convictions-

there may be served on the accused a copy of the criminal record of the
accused.

Notes

1. See section 77 as to contents of a criminal record.

2. A copy of the criminal record of the accused is included in the preliminary brief (section 37) or, if a preliminary brief is not served, in the full brief (section 41).

(2) If the Magistrates' Court-

(a) finds the accused guilty in the absence of the accused; and

(b) is satisfied that a copy of the criminal record of the accused was served on the accused at least 14 days before the hearing of the charge-

the criminal record is admissible only for the purpose of sentencing and-

(c) is evidence that the accused has the previous convictions set out in the criminal record; and

(d) is evidence of the particulars set out in the criminal record.

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84. Admissibility of evidence in absence of accused where preliminary brief served

84. Admissibility of evidence in absence of accused where preliminary brief served

(1) If-

(a) under section 25(1) or 80 the Magistrates' Court proceeds to hear and determine a charge in the absence of the accused; and

(b) the informant has served a preliminary brief on the accused in accordance with Division 2 of Part 3.2 at least 14 days before the date of the hearing under paragraph (a); and

(c) the Magistrates' Court considers that the matters set out in the preliminary brief disclose the offence charged-

the following are, subject to subsections (4) and (5), admissible in evidence, despite the rule against hearsay-

(d) the informant's statement in the preliminary brief;

(e) any exhibit referred to in the informant's statement.

(2) Without limiting any other power conferred on the Magistrates' Court, if the court considers that the matters set out in a preliminary brief do not disclose the offence charged, the court may require the informant to provide additional evidence.

(3) The additional evidence referred to in subsection (2) is inadmissible
unless-

(a) it is in the form of written statements that comply with section 38; and

(b) a copy of each statement has been served on the accused at least 14 days before the Magistrates' Court considers the additional evidence.

(4) The Magistrates' Court may rule as inadmissible the whole or any part of a preliminary brief, a statement or an exhibit.

(5) The criminal record of the accused or a statement that the accused has no previous convictions, when served in a preliminary brief, is only admissible for the purpose of sentencing in accordance with section 86.

(6) This section does not limit the power of the Magistrates' Court to proceed to hear and determine the charge in the absence of the accused under section 25(1) or 80 on the basis of sworn evidence given by or on behalf of the informant if the informant has not served a preliminary brief on the accused.

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83. Admissibility of evidence in absence of accused where full brief served

83. Admissibility of evidence in absence of accused where full brief served

(1) If-

(a) under section 25(1) or 80 the Magistrates' Court proceeds to hear and determine a charge in the absence of the accused; and

(b) the informant has served a full brief on the accused in accordance with Division 2 of Part 3.2-

the following are, subject to subsections (2) and (3), admissible as if their contents were a record of evidence given orally-

(c) any statement a copy of which has been served in the full brief;

(d) any exhibit or document referred to in a statement which is admissible.

(2) The Magistrates' Court may rule as inadmissible the whole or any part of a statement or of any exhibit or document referred to in a statement.

(3) The criminal record of the accused or a statement that the accused has no previous convictions, when served in a full brief, is only admissible for the purpose of sentencing in accordance with section 86.

(4) Subsection (1) does not limit the power of the Magistrates' Court to proceed to hear and determine the charge in the absence of the accused under section 25(1) or 80on the basis of sworn evidence given by or on behalf of the informant if the informant has not served a full brief on the accused.

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72. Evidential burden on accused for exceptions etc.

72. Evidential burden on accused for exceptions etc.

(1) If-

(a) an Act or subordinate instrument creates an offence and provides any exception, exemption, proviso, excuse or qualification, whether it does or does not accompany the description of the offence; and

(b) the accused wishes to rely on the exception, exemption, proviso, excuse or qualification-

the accused must present or point to evidence that suggests a reasonable possibility of the existence of facts that, if they existed, would establish the exception, exemption, proviso, excuse or qualification.

(2) No proof in relation to an exception, exemption, proviso, excuse or qualification is required on the part of the informant unless the accuse as presented or pointed to evidence in accordance with subsection (1).

(3) If satisfied that it is in the interests of justice to do so the Magistrates' Court may allow the prosecutor to re-open the case for the prosecution in order to adduce evidence in rebuttal of evidence presented or pointed to by the accused in accordance with subsection (1).

This section replaces s 130 Magistrates' Court Act 1989 and is drafted in similar terms. The accused is not required to adduce evidence to establish his exception, exemption, poviso, excuse or qualification if s/he is able to point to evidence that forms part of the prosecution case that does this.

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71. Opening address of accused at beginning of case for the accused

71. Opening address of accused at beginning of case for the accused

(1) If the accused intends to give evidence, or to call other witnesses on behalf of the accused, or both, the Magistrates' Court may grant leave to the accused to open the case for the accused if the court considers it appropriate to do so.

(2) If the accused gives an opening address, it must be given before the accused gives evidence or calls any other witnesses.

(3) The Magistrates' Court may limit the length of the opening address of the accused.

(4) The accused is not required to give evidence before any other witness is called on behalf of the accused.

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69. Procedure for joint hearings if no case submission made

69. Procedure for joint hearings if no case submission made

(1) After the close of the case for the prosecution, an accused who wishes to make a submission that there is no case for the accused to answer must do so at that time.

(2) If, after the Magistrates' Court has ruled on all no case submissions, charges against 2 or more accused remain to be determined, each accused must advise the court, in response to questioning under section 67 or 68, which of the options referred to in section 66(b) or (c) the accused elects to take.

The provisions here and at 66 appear to change what was the position at common law in Victoria, that where one co-accused makes a no case to answer submission and the othe co-accused does not, the judge should not rule on the submission until the co-accused not making the submission has called evidence (if any): R v Anthony [1962] VR 440.

This approach was approved by Young CJ in R v Faure and Corrigan [1978] VR 246 but is inconsistent with other Australian jurisdictions.

Most recently, in R v Croxford & Doubleday (Ruling No 4) [2009] VSC 519 Coghlan J allowed counsel for a co-accused to defer announcement of the course to be taken, and was permitted to do so. This occurred in August 2009 (before the commencement of the Criminal Procedure Act 2009).

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68. Election when accused is not legally represented

68. Election when accused is not legally represented

(1) If the accused is not represented by a legal practitioner, immediately after the close of the case for the prosecution the Magistrates' Court must inform the accused, in a manner that is likely to be understood by the accused that-

(a) the accused has the right to answer the charge and must choose either-

(i) to give sworn evidence, that is, to enter the witness box, take the oath or make an affirmation and say what the accused wants to say in answer to the charge and then to respond to any questions from the prosecution or the court about the evidence of the accused; or

(ii) to say nothing in answer to the charge; and

(b) in either case, the accused may call any witnesses to give sworn evidence for the accused.

(2) After giving the information referred to in subsection (1), the Magistrates' Court must ask the accused what the accused wants to do.

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66. Accused entitled to respond after close of prosecution case

66. Accused entitled to respond after close of prosecution case

After the close of the case for the prosecution, an accused is entitled-

(a) to make a submission that there is no case for the accused to answer;

(b) to answer the charge by choosing to give evidence or call other witnesses to give evidence or both;

(c) not to give evidence or call any witnesses.

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54. Summary case conference

54. Summary case conference

(1) A summary case conference is a conference between the prosecution and the accused for the purpose of managing the progression of the case including-

(a) identifying and providing to the accused any information, document or thing in the possession of the prosecution that may assist the accused to understand the evidence available to the prosecution; and

(b) identifying any issues in dispute; and

(c) identifying the steps required to advance the case; and

(d) any other purpose prescribed by the rules of court.

(2) If a preliminary brief is served in accordance with section 24, a summary case conference must be conducted before-

(a) the charge is set down for a contest mention hearing or a summary hearing; or

(b) a request for a full brief is made under section 39(1).

(3) The Magistrates' Court may direct the parties to attend a summary case
conference.

(4) Nothing in this section prevents a summary case conference from being
conducted at any other time, if the parties agree.

(5) If an accused is not legally represented, a summary case conference must not be conducted unless the Magistrates' Court is satisfied that the
conference is appropriate, having regard to whether the accused has had a
reasonable opportunity to obtain legal advice.

(6) If the Magistrates' Court is not satisfied as required by subsection 5), the court may dispense with the requirement under subsection (2) to conduct a summary case conference.

(7) Evidence of-

(a) anything said or done in the course of a summary case conference; or

(b) any document prepared solely for the purposes of a summary case conference-

is not admissible in any proceeding before any court or tribunal or in any inquiry in which evidence is or may be given before any court or person acting judicially, unless all parties to the summary case conference agree to the giving of the evidence.

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53. Mention hearing

53. Mention hearing

At a mention hearing, the Magistrates' Court may-

(a) if the offence is an indictable offence that may be heard and determined summarily, grant a summary hearing;

(b) proceed immediately to hear and determine the charge;

(c) fix a date for a contest mention hearing;

(d) fix a date for a summary hearing of the charge;

(e) make any other order or give any direction that the court considers appropriate.

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52. Offence to communicate with alibi witness

52. Offence to communicate with alibi witness

(1) If a person (other than a person referred to in subsection (2)) has been named or referred to as a proposed witness in a notice of alibi given under section 51-

(a) a person acting for the prosecution; or

(b) a member of the police force-

must not communicate with that person directly or indirectly with respect to the charge or any related matter before the conclusion of the proceeding, including any rehearing, without the consent and presence during the communication of-

(c) the legal practitioner representing the accused; or

(d) if not legally represented, the accused.

Penalty: Level 8 imprisonment (1 year maximum)

(2) Subsection (1) does not apply to a person who the accused has been notified may be called as a witness for the prosecution at the summary hearing.

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51. Alibi evidence

51. Alibi evidence

(1) This section applies to an accused on a summary hearing, if the accused is represented by a legal practitioner.

(2) An accused must not, without leave of the court-

(a) give evidence personally; or

(b) adduce evidence from another witness-

in support of an alibi unless the accused has given notice of alibi within the period referred to in subsection (3).

(3) A notice of alibi is given by serving the notice on the prosecutor or the informant-

(a) at least 7 days before the day on which the contest mention hearing is to be held; or

(b) if there is no contest mention hearing, at least 7 days before the summary hearing; or

(c) if the notice is not then in existence, as soon as possible after it comes into existence.

(4) A notice of alibi must be served in accordance with section 392.

(5) A notice of alibi must contain-

(a) particulars as to time and place of the alibi; and

(b) the name and last known address of any witness to the alibi; and

(c) if the name and address of a witness are not known, any information which might be of material assistance in finding the witness.

(6) If the name and address of a witness are not included in a notice of
alibi, the accused must not call that person to give evidence in support of
the alibi unless the court is satisfied that the accused took reasonable steps to ensure that the name and address would be ascertained.

(7) If the accused is notified by the informant that a witness named or
referred to in a notice of alibi has not been traced, the accused must give
written notice to the informant, without delay, of any further information
which might be of material assistance in finding the witness.

(8) The court must not refuse leave under subsection (2) if it appears to the court that the accused was not informed of the requirements of this section.

(9) If-

(a) an accused gives notice of alibi under this section; and

(b) the prosecutor requests an adjournment-

the court must grant an adjournment for a period that appears to the court to be necessary to enable investigation of the alibi unless it appears that to do so would prejudice the proper presentation of the case of the accused.

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50. Expert evidence

50. Expert evidence

(1) If the accused intends to call a person as an expert witness at the
hearing of the charge, the accused must serve on the informant in accordance with section 392 and file in court a copy of the statement of the expert witness in accordance with subsection (2)-

(a) at least 7 days before the day on which the contest mention hearing is to be held; or

(b) if there is no contest mention hearing, at least 7 days before the summary hearing; or

(c) if the statement is not then in existence, as soon as possible after
it comes into existence.

(2) The statement must-

(a) contain the name and business address of the witness; and

(b) describe the qualifications of the witness to give evidence as an expert; and

(c) set out the substance of the evidence it is proposed to adduce from the witness as an expert, including the opinion of the witness and the acts, facts, matters and circumstances on which the opinion is formed.

Note

Section 177 of the Evidence Act 2008 provides for certificates of expert evidence.

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49. Informant may place material on database

49. Informant may place material on database

(1) This section applies if-

(a) the informant is a member of the police force or an officer of a prescribed agency; and

(b) the accused's legal practitioner is authorised by the Secretary to the
Department of Justice to access electronically the information, documents and things referred to in section 43; and

(c) it is practicable to transmit electronically the information, documents and things that are required to be disclosed.

(2) Subject to this Division, the informant must place on the prescribed database a copy of-

(a) the preliminary brief, if any; and

(b) the full brief; and

(c) all additional information, documents and things, if any, requested by the accused under section 43; and

(d) all additional information, documents and things required to be disclosed under section 42.

(3) Placement of copies of material on the prescribed database under subsection (2) is deemed to be service for the purposes of this Division.

Note

Time limits provided in this Division for service of a preliminary brief,
a full brief or particular information, documents or things still apply.

(4) A statement by the informant in a copy of a preliminary brief placed on
the prescribed database need not be sworn or attested as required by section 38 if-

(a) the database technology does not permit placement of the copy in that form; and

(b) a physical copy of the preliminary brief complies with section 38.

(5) An informant who places an unsworn or unattested preliminary brief on the prescribed database must retain the physical copy of the preliminary brief that is sworn or attested for a period of 12 months after the termination of the charge.

Note

Section 414 provides for acknowledgment of false statements.

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48. Disclosure of address or telephone number of witness

48. Disclosure of address or telephone number of witness

(1) The informant must not disclose the address or telephone number including a private, business or official address or telephone number) of any person in any information, document or thing provided to the accused under this Division unless-

(a) the informant believes that-

(i) the information, document or thing does not identify the address or telephone number as that of any particular person; or

(ii) the address or telephone number is relevant to the offence charged and disclosure is not likely to present a reasonably ascertainable risk to the welfare or physical safety of any person; or

(b) the Magistrates' Court permits the disclosure in accordance with subsection (3) on application made by the informant or the accused.

(2) For the purposes of subsection (1), the informant may delete, or render illegible, an address or telephone number included in the information, document or thing before service on the accused.

(3) The Magistrates' Court may grant an application made under subsection(1)(b) if the court is satisfied that-

(a) the address or telephone number is relevant to the offence charged; and

(b) one of the following applies-

(i) disclosure is not likely to present a reasonably ascertainable risk to the welfare or physical safety of any person; or

(ii) having regard to the matters referred to in subsection (4), the interests of justice outweigh any risk referred to in subparagraph (i).

(4) For the purposes of subsection (3)(b)(ii), the Magistrates' Court must
have regard to-

(a) the right to privacy of the witness; and

(b) the right of the accused to prepare properly for the hearing.

Note

See section 14 of the Victims' Charter Act 2006 as to victims' privacy.

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