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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70. Questioning to determine proper course of proceeding

70. Questioning to determine proper course of proceeding

(1) If the accused intends to call witnesses to give evidence at the hearing, the accused must indicate, when called on by the Magistrates' Court to do so-

(a) the names of those witnesses (other than the accused); and

(b) the order in which those witnesses are to be called.

(2) The accused must not present the case of the accused differently to the way indicated to the Magistrates' Court under subsection (1) without the leave of the court.

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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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55. Contest mention hearing

55. Contest mention hearing

(1) This section applies to a proceeding for-

(a) a summary offence; or

(b) an indictable offence that may be heard and determined summarily.

(2) The Magistrates' Court may, between the return date and the day on which the charge is heard, from time to time conduct a contest mention hearing.

(3) At a contest mention hearing, the Magistrates' Court may-

(a) require the parties to provide an estimate of the time expected to be needed for the hearing of the charge;

(b) require the parties to advise as to the estimated number and the availability of witnesses (other than the accused) for the hearing of the charge and whether any witnesses are from interstate or overseas;

(c) request each party to indicate the evidence that party proposes to adduce and to identify the issues in dispute;

(d) require the accused to advise whether the accused is legally represented and has funding for continued legal representation up to and including the hearing of the charge;

(e) require the parties to advise whether there are any particular requirements of, or facilities needed for, witnesses and interpreters;

(f) order a party to make, file in court or serve (as the case requires)any written or oral material required by the court for the purposes of the proceeding;

(g) allow a party to amend a document that has been prepared by or on behalf of that party for the purposes of the proceeding;

(h) if the court considers that it is in the interests of justice to do so, dispense with or vary any requirement imposed on a party by or under this Part;

(i) require or request a party to do anything else for the case management of the proceeding.

(4) The accused must attend all contest mention hearings.

Notes

1. Section 3 defines attend as to be physically present in court.

2. See section 334 in relation to a corporate accused.

3. Section 330 gives the court power to excuse an accused from attending a hearing.

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37. Contents of preliminary brief

37. Contents of preliminary brief

(1) A preliminary brief must include-

(a) a copy of the charge-sheet in respect of the alleged offence; and

(b) a notice in the form prescribed by the rules of court-

(i) explaining this section and section 84; and

(ii) explaining the importance of the accused obtaining legal representation; and

(iii) advising that the accused has the right, if eligible, to legal aid under the Legal Aid Act 1978; and

(iv) providing details of how to contact Victoria Legal Aid; and

(c) a statement made by the informant personally that complies with subsection (2) and section 38; and

(d) any evidentiary certificate issued under any Act that is likely to be relevant to the alleged offence and is available at the time the preliminary brief is served; and

(e) a copy of the criminal record of the accused that is available at the time the preliminary brief is served or a statement that the accused has no previous convictions known at that time; and

(f) if the informant refuses to disclose any information, document or thing that is required to be included in the preliminary brief, a written notice that the informant refuses disclosure under section 45, identifying the ground for refusing disclosure; and

(g) a list of any other orders that are or will be sought, as known at the time of preparation of the preliminary brief.

(2) A statement by the informant in a preliminary brief must be a complete and accurate statement of the material available to the prosecution at the time the statement is sworn, signed or attested and must include-

(a) a statement of the alleged facts on which the charge is based, including reference to the material available to the prosecution to support the alleged facts; and

(b) a description of the background to and consequences of the alleged offence, if known; and (c) a summary of any statements made by the accused concerning the alleged offence, including any confession or admission; and

(d) a list of the names of all persons who, at the time the statement is
signed, may be called by the prosecution as witnesses at the hearing of the charge, indicating whether those persons have made statements; and

(e) a list of any things the prosecution may tender as exhibits, indicating whether they are in the possession of the prosecution at
the time the statement is signed.

(3) A preliminary brief may include any other information, document or thing that is relevant to the alleged offence and may assist the accused in understanding the evidence against the accused that is available to the prosecution.

Example

Statements of key witnesses may be included in the preliminary brief.

Notes

1. If the Magistrates' Court hears and determines a charge in the absence of the accused, section 84 provides that certain documents in a preliminary brief served on the accused at least 14 days before the hearing date are admissible in evidence.

2. See section 86 as to proof of criminal record in the absence of the accused.

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33. Unrepresented accused who requires legal advice

33. Unrepresented accused who requires legal advice

If-

(a) an accused is charged with an offence punishable by imprisonment; and

(b) the accused is unrepresented on the return date-

the court must-

(c) ask the accused whether the accused has sought legal advice; and

(d) if satisfied that the accused has not had a reasonable opportunity to
obtain legal advice, grant an adjournment if so requested by the accused; and

(e) inform the accused that the accused has the right, if eligible, to
legal aid under the Legal Aid Act 1978.

In Dietrich v R (1992) 177 CLR 292, the High Court held that the refusal of an adjournment to allow an accused to seek a legal advice amounted to a miscarriage of justice where the offence alleged was considered "serious". This term was not defined. More recently, in Hakimi v Legal Aid Commission (ACT) v The ACT (Intervener) [2009] ACTSC 48 the application of an accused to order Legal Aid to act for him or stay charges was rejected. However the position in Victoria may be different, due to the operation of s.25(2)(d) of the Charter of Human Rights and Responsibilities Act 2006.

Note that the right to counsel is unlikely to extend to the right to an unlimited right of choice of practitioner: R v Williams [2007] VSC 2.

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