Review of the Evidence Act 1958 (Vic.) and
Review of the Role and Appointment of Public Notaries

Introduction by the Chair

I have great pleasure introducing the Report on the Review of the Evidence Act 1958 (Vic) by the Scrutiny of Acts and Regulations Committee.

The Scrutiny of Acts and Regulations Committee established in the 52nd Parliament was given a Reference to review the Evidence Act 1958 (Vic) on 4 July 1995. The Committee was requested to present a final report to the Parliament by the first sitting day of the 1996 Autumn Parliamentary Session. A State election was held on 30 March 1996. The Committee was dissolved and the Reference lapsed. The Government was returned. A new Committee was formed for the life of the 53rd Parliament. The Reference was again referred to the Committee by the Governor in Council on 20 June 1996.

I have had the privilege of serving as the Chair of the new Scrutiny of Acts and Regulations Committee from June 1996. In essence, the Committee supports the adoption of the Commonwealth Evidence Act 1995 subject to the recommendations set out in the Report. The Committee also supports the reform of appointment procedures for notaries public in Victoria. The Committee is of the view that notaries public should be appointed by the Supreme Court of Victoria. Particular reforms in the other area of witnessing documents are contained within the Report.

The Committee has been delighted to be involved in this important area of law reform. The members have found the work both challenging and rewarding. The Committee believes that the implementation of these reforms will place the legal profession in the best position to serve the members of the public both now and in the future. It is now some twenty years since the first tentative steps were taken by the Australian Law Reform Commission down the path of uniform evidence laws. This Report represents a further stride toward uniformity. It can only be of assistance to litigants to have one coherent Evidence Act which governs both the State and the Commonwealth.

The Committee was most fortunate to retain the services of two consultants from the Law School at the University of Melbourne, Mr Greg Reinhardt and Mr Andrew Palmer. Mr Reinhardt and Mr Palmer undertook the substantive writing of the Report. Mr Reinhardt was responsible for those areas of the Report relating to evidence in civil matters. Mr Palmer was responsible for those areas of the Report relating to evidence in criminal matters. Without their expertise, patience and eloquence, this Report could not have been produced. I thank them for their contribution.

Ms Karen McDonald has spent six months with the Committee on secondment from the Department of Premier and Cabinet. Ms McDonald was responsible for that part of the Report relating to the reform of appointment procedures for public notaries. Ms McDonald's work made the Committee's task much easier. The Committee is grateful for Ms McDonald's willing and friendly assistance.

I wish to thank all the members for the Scrutiny of Acts and Regulations Committee from the 52nd Parliament for their work and acknowledge their effort. Similarly, I wish to thank all the members of the current Scrutiny of Acts and Regulations Committee. Under the careful guidance of Mr Peter Katsambanis MLC, the Chairman of the Evidence Subcommittee, they have attended frequent and lengthy meetings. They have tackled difficult issues with enthusiasm and equanimity. Thank you also to Ms Helen Mason, Senior Legal Adviser to the Committee for her constant redrafting and editing. Thank you to Ms Dominique Saunders, Research Officer who also assisted when required with the Reference. Finally thank you to Mr Stephen Robertson and Mr Richard Kings who cheerfully undertook all the administrative tasks.

I commend the Report on the Review of the Evidence Act 1958 (Vic) to the Parliament of Victoria.

Mr Peter Ryan MLA
Chairman

Recommendations 1-30
Review of the Evidence Act 1958 (Vic)

RECOMMENDATION 1

The Committee recommends that subject to the following recommendations, the Evidence Act 1995 (Cth) be adopted as a model for uniform legislation in Victoria. It notes however that for constitutional and other reasons certain provisions in that Act are not necessarily appropriate for State legislation. Wherever possible, the Evidence Act 1995 (NSW) should be followed. In the interests of uniformity, the numbering of provisions in the legislation should mirror the Commonwealth and New South Wales legislation, even though some sections might be omitted.

RECOMMENDATION 2

The Committee recommends that section 8 of the Evidence Act 1995 (NSW) be enacted in Victoria. Such a provision will preserve the operation of any other legislation. Whilst the question of the repeal and preservation of existing legislation is ultimately a matter for Chief Parliamentary Counsel, the Committee recommends that the following provisions from the Evidence Act 1958 (Vic) and the Crimes Act 1958 (Vic) be retained and moved to another Act where appropriate: -

(a) Part 1, Divisions 1, 1A, 1B and 1C ("Evidence on Commission") of the Evidence Act 1958 (Vic);
(b) Part 1, Division 5 ("Royal Commissions") of the Evidence Act 1958 (Vic);
(c) The remaining provisions of Part 1 ("The Means of Obtaining Evidence") of the Evidence Act 1958 (Vic);
(d) Section 32A ("Documents relating solely to party's case" ) of the Evidence Act 1958 (Vic);
(e) Section 37A ("Special rules of evidence in relation to certain offences which relate to rape") of the Evidence Act 1958 (Vic);
(f) Section 37B ("Use of recorded evidence-in-chief in certain proceedings") of the Evidence Act 1958 (Vic);
(g) Section 37C ("Alternative arrangments for giving evidence in certain proceedings") of the Evidence Act 1958 (Vic);
(h) Section 37D ("Video link evidence from overseas in certain proceedings") of the Evidence Act 1958 (Vic);
(i) Section 41 ("Prohibited questions not to be published") of the Evidence Act 1958 (Vic);
(j) Part 3, Division 5 ("Further provisions relating to Victorian documents") of the Evidence Act 1958 (Vic);
(k) Part 3, Division 5A ("Scientific Experiments") of the Evidence Act 1958 (Vic);
(l) Part 4 ("Oaths, affirmations, affidavits and declarations" ) of the Evidence Act 1958 (Vic);
(m) Part 5 ("Attestations, verifications, acknowledgments, notarial acts etc.") of the Evidence Act 1958 (Vic);
(n) Part 6 ("Recording of evidence") of the Evidence Act 1958 (Vic);
(o) Part 7 ("Offences, perjury, forgery, false certificates etc.") of the Evidence Act 1958 (Vic);
(p) Part 8 ("Miscellaneous") and in particular section 149A ("Admissions of fact in criminal proceedings") of the Evidence Act 1958;
(q) Section 91 ("Conclusiveness of convictions etc. for the purposes of defamation proceedings") of the Evidence Act 1958 (Vic);
(r) Section 61 ("Jury warnings") of the Crimes Act 1958 (Vic);
(s) Section 464H ("Tape-recording of confessions and admissions") of the Crimes Act 1958 (Vic);

RECOMMENDATION 3

The Committee recommends that subject to Recommendation 2, the Evidence Act 1958 (Vic) be repealed.

RECOMMENDATION 4

The Committee recommends the repeal of Sections 399 ("The accused, husbands and wives as witnesses for the defence; evidence of character of the accused") and 400 ("Wife or husband etc. of the accused to be competent and compellable witnesses") of the Crimes Act 1958 (Vic).

RECOMMENDATION 5

The Committee recommends that those sections of the Evidence Act 1995 (Cth) which relate to matters of proof and admissibility of reproduced documents be adopted as a model for uniform legislation in Victoria.

RECOMMENDATION 6

The Committee recommends that section 18 ("Compellability of spouses and others in criminal proceedings generally") of the Evidence Act 1995 (Cth) be adopted in its present form. It further recommends that the broader policy issues outlined in the Report be considered as part of the ongoing process of reforming the uniform legislation.

RECOMMENDATION 7

The Committee recommends that section 19 ("Compellability of spouses and others in certain criminal proceedings") of the Evidence Act 1995 (Cth) be adopted but redrafted to specifically include the offences outlined in the Report, namely:-

• offences under Part 1 Division 1 ("Offences against the Person") of the Crimes Act 1958 (Vic), being an offence against a person under the age of 18;
• offences under Part 1 Division 1 ("Offences against the Person") of the Crimes Act 1958 (Vic), being a domestic violence offence;
• offences under Part 1 Division 10 ("Conspiracy)", Division 11 ("Incitement") or Division 12 ("Attempt") of the Crimes Act 1958 (Vic), where the conspiracy, incitement or attempt relates to an offence falling within either of the above categories;
• offences under Part 111 Division 9 ("Employment of Children") of the Community Services Act 1970 (Vic);
• sections 261 ("Offence to fail to protect child from harm") and 262 ("Offence to leave child unattended") of the Children and Young Persons Act 1989 (Vic).

RECOMMENDATION 8

The Committee recommends that section 20 ("Comment on failure to give evidence") of the Evidence Act 1995 (Cth) be adopted. It further recommends that if any problems emerge, they be considered as part of the ongoing process of reforming the uniform legislation.

RECOMMENDATION 9

The Committee recommends that section 25 ("Rights to make unsworn statements unaffected") of the Evidence Act 1958 be omitted from a Victorian version of the Act.

RECOMMENDATION 10

The Committee recommends that section 30 ("Interpreters") of the Evidence Act 1995 (Cth) be adopted.

RECOMMENDATION 11

The Committee recommends that section 46 ("Leave to recall witnesses") of the Evidence Act 1995 (Cth) be adopted.

RECOMMENDATION 12

The Committee recommends that section 53 ("Views") of the Evidence Act 1995 (Cth) be adopted.

RECOMMENDATION 13

The Committee recommends that Part 3.2 ("Hearsay") of the Evidence Act 1995 (Cth) be adopted.

RECOMMENDATION 14

The Committee recommends that section 61 ("Exception to the hearsay rule dependent on competency") of the Evidence Act 1995 (Cth) be adopted.

RECOMMENDATION 15

The Committee recommends that Part 3.3 ("Opinion") of the Evidence Act 1995 (Cth) be adopted.

RECOMMENDATION 16

The Committee recommends that section 89 ("Evidence of silence") of the Evidence Act 1995 (Cth) be adopted. It further recommends that if any problems emerge, they be considered as part of the ongoing process of reforming the uniform legislation.

RECOMMENDATION 17

The Committee recommends that Part 3.6 ("Tendency and Coincidence") of the Evidence Act 1995 (Cth) be adopted.

RECOMMENDATION 18

The Committee recommends that section 104 ("Further protections: cross-examination of accused") of the Evidence Act 1995 (Cth) be adopted. It further recommends that if any problems emerge, they be considered as part of the ongoing process of reforming the uniform legislation.

RECOMMENDATION 19

The Committee recommends the adoption of Part 3.7 ("Credibility") of the Evidence Act 1995 (Cth) subject to the omission of section 105 ("Further protections: defendants making unsworn statements") and the making of any necessary consequential amendment.

RECOMMENDATION 20

The Committee recommends the adoption of Part 3.8 ("Character") of the Evidence Act 1995 (Cth).

RECOMMENDATION 21

The Committee recommends the adoption of Part 3.9 ("Identification evidence") of the Evidence Act 1995 (Cth).

RECOMMENDATION 22

The Committee recommends the adoption of Part 3.10 ("Privileges") of the Evidence Act 1995 (Cth). The Committee specifically endorses the adoption of the dominant purpose test. It further recommends that if any problems emerge, they be considered as part of the ongoing process of reforming the uniform legislation.

RECOMMENDATION 23

The Committee recommends the abolition of medical privilege. The Committee further recommends the adoption of the proposals contained in the New South Wales Discussion Paper "Protecting Confidential Communications from Disclosure in Court Proceedings" dated June 1996, outlined in Chapter 3.

RECOMMENDATION 24

The Committee recommends the adoption of section 128 ("Privilege in respect of self-incrimination in other proceedings") of the Evidence Act 1995 (Cth).

RECOMMENDATION 25

The Committee recommends the adoption of sections 135 ("General discretion to include evidence"), 136 ("General discretion to limit the use of evidence"), 137 ("Exclusion of prejudicial evidence in criminal proceedings") and 138 ("Discretion to exclude improperly or illegally obtained evidence") of the Evidence Act 1995 (Cth).

RECOMMENDATION 26

The Committee recommends that section 139 ("Cautioning of persons") of the Evidence Act 1995 (Cth) be omitted from a Victorian version of the Act. Alternately, the Committee recommends that it be replaced with a section which specifies that failure to caution in accordance with the requirements of section 464A(3) of the Crimes Act 1958 (Vic) will result in any statement made being held to have been improperly obtained for the purposes of section 138.

RECOMMENDATION 27

The Committee recommends the adoption of Part 4.3 ("Facilitation of proof") of the Evidence Act 1995 (Cth). It further recommends that if any problems emerge, they be considered as part of the ongoing process of reforming the uniform legislation.

RECOMMENDATION 28

The Committee recommends the adoption of Part 4.4 ("Corroboration") of the Evidence Act 1995 (Cth).

RECOMMENDATION 29

The Committee recommends the adoption of section 184 ("Accused may admit matters and give consents") of the Evidence Act 1995 (Cth).

RECOMMENDATION 30

The Committee recommends the adoption of section 189 ("The voir dire") of the Evidence Act 1995 (Cth).

Recommendations 31-45
Review of the Role and Appointment of Public Notaries

RECOMMENDATION 31

The Committee recommends that legislation dealing with the appointment, qualifications and disciplinary procedures of notaries be enacted. Such legislation should include:-

(a) Only qualified Barristers and Solicitors of not less than five years standing from the date of admission to practise in any Australian jurisdiction to be eligible for appointment;
(b) Applicants to be of good fame and character;
(c) A requirement to show public benefit before appointment can be made;
(d) Appointments to be made by the Supreme Court of Victoria;
(e) Applicants be required to undergo an approved course of training;
(f) Other matters to include:-

• Existing notaries deemed to have been appointed under the new Act;
• Savings for prior notarial acts performed before the commencement of the new Act;
• Establish a register of notaries - existing notaries to seek registration within a set time;
• Provisions relating to offences, disciplinary procedures and the removal of a notary's name from the roll to be modelled on the NSW Act.

RECOMMENDATION 32

The Committee recommends that new Supreme Court Rules providing for appointment, disciplinary procedures and fees be made in relation to notaries.

RECOMMENDATION 33

The Committee recommends that the appointment of public notaries be considered for a national scheme of legislation. The criteria for appointment in States which have enacted legislation are very similar. The functions and powers of notaries are substantially the same across jurisdictions. The Committee considers that model legislation would provide certainty and convenience to notaries and members of the public.

RECOMMENDATION 34

The Committee recommends that appointment of notaries be made on application to the Supreme Court and that the Society of Notaries have standing to present matters to the court as an interested party.

RECOMMENDATION 35

The Committee recommends that the proposed notaries legislation incorporate a requirement that applicants undertake an approved course of study. The approved course, including the method of assessment is to be determined by the Supreme Court.

RECOMMENDATION 36

The Committee recommends that subject to the following recommendations the provisions of Part IV ("Oaths, Affirmations, Affidavits, Declarations") and V ("Attestations, Verifications, Acknowledgdments, Notarial Acts etc.") of the Evidence Act 1958 be preserved and enacted in a new Oaths Act.

RECOMMENDATION 37

The Committee recommends that the present provisions of the Evidence Act 1958 dealing with the role and responsibilities of witnesses be retained and enacted in a new Oaths Act.

RECOMMENDATION 38

The Committee recommends that subject to recommendations 44 and 45, section 107A of the Evidence Act 1958 be enacted in its present form in a new Oaths Act.

RECOMMENDATION 39

The Committee recommends that provision be made in a new Oaths Act to protect statutory declarations in a similar manner to the provisions of section 100 of the Evidence Act dealing with oaths and affirmations.

RECOMMENDATION 40

The Committee recommends that the Department of Justice prepare guidance notes for the witnessing of statutory declarations and provide copies to relevant professional associations and urge those associations to bring such notes to the attention of their members.

RECOMMENDATION 41

The Committee recommends the guidance notes referred to in recommendation 40 include specific instructions to witnesses of statutory declarations to refer matters to the police where there is evidence of perjury.

RECOMMENDATION 42

The Committee recommends that a new Oaths Act include a provision to prohibit the charging of a fee for statutory declarations as is presently provided for in relation to affidavits under section 123C(5) of the Evidence Act 1958.

RECOMMENDATION 43

The Committee recommends that a new Oaths Act include a provision which provides that any persons authorised under Commonwealth law to witness statutory declarations, be authorised to witness statutory declarations under Victorian law for Victorian purposes.

RECOMMENDATION 44

The Committee recommends that a new Oaths Act include provisions so that:-

1) estate agents licensed by the Estate Agents Licensing Authority are authorised to witness statutory declarations;
(2) electorate officers employed by the House Committee of the Parliament of Victoria are authorised to witness statutory declarations whilst so employed;
(3) the reference to the "Patents Act 1952" be amended to the "Patents Act 1990".

RECOMMENDATION 45

The Committee recommends that a new Oaths Act provide for Justices of the Peace and Bail Justices who have been issued with a registration number from the Department of Justice to be able insert that number instead of their address when witnessing affidavits and statutory declarations.

Last update 22/8/99 ©Parliament of Victoria