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

Chapter Five - Miscellaneous

As its title indicates, this Chapter contains a miscellaneous set of provisions, few of which attracted any attention in the submissions to the Committee.

Section 184

In civil proceedings a party may make a formal admission of fact which relieves their opponent of the need to prove that fact by evidence. Section 184 allows a defendant in a criminal proceeding to do the same, provided that he or she has been `advised to do so by his or her lawyer'. While approving of the principle behind this provision, the Victoria Police submitted that an unrepresented defendant also ought be allowed to make an admission of fact.[221] In the Committee's view, however, the court can not be satisfied that a defendant appreciates the full significance of an admission of fact unless the defendant has received legal advice about the admission. Allowing an unrepresented defendant to make an admission of fact might, therefore, place the trial judge in the awkward position of essentially having to provide that advice him or herself. Accordingly, the Committee supports the adoption of this section in its present form.

RECOMMENDATION 29

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

Section 186

This provision is found in the Evidence Act 1995 (Cth). It is not found in the Evidence Act 1995 (NSW). The Committee's view is that the question of the taking of affidavits is best dealt with separately in an Oaths Act, as has been done in New South Wales.

Section 189

This section deals with voir dires, the `trial within a trial' at which, among other things, the admissibility of evidence is determined by the judge. Judges Mullaly and Kelly commented that s 189(3) appears to have "the effect that the issue of whether an admission is true can be raised on a voir dire", a departure from the common law which they thought "ought not to be countenanced".[222] What sub-section (3) actually states, however, is that:-

"In the hearing of a preliminary question about whether a defendant's admission should be admitted into evidence (whether in the exercise of a discretion or not) in a criminal proceeding, the issue of the admission's truth or untruth is to be disregarded unless the issue is introduced by the defendant".[223]

The general rule created by sub-section (3) is, thus, in line with the current position at common law as supported by their Honours; namely, that the issue of the admission's truth is to be disregarded. Attention can only be paid to the issue if it is first raised by the defendant. This event is likely to be rare given the substantial disadvantages to the defendant of opening up the issue of an admission's truth. The words `unless the issue is introduced by the defendant' could, of course, be omitted from the section. The Committee, however, takes the view that the section be adopted unamended to allow for the rare case where the defence might wish to raise the issue of an admission's truth on the voir dire into its admissibility.

RECOMMENDATION 30

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

Last update 19/8/99 ©Parliament of Victoria