Part 7Transitional provision for Jury Directions and Other Acts Amendment Act 2017

Part 7—Transitional provision for Jury Directions and Other Acts Amendment Act 2017 Sch. 2 cl. 24 inserted by No. 37/2017 s. 18. 24 Application of section 66 as amended Section 66 as amended by section 17 of the **Jury Directions and Other Acts Amendment Act 2017** applies to— (a) a trial that commences (within the meaning of section 210 of the **Criminal Procedure Act 2009**) on or after the day on which section 17 of the **Jury Directions and Other Acts Amendment Act 2017** comes into operation; and (b) a summary hearing held on or after the day on which section 17 of the **Jury Directions and Other Acts Amendment Act 2017** comes into operation if no evidence has been given in that hearing before that day. Dictionary Part 1—Definitions ACT court The Commonwealth Act includes a definition of this term. Dictionary Pt 1 def. of *admission* amended by No. 52/2012 s. 7. admission means a previous representation that is— (a) made by a person who is or becomes a party to a proceeding (including an accused in a criminal proceeding); and (b) adverse to the person's interest in the outcome of the proceeding; asserted fact is defined in section 59; Dictionary Pt 1 def. of *associated defendant* amended as *associated accused* by No. 68/2009 s. 97(Sch. item 55.47(a)), amended by No. 68/2009 s. 97(Sch. item 55.47(b)(c)). ***associated accused***, in relation to an accused in a criminal proceeding, means a person against whom a prosecution has been instituted, but not yet completed or terminated, for— (a) an offence that arose in relation to the same events as those in relation to which the offence for which the accused is being prosecuted arose; or (b) an offence that relates to or is connected with the offence for which the accused is being prosecuted; Australia includes the external Territories; Australian court means— (a) the High Court; or (b) a court exercising federal jurisdiction; or (c) a court of a State or Territory; or (d) a judge, justice or arbitrator under an Australian law; or (e) a person or body authorised by an Australian law, or by consent of parties, to hear, receive and examine evidence; or (f) a person or body that, in exercising a function under an Australian law, is required to apply the laws of evidence; Australian law means a law of the Commonwealth, a State or a Territory; See clause 9 of Part 2 of this Dictionary for the meaning of ***law***. **Dictionary Pt 1 def. of Australian lawyer repealed by No. 17/2014 s. 160(Sch. 2 item 39.7(a)).** **Dictionary Pt 1 def. of** *Australian legal practitioner* **repealed by No. 17/2014 s. 160(Sch. 2 item 39.7(a)).** Australian or overseas proceeding means a proceeding (however described) in an Australian court or a foreign court; Australian Parliament means the Parliament, the Parliament of the Commonwealth or another State or the Legislative Assembly of a Territory; **Dictionary Pt 1 def. of** *Australian practising certificate* **repealed by No. 17/2014 s. 160(Sch. 2 item 39.7(a)).** **Dictionary Pt 1 def. of Australian-registered foreign lawyer** **amended by No. 17/2014 s. 160(Sch. 2 item 39.7(c)).** Australian-registered foreign lawyer has the meaning it has in the Legal Profession Uniform Law (Victoria); Australian Statistician means the Australian Statistician referred to in section 5(2) of the Australian Bureau of Statistics Act 1975 of the Commonwealth, and includes any person to whom the powers of the Australian Statistician under section 12 of the Census and Statistics Act 1905 of the Commonwealth have been delegated; business is defined in clause 1 of Part 2 of this Dictionary; case of a party means the facts in issue in respect of which the party bears the legal burden of proof; child means a child of any age and includes the meaning given in clause 10(1) of Part 2 of this Dictionary; civil penalty is defined in clause 3 of Part 2 of this Dictionary; civil proceeding means a proceeding other than a criminal proceeding; client is defined in section 117; coincidence evidence means evidence of a kind referred to in section 98(1) that a party seeks to have adduced for the purpose referred to in that subsection; coincidence rule means section 98(1); Commonwealth owned body corporate means a body corporate that, were the Commonwealth a body corporate, would, for the purposes of the Corporations Act 2001 of the Commonwealth, be— (a) a wholly-owned subsidiary of the Commonwealth; or (b) a wholly-owned subsidiary of another body corporate that is, under this definition, a Commonwealth owned body corporate because of the application of paragraph (a) (including the application of that paragraph together with another application or other applications of this paragraph); Commonwealth record means a record made by— (a) a Department within the meaning of the Public Service Act 1999 of the Commonwealth; or (b) the Parliament, a House of the Parliament, a committee of a House of the Parliament or a committee of the Parliament; or (c) a person or body, other than a Legislative Assembly, holding office, or exercising power, under or because of the Commonwealth Constitution or a law of the Commonwealth; or (d) a body or organisation other than a Legislative Assembly, whether incorporated or unincorporated, established for a public purpose— (i) by or under a law of the Commonwealth or of a Territory (other than the Australian Capital Territory, the Northern Territory or Norfolk Island); or (ii) by the Governor-General; or (iii) by a Minister of the Commonwealth; or (e) any other body or organisation that is a Commonwealth owned body corporate— and kept or maintained by a person, body or organisation of a kind referred to in paragraph (a), (b), (c), (d) or (e), but does not include a record made by a person or body holding office, or exercising power, under or because of the Commonwealth Constitution or a law of the Commonwealth if the record was not made in connection with holding the office concerned, or exercising the power concerned; confidential communication is defined in section 117; confidential document is defined in section 117; court means Victorian court; 1 Victorian court is defined in this Dictionary. 2 The Commonwealth Act does not include this definition. credibility of a person who has made a representation that has been admitted in evidence means the credibility of the representation, and includes the person's ability to observe or remember facts and events about which the person made the representation; credibility of a witness means the credibility of any part or all of the evidence of the witness, and includes the witness's ability to observe or remember facts and events about which the witness has given, is giving or is to give evidence; credibility evidence is defined in section 101A; credibility rule means section 102; criminal proceeding means a prosecution for an offence and includes— (a) a proceeding for the committal of a person for trial or sentence for an offence; and (b) a proceeding relating to bail— but does not include a prosecution for an offence that is a prescribed taxation offence within the meaning of Part III of the Taxation Administration Act 1953 of the Commonwealth; cross-examination is defined in clause 2(2) of Part 2 of this Dictionary; cross-examiner means a party who is cross-examining a witness; de facto partner is defined in clause 11 of Part 2 of this Dictionary; document means any record of information, and includes— (a) anything on which there is writing; or (b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; or (c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else; or (d) a map, plan, drawing or photograph; See also clause 8 of Part 2 of this Dictionary on the meaning of ***document***. electronic communication has the same meaning as it has in the **Electronic Transactions (Victoria) Act 2000**; examination in chief is defined in clause 2(1) of Part 2 of this Dictionary; exercise of a function includes performance of a duty; fax, in relation to a document, means a copy of the document that has been reproduced by facsimile telegraphy; federal court The Commonwealth Act includes a definition of this term. foreign court means any court (including any person or body authorised to take or receive evidence, whether on behalf of a court or otherwise and whether or not the person or body is empowered to require the answering of questions or the production of documents) of a foreign country or a part of such a country; **Dictionary Pt 1 def. of** *foreign lawyer* **inserted by No. 17/2014 s. 160(Sch. 2 item 39.7(d)).** ***foreign lawyer*** has the same meaning as it has in the Legal Profession Uniform Law (Victoria); function includes power, authority or duty; government or official gazette includes the Government Gazette; The definition of this term in the Commonwealth Act and New South Wales Act differs from this definition. Governor of a State includes any person for the time being administering the Government of the State; Governor-General means Governor-General of the Commonwealth and includes any person for the time being administering the Government of the Commonwealth; The Commonwealth Act does not include definitions of Governor of a State and Governor-General. These definitions are covered by sections 16A and 16B of the Acts Interpretation Act 1901 of the Commonwealth. hearsay rule means section 59(1); Dictionary Pt 1 def. of **identification evidence** amended by No. 68/2009 s. 97(Sch. item 55.48). identification evidence means evidence that is— (a) an assertion by a person to the effect that an accused was, or resembles (visually, aurally or otherwise) a person who was, present at or near a place where— (i) the offence for which the accused is being prosecuted was committed; or (ii) an act connected to that offence was done— at or about the time at which the offence was committed or the act was done, being an assertion that is based wholly or partly on what the person making the assertion saw, heard or otherwise perceived at that place and time; or (b) a report (whether oral or in writing) of such an assertion; investigating official means— (a) a police officer (other than a police officer who is engaged in covert investigations under the orders of a superior); or (b) a person appointed by or under an Australian law (other than a person who is engaged in covert investigations under the orders of a superior) whose functions include functions in respect of the prevention or investigation of offences; joint sitting means— (a) in relation to the Parliament of the Commonwealth—a joint sitting of the members of the Senate and of the House of Representatives convened by the Governor-General under section 57 of the Commonwealth Constitution or convened under any Act of the Commonwealth; or (b) in relation to a bicameral legislature of a State—a joint sitting of both Houses of the legislature convened under a law of the State; judge, in relation to a proceeding, means the judge, magistrate or other person before whom the proceeding is being held; law is defined in clause 9 of Part 2 of this Dictionary; leading question means a question asked of a witness that— (a) directly or indirectly suggests a particular answer to the question; or (b) assumes the existence of a fact the existence of which is in dispute in the proceeding and as to the existence of which the witness has not given evidence before the question is asked; **Dictionary Pt 1 def. of legal counsel repealed by No. 17/2014 s. 160(Sch. 2 item 39.7(b)).** Legislative Assembly means any present or former Legislative Assembly of a Territory, and includes the Australian Capital Territory House of Assembly; member of the Australian Federal Police includes a special member or a staff member of the Australian Federal Police; **Dictionary Pt 1 def. of** *non-participant registered foreign lawyer* **inserted by No. 17/2014 s. 160(Sch. 2 item 39.7(d)).** ***non-participant registered foreign lawyer*** has the same meaning as it has in Schedule 3 to the Legal Profession Uniform Law (Victoria); ***NSW court*** The New South Wales Act includes this definition. offence means an offence against or arising under an Australian law; opinion rule means section 76; **Dictionary Pt 1 def. of overseas- registered foreign lawyer repealed by No. 17/2014 s. 160(Sch. 2 item 39.7(a)).** parent includes the meaning given in clause 10(2) of Part 2 of this Dictionary; picture identification evidence is defined in section 115; police officer means— (a) a member of the Australian Federal Police; or (b) a member of the police force of a State or Territory; postal article has the same meaning as in the Australian Postal Corporation Act 1989 of the Commonwealth; previous representation means a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced; prior consistent statement of a witness means a previous representation that is consistent with evidence given by the witness; prior inconsistent statement of a witness means a previous representation that is inconsistent with evidence given by the witness; probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue; prosecutor means a person who institutes or is responsible for the conduct of a prosecution; public document means a document that— (a) forms part of the records of the Crown in any of its capacities; or (b) forms part of the records of the government of a foreign country; or (c) forms part of the records of a person or body holding office or exercising a function under or because of the Commonwealth Constitution, an Australian law or a law of a foreign country; or (d) is being kept by or on behalf of the Crown, such a government or such a person or body— and includes the records of the proceedings of, and papers presented to— (e) an Australian Parliament, a House of an Australian Parliament, a committee of such a House or a committee of an Australian Parliament; and (f) a legislature of a foreign country, including a House or committee (however described) of such a legislature; re-examination is defined in clause 2(3) and (4) of Part 2 of this Dictionary; representation includes— (a) an express or implied representation (whether oral or in writing); or (b) a representation to be inferred from conduct; or (c) a representation not intended by its maker to be communicated to or seen by another person; or (d) a representation that for any reason is not communicated; seal includes a stamp; tendency evidence means evidence of a kind referred to in section 97(1) that a party seeks to have adduced for the purpose referred to in that subsection; tendency rule means section 97(1); traditional laws and customs of an Aboriginal or Torres Strait Islander group (including a kinship group) includes any of the traditions, customary laws, customs, observances, practices, knowledge and beliefs of the group; Victorian court means— (a) the Supreme Court; or (b) any other court created by Parliament— and includes any person or body (other than a court) that, in exercising a function under the law of the State, is required to apply the laws of evidence; The Commonwealth Act and New South Wales Act do not include this definition. visual identification evidence is defined in section 114; witness includes the meaning given in clause 7 of Part 2 of this Dictionary. Part 2—Other expressions 1 References to businesses (1) A reference in this Act to a *business* includes a reference to the following— (a) a profession, calling, occupation, trade or undertaking; (b) an activity engaged in or carried on by the Crown in any of its capacities; (c) an activity engaged in or carried on by the government of a foreign country; (d) an activity engaged in or carried on by a person or body holding office or exercising power under or because of the Commonwealth Constitution, an Australian law or a law of a foreign country, being an activity engaged in or carried on in the performance of the functions of the office or in the exercise of the power (otherwise than in a private capacity); (e) the proceedings of an Australian Parliament, a House of an Australian Parliament, a committee of such a House or a committee of an Australian Parliament; (f) the proceedings of a legislature of a foreign country, including a House or committee (however described) of such a legislature. (2) A reference in this Act to a business also includes a reference to— (a) a business that is not engaged in or carried on for profit; or (b) a business engaged in or carried on outside Australia. 2 References to examination in chief, cross-examination and re‑examination (1) A reference in this Act to *examination in chief* of a witness is a reference to the questioning of a witness by the party who called the witness to give evidence, not being questioning that is re‑examination. (2) A reference in this Act to *cross-examination* of a witness is a reference to the questioning of a witness by a party other than the party who called the witness to give evidence. (3) A reference in this Act to *re-examination* of a witness is a reference to the questioning of a witness by the party who called the witness to give evidence, being questioning (other than further examination in chief with the leave of the court) conducted after the cross-examination of the witness by another party. (4) If a party has recalled a witness who has already given evidence, a reference in this Act to re-examination of a witness does not include a reference to the questioning of the witness by that party before the witness is questioned by another party. 3 References to civil penalties For the purposes of this Act, a person is taken to be liable to a civil penalty if, in an Australian or overseas proceeding (other than a criminal proceeding), the person would be liable to a penalty arising under an Australian law or a law of a foreign country. 4 Unavailability of persons Dictionary Pt 2 cl. 4(1) amended by No. 69/2009 s. 52, substituted by No. 52/2012 s. 8. (1) For the purposes of this Act, a person is taken not to be available to give evidence about a fact if— (a) the person is dead; or (b) the person is, for any reason other than the application of section 16 (Competence and compellability—judges and jurors), not competent to give the evidence; or (c) the person is mentally or physically unable to give the evidence and it is not reasonably practicable to overcome that inability; or (d) it would be unlawful for the person to give the evidence; or (e) a provision of this Act prohibits the evidence being given; or (f) all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or secure his or her attendance, but without success; or (g) all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success. (2) In all other cases the person is taken to be available to give evidence about the fact. 5 Unavailability of documents and things For the purposes of this Act, a document or thing is taken not to be available to a party if and only if— (a) it cannot be found after reasonable inquiry and search by the party; or (b) it was destroyed by the party, or by a person on behalf of the party, otherwise than in bad faith, or was destroyed by another person; or (c) it would be impractical to produce the document or thing during the course of the proceeding; or (d) production of the document or thing during the course of the proceeding could render a person liable to conviction for an offence; or (e) it is not in the possession or under the control of the party and— (i) it cannot be obtained by any judicial procedure of the court; or (ii) it is in the possession or under the control of another party to the proceeding concerned who knows or might reasonably be expected to know that evidence of the contents of the document, or evidence of the thing, is likely to be relevant in the proceeding; or (iii) it was in the possession or under the control of such a party at a time when that party knew or might reasonably be expected to have known that such evidence was likely to be relevant in the proceeding. 6 Representations in documents For the purposes of this Act, a representation contained in a document is taken to have been made by a person if— (a) the document was written, made or otherwise produced by the person; or (b) the representation was recognised by the person as his or her representation by signing, initialling or otherwise marking the document. 7 Witnesses (1) A reference in this Act to a witness includes a reference to a party giving evidence. (2) A reference in this Act to a witness who has been called by a party to give evidence includes a reference to the party giving evidence. Dictionary Pt 2 cl. 7(3) amended by No. 68/2009 s. 97(Sch. item 55.49). (3) A reference in this clause to a party includes an accused in a criminal proceeding. 8 References to documents A reference in this Act to a document includes a reference to— (a) any part of the document; or (b) any copy, reproduction or duplicate of the document or of any part of the document; or (c) any part of such a copy, reproduction or duplicate.