Evidence (Miscellaneous Provisions) Act 1958

Courts and judicial officers. The Act is primarily directed at the courts, vesting powers in judicial officers to make directions for audiovisual appearances, to examine witnesses abroad, and to make rulings on document unavailability.

Accused persons in criminal proceedings. Part IIA directly affects accused persons' rights and obligations in relation to appearing by audiovisual link rather than physically.

Parties to civil proceedings. The document unavailability provisions and the examination of witnesses abroad provisions affect civil litigants who need evidence from distant witnesses.

Mediators and dispute settlement centres. Section 21M imposes confidentiality obligations on mediators working within recognised dispute settlement centres.

Deponents of affidavits. The affidavit provisions and the offence in section 126B affect persons who swear or affirm affidavits for use in Victorian proceedings.

Mediation confidentiality. Section 21M prohibits mediators and dispute settlement centre employees from communicating or publishing anything said at a mediation conference or any document prepared for it, except with consent.

Technical requirements for audiovisual links. Sections 42R and 42RB impose technical requirements for audiovisual and audio link appearances by accused persons. A hearing is not invalid for failure to comply with the technical requirements if the failure did not substantially prejudice the accused (section 42Y).

Protection of accused-lawyer communications. Section 42S requires arrangements that protect communications between an accused appearing by audiovisual link and their legal representative from being received by others.

Directions for audiovisual appearance. The court may make directions for an accused to appear by audiovisual link under sections 42M (general courts), 42MAA, and 42MA (other proceedings). Applications for these directions are made under section 42N. The court must have regard to specified matters in deciding whether to make a direction for physical or audiovisual appearance.

Physical appearance direction. Section 42L allows the court to direct physical appearance instead of audiovisual appearance where it is in the interests of justice to do so.

Document unavailability. The court may make a ruling or order under section 89B in relation to an unavailable document, having regard to the matters in section 89C.

Examination of witnesses abroad. The Supreme Court has power under Division 1A and 1C to give effect to letters rogatory and to take evidence for foreign and Australian courts, including directing persons to attend and give evidence (section 9N).

False documents and certificates. Part VII creates offences for making false documents or certificates in connection with proceedings. These are serious criminal offences.

Affidavit offence. Section 126B creates an offence for making a false or misleading statement as to the swearing or execution of an affidavit.

Failure to appear. Persons directed to appear as witnesses before the Supreme Court under Division 1C who fail to comply may be sanctioned under the powers given by section 9N.

Examination of witnesses abroad. Applications under Division 1A are made to the Supreme Court by summons or application, and the court has broad discretion as to the evidence it will admit and the procedures it will follow.

Audiovisual link directions. Applications for directions under Part IIA should be made before the hearing. The court may make the direction on its own motion or on application. Technical arrangements must comply with sections 42R and 42RB.

Document unavailability. Applications under Division 9 are made to the court hearing the proceeding. The court considers the matters in section 89C and may make a ruling or order to deal with the unavailability.

Evidence Act 2008 (Vic). The primary uniform evidence law in Victoria. The Evidence (Miscellaneous Provisions) Act 1958 supplements the Evidence Act 2008 and, in some provisions (see section 89F), is expressly stated to be in addition to it.

Surveillance Devices Act 1999 (Vic). Section 42T applies the Surveillance Devices Act 1999 to audiovisual link proceedings, addressing potential interception issues.

Evidence on Commission Act 1995 (NSW) (and equivalents). Division 1C of Part I works in conjunction with interstate equivalents in the Uniform Evidence law framework for taking evidence for interstate or foreign courts.

Wrongs Act 1958 (Vic). Referenced in the FCA 2017 597 case (470 St Kilda Road Pty Ltd v Robinson) alongside this Act, suggesting that affidavit or statutory declaration provisions under the Act arose in the context of a construction dispute involving Victorian law.

Part IIA applies only within Victoria. The audiovisual link regime in Part IIA governs appearances in Victorian courts. For interstate audiovisual links, a different procedure may apply under Part I (interstate examination provisions).

Mediation confidentiality under section 21L is consent-based. The inadmissibility is waivable: with the consent of all persons present at the conference, evidence of mediation communications may be admitted. In a multi-party mediation, this requires every participant's consent.

Technical non-compliance does not automatically invalidate the hearing. Section 42Y provides that failure to comply with technical requirements for audiovisual appearances does not invalidate the hearing if the failure did not substantially prejudice the accused. Parties should not assume they can object to a conviction simply because a technical requirement was not met.

Document unavailability regime is in addition to Evidence Act 2008. Section 89F confirms the Division 9 regime adds to, and does not limit, the provisions of the Evidence Act 2008.

Example 1: Accused appearing by audiovisual link. An accused person in remand at a Victorian prison is required to appear before the County Court. The County Court makes a direction under section 42K for the accused to appear by audiovisual link. The technical arrangements must comply with section 42R. Communications between the accused and their lawyer during the hearing must be protected from interception (section 42S).

Example 2: Taking evidence from a witness in a foreign jurisdiction. In a complex commercial proceeding in the Supreme Court of Victoria, a key witness is resident in Germany and unwilling to travel. Counsel applies to the Supreme Court under Division 1A for an order to have the witness's evidence taken on commission in Germany. The Supreme Court issues letters rogatory to the German court requesting assistance. The resulting deposition evidence is tendered at trial.

Example 3: Mediation confidentiality. In a commercial dispute, the parties attend a mediation before an accredited mediator working for a recognised dispute settlement centre. The mediation is unsuccessful. One party subsequently seeks to tender in court a document prepared for the mediation and statements made during it. The opposing party objects under section 21L. The evidence is inadmissible unless all persons present at the mediation consent.