6 Exceptions to hearsay rule—notice of intention to adduce evidence of previous representations 2
7 Address of person named in notice under regulation 6—criminal proceeding 4
8 The tendency rule and the coincidence rule—form of notices 5
9 Address of person named in notice under regulation 8—criminal proceeding 6
10 Privilege against self-incrimination—form of certificate 7
11 Privilege against self-incrimination—State and Territory provisions 7
12 Convictions, acquittals and other judicial proceedings—form of certificate 8
13 Fingerprint evidence of identity—affidavits by State or Territory police officers 8
14 Fingerprint evidence of identity—affidavits by Australian Federal Police officers 8
Schedule 1 9
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Endnotes 14
1 General information 14
2 Table of Amendments 16
3 Amendments Not in Operation 17
4 Explanatory details 18
Version No.001
Evidence Regulations 2019
S.R. No. 111/2019
Version as at
7 December 2019
1 Objective
The objective of these Regulations is to provide for forms and other matters relating to notices, certificates and affidavits under the Evidence Act 2008.
2 Authorising provision
These Regulations are made under section 197 of the Evidence Act 2008.
3 Commencement
These Regulations come into operation on 7 December 2019.
address includes a private, business or official address;
notice of previous representation means a notice given by a party under section 67(1) of the Act to each other party of that party's intention to adduce evidence of a previous representation;
notifying party, in relation to a notice, means the person giving the notice;
the Act means the Evidence Act 2008.
6 Exceptions to hearsay rule—notice of intention to adduce evidence of previous representations
(1) For the purposes of section 67(1) of the Act, a notice of previous representation must state—
(a) the substance of evidence of a previous representation that the notifying party intends to adduce; and
(b) the substance of all other relevant representations made by the person who made that previous representation, so far as they are known to the notifying party; and
(c) particulars of—
(i) the date, time and place at and the circumstances in which each of the representations referred to in paragraph (a) or (b) was made; and
(ii) the names of the persons by whom, and the persons to whom, each of those representations was made; and
(iii) in a civil proceeding, the address of each person named under subparagraph (ii), so far as the addresses of each person are known to the notifying party.
(2) If a notifying party intends to rely on—
(a) section 63(2)(a) or (b) of the Act; or
(b) section 65(2)(a), (b), (c) or (d) of the Act; or
(c) section 65(3)(a) or (b) of the Act; or
(d) section 65(8)(a) or (b) of the Act—
the party's notice of previous representation must state particulars of the facts on the basis of which it is alleged that the person who made a representation referred to in the notice is not available to testify concerning the fact to be proved by adducing evidence of that representation.
(3) If a notifying party intends to rely on section 64(2)(a) or (b) of the Act, the party's notice of previous representation must state particulars of the facts that the party will rely on to establish the grounds specified in section 64(2) of the Act.
(4) If a notice of previous representation refers to a previous representation that is in writing—
(a) a copy of the document, or of the relevant portion of the document, containing the representation must be attached to the notice; and
(b) the notice must identify the document unless the identity of the document is apparent on the face of the copy attached to the notice.
(5) If a copy of a document, or of a portion of a document, is attached to a notice of previous representation it is a sufficient compliance for the purposes of subregulation (1)(a) to specify the representation evidence which the notifying party intends to adduce—
(a) in the notice; or
(b) in the copy of a document or portion of a document attached to the notice.
7 Address of person named in notice under regulation 6—criminal proceeding
(1) On the application of a party in a criminal proceeding, the court may direct the notifying party to disclose the address of any person named in a notice of previous representation given under regulation 6 by whom, or to whom, a representation referred to in the notice was made if the court is satisfied that—
(a) the address is relevant to the offence charged; and
(b) one of the following applies—
(i) disclosure is not likely to present a reasonably ascertainable risk to the welfare or physical safety of any person; or
(ii) having regard to the matters referred to in subregulation (2), the interests of justice outweigh any risk referred to in subparagraph (i).
(2) For the purposes of subregulation (1)(b)(ii), the court must have regard to—
(a) the right to privacy of the witness; and
(b) the right of the accused to prepare properly for the trial.
Note
See section 14 of the Victims' Charter Act 2006 as to victims' privacy.
(3) A direction given under subregulation (1) is subject to such conditions (if any) as the court thinks fit.
8 The tendency rule and the coincidence rule—form of notices
(1) For the purposes of section 99 of the Act, a notice given under section 97(1)(a) of the Act (relating to the tendency rule) must state—
(a) the substance of the evidence that the notifying party intends to adduce; and
(b) if that evidence consists of, or includes, evidence of the conduct of a person, particulars of—
(i) the date, time and place at and the circumstances in which the conduct occurred; and
(ii) the name of each person who saw, heard or otherwise perceived the conduct; and
(iii) in a civil proceeding, the address of each person named under subparagraph (ii), so far as the addresses of each person are known to the notifying party.
(2) For the purposes of section 99 of the Act, a notice given under section 98(1)(a) of the Act (relating to the coincidence rule) must state—
(a) the substance of the evidence of the occurrence of 2 or more events that the party giving the notice intends to adduce; and
(b) particulars of—
(i) the date, time and place at and the circumstances in which each of those events occurred; and
(ii) the name of each person who saw, heard or otherwise perceived each of those events; and
(iii) in a civil proceeding, the address of each person named under subparagraph (ii), so far as the addresses of each person are known to the notifying party.
9 Address of person named in notice under regulation 8—criminal proceeding
(1) On the application of a party in a criminal proceeding, the court may direct the notifying party to disclose the address of any person named in a notice given under regulation 8 who saw, heard or otherwise perceived conduct or events referred to in the notice if the court is satisfied that—
(a) the address is relevant to the offence charged; and
(b) one of the following applies—
(i) disclosure is not likely to present a reasonably ascertainable risk to the welfare or physical safety of any person; or
(ii) having regard to the matters referred to in subregulation (2), the interests of justice outweigh any risk referred to in subparagraph (i).
(2) For the purposes of subregulation (1)(b)(ii), the court must have regard to—
(a) the right to privacy of the witness; and
(b) the right of the accused to prepare properly for the trial.
Note
See section 14 of the Victims' Charter Act 2006 as to victims' privacy.
(3) A direction given under subregulation (1) is subject to such conditions (if any) as the court thinks fit.
10 Privilege against self-incrimination—form of certificate
For the purposes of section 128 or 128A of the Act, a certificate may be in the form set out in Form 1 in Schedule 1.
11 Privilege against self-incrimination—State and Territory provisions
(1) For the purposes of section 128(12) of the Act, the following are prescribed State or Territory provisions—
(a) section 128 of the Evidence Act 2004 of the Territory of Norfolk Island;
(b) section 128 of the Evidence Act 2001 of Tasmania;
(c) section 47 of the Coroners Act 1996 of Western Australia;
(d) section 11 of the Evidence Act 1906 of Western Australia;
(e) section 128 of the Evidence Act 2011 of the Australian Capital Territory;
(f) section 128 of the Evidence Act 1995 of New South Wales;
(g) section 128 of the Evidence (National Uniform Legislation) Act 2011 of the Northern Territory.
(2) For the purposes of section 128A(11) of the Act, the following are prescribed State or Territory provisions—
(a) section 128A of the Evidence Act 2001 of Tasmania;
(b) section 128A of the Evidence Act 2011 of the Australian Capital Territory;
(c) section 128A of the Evidence Act 1995 of New South Wales;
(d) section 128A of the Evidence (National Uniform Legislation) Act 2011 of the Northern Territory.
12 Convictions, acquittals and other judicial proceedings—form of certificate
For the purposes of section 178 of the Act, a certificate may be in the form set out in Form 2 in Schedule 1.
13 Fingerprint evidence of identity—affidavits by State or Territory police officers
For the purposes of section 179(1)(a) of the Act, the prescribed form of affidavit is set out in Form 3 in Schedule 1.
14 Fingerprint evidence of identity—affidavits by Australian Federal Police officers
For the purposes of section 180(1)(a) of the Act, the prescribed form of affidavit is set out in Form 4 in Schedule 1.
Schedule 1
Form 1—Certificate under section 128 or 128A of the Evidence Act 2008
Regulation 10
[heading as in originating process]
CERTIFICATE UNDER SECTION 128 OR 128A OF THE EVIDENCE ACT 2008
This Court certifies under section *128/*128A of the Evidence Act 2008 that evidence in these proceedings by [state name of witness] on [state date or dates], a record of which is attached to this certificate, is *evidence/
*information to which section *128(7)/*128A(8) of that Act applies.
A transcript, or other record, of the evidence is to be attached to this certificate, and duly authenticated by the court or its proper officer.
Dated:
[Signature of Judge or magistrate]
*delete if inapplicable
Notes
Section 128(7) of the Evidence Act 2008 provides as follows:
"(7) In any proceeding in a Victorian court or before any person or body authorised by a law of this State, or by consent of parties, to hear, receive and examine evidence—
(a) evidence given by a person in respect of which a certificate under this section has been given; and
(b) evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence—
cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence.".
Section 128A(8) of the Evidence Act 2008 provides as follows:
"(8) In any proceeding in a Victorian court—
(a) evidence of information disclosed by a relevant person in respect of which a certificate has been given under this section; and
(b) evidence of any information, document or thing obtained as a direct result or indirect consequence of the relevant person having disclosed that information—
cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence concerned.".
Form 2—CERTIFICATE OF CONVICTIONS, ACQUITTALS AND OTHER JUDICIAL PROCEEDINGS
Regulation 12
CERTIFICATE OF CONVICTIONS, ACQUITTALS AND OTHER JUDICIAL PROCEEDINGS
Section 178 of the Evidence Act 2008
I, [full name] being
*a Judge of the Supreme Court;
*a Judge of the County Court;
a magistrate of the *Magistrates' Court/*Children's Court;
*the Prothonotary/*a Deputy Prothonotary of the Supreme Court;
*the Registrar/*a Deputy Registrar of the County Court;
a Registrar of the *Magistrates'/*Children's Court;
*a proper officer [specify title] of the [specify jurisdiction] Court of [specify State or Territory or, if outside Australia, country]
certify that, according to the records of the Court:
*1. [name of person] on [date] at [venue of Court] was *convicted/
*acquitted/*sentenced.
[Set out particulars of record, indictment, conviction, acquittal, sentence; set out time and place of conviction, acquittal or sentence.]
*2. [name of person] on [date] *is/*was a party to a proceeding before the Court.
[Set out particulars of proceeding, including names of other parties and nature of proceeding.]
*3. ON [date] at [venue of Court] the following order was made:
[Set out particulars of order, names of parties and nature of proceeding; set out time and place at which order was made.]
Dated:
[Signature of Judge/Magistrate/Prothonotary/Deputy Prothonotary/Registrar/Deputy Registrar/proper officer.]
*delete if inapplicable
Form 3—Affidavit of Member of State or Territory Police Force Concerning Fingerprints
Regulation 13
[heading as in originating process]
AFFIDAVIT OF MEMBER OF STATE OR TERRITORY POLICE FORCE CONCERNING FINGERPRINTS
I, [name of deponent] of [address of deponent], a member of the police force of [State or Territory] *swear (or promise) by Almighty God [or a god recognised by the person's religion]/*solemnly and sincerely declare and affirm that:
I am a fingerprint expert for the police force of [State or Territory].
I have examined the fingerprint card marked for identification with the letter "A".
I have compared the fingerprints shown on that card with the fingerprints shown on the fingerprint card in the records held by the police force of [State or Territory] showing the fingerprints of [name of person and alias, if any].
The fingerprints on those cards are identical.
According to the records of the police force of [State or Territory], which I believe to be accurate, [name of person] was convicted in that *State/*Territory of the following offences: [state offences].
Annexed to this affidavit and marked with the letters [insert an alphabetical sequence of letters, commencing at "B", corresponding to the number of annexures], are certified copies or certificates of conviction for each of those convictions.
From an examination of the records referred to above, I believe that the person referred to in each annexed certified copy or certificate as having been convicted of the offence stated in it is identical with the person whose fingerprints are shown on the fingerprint cards referred to in paragraph 3 of this affidavit.
*Sworn/*Affirmed, etc.
*delete if inapplicable
Form 4—Affidavit of Member of Australian Federal Police Concerning Fingerprints
Regulation 14
[heading as in originating process]
AFFIDAVIT OF MEMBER OF AUSTRALIAN FEDERAL POLICE CONCERNING FINGERPRINTS
I, [name of deponent] of [address of deponent], a *member/*special member/*staff member of the Australian Federal Police, *swear (or promise) by Almighty God [or a god recognised by the person's religion]/*solemnly and sincerely declare and affirm that:
I am a fingerprint expert for the Australian Federal Police.
I have examined the fingerprint card marked for identification with the letter "A".
I have compared the fingerprints shown on that card with the fingerprints shown on the fingerprint card in the records held by the Australian Federal Police showing the fingerprints of [name of person and alias, if any].
The fingerprints on those cards are identical.
According to the records of the Australian Federal Police, which I believe to be accurate, [name of person] was convicted of the following offences against a law of the Commonwealth: [state offences].
Annexed to this affidavit and marked with the letters [insert an alphabetical sequence of letters, commencing at "B", corresponding to the number of annexures], are certified copies or certificates of conviction for each of those convictions.
From an examination of the records referred to above, I believe that the person referred to in each annexed certified copy or certificate as having been convicted of the offence stated in it is identical with the person whose fingerprints are shown on the fingerprint cards referred to in paragraph 3 of this affidavit.
*Sworn/*Affirmed, etc.
*delete if inapplicable
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Endnotes
1 General information
See www.legislation.vic.gov.au for Victorian Bills, Acts and current Versions of legislation and up-to-date legislative information.
The Evidence Regulations 2019, S.R. No. 111/2019 were made on 26 November 2019 by the Governor in Council under section 197 of the Evidence Act 2008, No. 47/2008 and came into operation on 7 December 2019: regulation 3.
The Evidence Regulations 2019 will sunset 10 years after the day of making on 26 November 2029 (see section 5 of the Subordinate Legislation Act 1994).
INTERPRETATION OF LEGISLATION ACT 1984 (ILA)
Style changes
Section 54A of the ILA authorises the making of the style changes set out in Schedule 1 to that Act.
References to ILA s. 39B
Sidenotes which cite ILA s. 39B refer to section 39B of the ILA which provides that where an undivided regulation, rule or clause of a Schedule is amended by the insertion of one or more subregulations, subrules or subclauses the original regulation, rule or clause becomes subregulation, subrule or subclause (1) and is amended by the insertion of the expression "(1)" at the beginning of the original regulation, rule or clause.
Interpretation
As from 1 January 2001, amendments to section 36 of the ILA have the following effects:
• Headings
All headings included in a Statutory Rule which is made on or after
1 January 2001 form part of that Statutory Rule. Any heading inserted in a Statutory Rule which was made before 1 January 2001, by a Statutory Rule made on or after 1 January 2001, forms part of that Statutory Rule.
This includes headings to Parts, Divisions or Subdivisions in a Schedule; Orders; Parts into which an Order is divided; clauses; regulations; rules; items; tables; columns; examples; diagrams; notes or forms.
See section 36(1A)(2A)(2B).
• Examples, diagrams or notes
All examples, diagrams or notes included in a Statutory Rule which is made on or after 1 January 2001 form part of that Statutory Rule. Any examples, diagrams or notes inserted in a Statutory Rule which was made before 1 January 2001, by a Statutory Rule made on or after 1 January 2001, form part of that Statutory Rule. See section 36(3A).
• Punctuation
All punctuation included in a Statutory Rule which is made on or after
1 January 2001 forms part of that Statutory Rule. Any punctuation inserted in a Statutory Rule which was made before 1 January 2001, by a Statutory Rule made on or after 1 January 2001, forms part of that Statutory Rule.
See section 36(3B).
• Provision numbers
All provision numbers included in a Statutory Rule form part of that Statutory Rule, whether inserted in the Statutory Rule before, on or after
1 January 2001. Provision numbers include regulation numbers, rule numbers, subregulation numbers, subrule numbers, paragraphs and subparagraphs. See section 36(3C).
• Location of "legislative items"
A "legislative item" is a penalty, an example or a note. As from 13 October 2004, a legislative item relating to a provision of a Statutory Rule is taken to be at the foot of that provision even if it is preceded or followed by another legislative item that relates to that provision. For example, if a penalty at the foot of a provision is followed by a note, both of these legislative items will be regarded as being at the foot of that provision. See section 36B.
• Other material
Any explanatory memorandum, table of provisions, endnotes, index and other material printed after the Endnotes does not form part of a Statutory Rule. See section 36(3)(3D)(3E).
2 Table of Amendments
There are no amendments made to the Evidence Regulations 2019 by statutory rules, subordinate instruments and Acts.
3 Amendments Not in Operation
There are no amendments which were Not in Operation at the date of this publication.
4 Explanatory details
Reg. 4(a): S.R. No. 162/2009 as amended by S.R. Nos 149/2012 and 46/2013. ↑