EVIDENCE LAW IN THE NORTHERN TERRITORY FROM 1 JANUARY 2013

Transcription

1 EVIDENCE LAW IN THE NORTHERN TERRITORY FROM 1 JANUARY 2013 PART A QUESTIONS AND ANSWERS ABOUT THE EVIDENCE LAW OF THE NT Legal Policy Department of the Attorney-General and Justice 68 The Esplanade, DARWIN NT 0800 GPO Box 1722, DARWIN NT 0801 Telephone: (08) Facsimile: (08)

2 Contents 1. When do the new laws take effect? What comprises the evidence law of the NT? What is the main purpose of the Evidence (National Uniform Legislation) Act? 4 4. Are there any differences between the Evidence (National Uniform Legislation) Act and uniform evidence legislation adopted in other jurisdictions? Are wives, de facto partners, and girlfriends of defendants forced to give evidence under the Evidence (National Uniform Legislation) Act? When is someone taken to be unavailable to give evidence for the purposes of section 65 of the Evidence (National Uniform Legislation) Act? What evidence law applies to proceedings that are part heard before 1 January 2013? What evidence law applies to a criminal law or civil law proceeding that is part heard before 1 January 2013? What law applies to freezing or search orders made before 1 January 2013? Do the provisions in the Evidence (National Uniform Legislation) Act in relation to disclosure requirements apply in relation to orders a court has made in relation to disclosure before 1 January What law applies in relation to visual and picture identification evidence made before 1 January 2013? If documents are produced by machines prior to 1 January 2012, will the Evidence (National Uniform Legislation) Act apply in relation to a presumption that the machine produced the document? Does there always have to be an identification parade under section 114 of the Evidence (National Uniform Legislation) Act in order for visual identification evidence to be admissible? If a document was attested or verified before a lawyer, justice of the peace or commissioner of oaths before 1 January 2013 will presumptions contained in the Evidence (National Uniform Legislation) Act in relation to the document s validity apply? Will the presumptions under the Evidence (National Uniform Legislation) Act apply in relation to the validity of official documents published, signed or sealed before 1 January 2013? Will agreements in relation to agreed facts reached by parties before 1 January 2013 be subject to the prohibition against contradicting or qualifying an agreed 2

3 fact contained in section 191(2) of the Evidence (National Uniform Legislation) Act? Will the Evidence (National Uniform Legislation) Act apply in relation to evidence obtained illegally or improperly by an investigating official before 1 January 2013? Do notification provisions under the Evidence (National Uniform Legislation) Act have to be complied with in relation to time periods or processes that fall due prior to 1 January 2013? If the statutory time period to object to an intention not to call a person who has made a hearsay representation has expired after 1 January 2013 as a result of the notice being served before the commencement of the Evidence (National Uniform Legislation) Act, can a party still object? If a party is seeking to adduce tendency or coincidence evidence, can they comply with the notice requirements contained in sections 97(1)(a) and 98(1)(a) of the Evidence (National Uniform Legislation) Act by giving notice before 1 January 2013? Is a request under section 167 made before 1 January 2013 a valid request for the purposes of section 167 of the Evidence (National Uniform Legislation) Act? If a party has given notice under section 186(1) or (3) in relation to evidence it intends to adduce or served a document under section 168(5) or (6) in relation to tendering the document before 1 January 2013, what time periods will apply in order to make requests under section 167 of the Evidence (National Uniform Legislation) Act? Are requests made for the maker of a statement or deponent of an affidavit to be called to give evidence under section 173(2) valid despite the fact that the request was made prior to 1 January 2013?

4 1. When do the new laws take effect? 1 January What comprises the evidence law of the NT? Evidence law in the Northern Territory is primarily comprised of the Evidence (National Uniform Legislation) Act, the Evidence Act and the Sexual Offences (Evidence and Procedure) Act and, to a lesser extent, the common law. 3. What is the main purpose of the Evidence (National Uniform Legislation) Act? The main purpose of the new Act is to implement in the Northern Territory reforms to the law of evidence made by the uniform evidence law, which has now been adopted in most Australian jurisdictions. 4. Are there any differences between the Evidence (National Uniform Legislation) Act and uniform evidence legislation adopted in other jurisdictions? The major policy difference between the various uniform evidence law statutes are to do with a professional confidential communication privilege, including journalist shield laws. These matters are currently under consideration by the Northern Territory Government. 5. Are wives, de facto partners, and girlfriends of defendants forced to give evidence under the Evidence (National Uniform Legislation) Act? The spouse, de facto partner, parent or child of a defendant can object to giving evidence under section 18 of the Evidence (National Uniform Legislation) Act. If the court is satisfied that the nature and extent of any harm to the witness, or the relationship between the witness and the defendant, that flows from the witness giving evidence, outweighs the desirability of the witness giving evidence, then the witness is excused. Among the matters which may be taken into account in deciding that question are: the nature and gravity of the offence, the substance and importance of the evidence and whether it was received in confidence from the defendant, the nature of the relationship in question and whether there is any other evidence about the same matters the evidence was about available to the prosecutor. Section 19 of the Evidence (National Uniform Legislation) Act currently provides for a limited number of exceptions in relation to close relatives of an 4

5 accused ie who cannot make an application under section 18 to be excused from giving evidence. Amendments to the Evidence (National Uniform Legislation) Act that have been introduced into the Legislative Assembly will, if passed, provide that in any matters involving an alleged victim under the age of 16 a close relative cannot make an application under section 18 to be excused from giving evidence. Particular Northern Territory Acts override section 18 in specific situations. In a prosecution for an offence under the Care and Protection of Children Act, violent or sexual offences against children, breaches of domestic violence orders, the wife or family member must give evidence if called. 6. When is someone taken to be unavailable to give evidence for the purposes of section 65 of the Evidence (National Uniform Legislation) Act? Someone who has made a statement is taken to be unavailable to give evidence if they fall within the categories listed in clause 4 of Part 2 of the Dictionary in the Schedule to the Act. This includes if they are dead, or not competent to give evidence, or if they cannot be found and all reasonable steps have been taken to find the person or secure their attendance without success. 7. What evidence law applies to proceedings that are part heard before 1 January 2013? The transitional provisions will provide that the new Act applies to any proceedings commenced after 1 January In the case of a proceeding that began before 1 January 2013, the new Act applies to that part of the proceeding that takes place after the 1 January 2013, other than any hearing that began before 1 January For these hearings, the old Evidence Act continues to apply to the hearing until it is completed. See section 199(2) of the Evidence (National Uniform Legislation) Act. 8. What evidence law applies to a criminal law or civil law proceeding that is part heard before 1 January 2013? The applicable law is the law in place when a hearing as part of the proceeding took place (section 199(2) of the Evidence (National Uniform Legislation) Act). 5

6 9. What law applies to freezing or search orders made before 1 January 2013? The law as in force prior to 1 January See section 200 of the Evidence (National Uniform Legislation) Act). 10. Do the provisions in the Evidence (National Uniform Legislation) Act in relation to disclosure requirements apply in relation to orders a court has made in relation to disclosure before 1 January 2013? No. See section 201 of the Evidence (National Uniform Legislation) Act. 11. What law applies in relation to visual and picture identification evidence made before 1 January 2013? The law as in force prior to 1 January 2013 (see section 202 of the Evidence (National Uniform Legislation) Act). 12. If documents are produced by machines prior to 1 January 2012, will the Evidence (National Uniform Legislation) Act apply in relation to a presumption that the machine produced the document? Yes. See sections 146 and 147 of the Evidence (National Uniform Legislation) Act. 13. Does there always have to be an identification parade under section 114 of the Evidence (National Uniform Legislation) Act in order for visual identification evidence to be admissible? No there does not. Part 3.9 Identification evidence broadly reflects the common law. Visual identification evidence means evidence of identification based wholly or partly on what a person saw, but importantly, it does not include picture identification evidence. Visual identification evidence is not admissible without an identification parade having been held, unless it would have not been reasonable, or would have been impractical to have held such a parade, or if the defendant refused to take part. The impracticality of holding a parade might include such things as logistical difficulties or time taken to organise a parade. 6

7 14. If a document was attested or verified before a lawyer, justice of the peace or commissioner of oaths before 1 January 2013 will presumptions contained in the Evidence (National Uniform Legislation) Act in relation to the document s validity apply? Yes. See section 148 of the Evidence (National Uniform Legislation) Act. 15. Will the presumptions under the Evidence (National Uniform Legislation) Act apply in relation to the validity of official documents published, signed or sealed before 1 January 2013? Yes. See section 205 of the Evidence (National Uniform Legislation) Act. 16. Will agreements in relation to agreed facts reached by parties before 1 January 2013 be subject to the prohibition against contradicting or qualifying an agreed fact contained in section 191(2) of the Evidence (National Uniform Legislation) Act? Yes. See section 191 of the Evidence (National Uniform Legislation) Act. 17. Will the Evidence (National Uniform Legislation) Act apply in relation to evidence obtained illegally or improperly by an investigating official before 1 January 2013? No. See section 207 of the Evidence (National Uniform Legislation) Act. 18. Do notification provisions under the Evidence (National Uniform Legislation) Act have to be complied with in relation to time periods or processes that fall due prior to 1 January 2013? Yes. See section 208 of the Evidence (National Uniform Legislation) Act. 19. If the statutory time period to object to an intention not to call a person who has made a hearsay representation has expired after 1 January 2013 as a result of the notice being served before the commencement of the Evidence (National Uniform Legislation) Act, can a party still object? Yes, a party will have 7 days after the commencement date to object or 21 days after notice was given. See section 209 of the Evidence (National Uniform Legislation) Act. 7

8 20. If a party is seeking to adduce tendency or coincidence evidence, can they comply with the notice requirements contained in sections 97(1)(a) and 98(1)(a) of the Evidence (National Uniform Legislation) Act by giving notice before 1 January 2013? Yes. See section 210 of the Evidence (National Uniform Legislation) Act. 21. Is a request under section 167 made before 1 January 2013 a valid request for the purposes of section 167 of the Evidence (National Uniform Legislation) Act? Yes. See section 211(1) of the Evidence (National Uniform Legislation) Act. 22. If a party has given notice under section 186(1) or (3) in relation to evidence it intends to adduce or served a document under section 168(5) or (6) in relation to tendering the document before 1 January 2013, what time periods will apply in order to make requests under section 167 of the Evidence (National Uniform Legislation) Act? A party will have 7 days after 1 January 2013 or 21 days after notice was given or the document was served. See section 211 of the Evidence (National Uniform Legislation) Act. 23. Are requests made for the maker of a statement or deponent of an affidavit to be called to give evidence under section 173(2) valid despite the fact that the request was made prior to 1 January 2013? Yes. See section 212 of the Evidence (National Uniform Legislation) Act. 8