Evidence Act Amendment Act 1966 (WA)

1966.] Evidence. [No. 20.

EVIDENCE.

No. 20 of 1966.

AN ACT to amend the Evidence Act, 1906-1964.

[Assented to 17th October, 1966.]

RE it enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Legislative Council and the Legislative Assembly of Western Australia, in this present Parliament assembled, and by the authority of the same, as follows:-

1. (1) This Act may be cited as the Evidence	Short title
and citation.

Act Amendment Act, 1966.

vol. 10

Reprinted

Acts.

Approved

(2) In this Act the Evidence Act, 1906-1964, is for reprint 13th June,

referred to as the principal Act.

1956 as

amended by

Acts Nos.

(3) The principal Act as amended by this Act	10 of 1960,
12 of 1962,

may be cited as the Evidence Act, 1906-1966.	54 of 1963 and
n of 1964.

No. 20.] Evidence. [1966.

Commence-	2.	This Act shall come into operation on a date
ment.

to be fixed by proclamation.

Heading and

S. 73A 3. The principal Act is amended by adding after

added.

section seventy-three a heading and section as

follows:—

Reproduction of Documents.

Interpre-

tation. 73A. In sections seventy-three B to seventy- three V, inclusive, unless the contrary intention appears

"business" includes public administration and business, profession, occupation and calling of every kind;

"document" includes any book, plan, paper, parchment or other material or part thereof on which is any writing or printing or which is marked with any letters or marks denoting words or any other signs capable of carrying a definite meaning to persons conversant with them;

"machine-copy" in relation to a document means a copy of the document that is made by a machine wherein or process by which an image of the contents of the document is produced from surface contact with the document or by the use of photo-sensitive material other than transparent photographic film;

"negative" in relation to a document means a transparent negative photograph used or intended to be used as a medium for reproducing the contents of that document and includes any transparent photograph made from surface contact with the original negative photograph;

"reproduction" in relation to a document

means a machine-copy of that

document or a print made from a

1966.] Evidence. [No. 20.

negative of that document; and "to reproduce" and derivatives thereof have corresponding meanings;

"this Division" means sections seventy- three A to seventy-three V of this Act. .

S. 73B

4. The principal Act is amended by adding a added.

section as follows:-

73B. (1) If a reproduction of a document i9e;gli cgc -

that is or at any time was in the custody or certain

under the control of the Registrar-General, the retircrients,

Registrar of Titles, Registrar of Companies or !t,C2aumiSSible

the Government Statist bears a certificate that RN?:

purports to be signed by the Registrar-General, proof.	the Registrar of Titles, an Assistant Registrar of Vide s.56 (b).
Titles, Registrar of Companies, or the Govern- ment Statist, as the case requires, certifying that it is a reproduction of that document, the reproduction is admissible in evidence without further proof as if it were the document of which it is certified to be a reproduction.

If a reproduction of a document that is at any time filed in a court or of the official record of any proceedings in a court bears a certificate purporting to be signed by the Master, Registrar, Clerk or other proper officer of that court certifying that it is a reproduction of that document or that record, the reproduction is admissible in evidence without further proof as if it were the document or record of which it is certified to be a reproduction.

(2)

Power of

(3) Where the Registrar-General, the Registrar of Titles, Registrar of Companies, the

certainofficers

to send certified

Government Statist or the Master, Registrar,

reproduc-

tions in

Clerk or proper officer of a court is served with

answer to process to

legal process to produce a document or record

produce

in a court or before a person acting judicially,

document

it is sufficient answer to that process if the person to whom it is addressed sends by prepaid post or causes to be delivered to the Master,

No. 20.] Evidence. [1966.

Registrar, Clerk or proper officer of the court in which the document or record is to be produced or the person before whom the document or record is to be produced, a reproduction of the document or record certified as provided in subsection (1) or (2) of this section as the case requires. .

S. 73C added. 5. The principal Act is amended by adding a

section as follows:—

Admissibility

of reproduc-	73C. (1) A reproduction of a document
tions of

business	being a document made or used in the course of
documents
destroyed,	a business is, subject to this Division, admissible
lost or
unavailable.	in any proceedings as evidence of that document upon proof that it is a reproduction thereof made in good faith and that the document has been destroyed or lost, whether wholly or in part, or that it is not reasonably practicable to produce the document or to secure its production.
Affidavit or
declaration
of maker of	(2) Without prejudice to any other mode of purporting to have been made by a person at or about the time he made a machine-copy or a negative of a document
copy, etc.,
to be	proof an affidavit or statutory declaration
evidence.

(a)

stating his full name, address and occupation;

(b)

identifying or describing the docu-

ment;

(c)

stating the day upon which he madethe machine-copy or negative, the

condition of the document at that time with respect to legibility and the extent of any damage thereto;

(d)	describing the machine or process by which he made the machine-copy or negative; and
(e)	stating that the processing was properly carried out in the ordinary course of business by the use of

1966.] Evidence. [No. 20.

apparatus and materials in good working order and condition with the object of reproducing the document—

is evidence, whether that person is available to be called as a witness or not, that the machine- copy or negative was made in good faith and is, or can be used to produce, as the case may be, a reproduction of the document. .

6. The principal Act is amended by adding a 2azg.

section as follows-

73D. (1) For the purposes of this Division PAMerrng

the Attorney General may by notice published Follalove in the Gazette, approve for micro-filming machinespp documents, in the ordinary course of business, Purposes. any make, model or type of photographic

copying machine (in this section called "an approved machine") if he is satisfied that the machine automatically photographs docu- ments passed through it in normal operating conditions at a speed that will prevent inter- ference by the operator with the course of copying a document.

(2) An approval given by the Attorney General under subsection (1) of this section

(a)	may be given subject to a condition that the approved machine shall be used when reproducing documents only with such materials or types of materials as are specified in the notice referred to in that subsection; and
(b)	may be revoked or varied by the Attorney General by a notice published in the Gazette.

(3) In addition to and without derogating ttimogra c-

from section seventy-three C of this Act, a igcrioigl

reproduction made of a document, being a adwithout

document made or used in the course of a proof ofti destruction

business, from a negative made by an approved ofs:ekeuxioent.

machine is, subject to this Division, admissible

No. 20.] Evidence. [1966.

in any proceedings as evidence of the document, whether that document is in existence or not, upon proof that

(a)	the negative was made in good faith by means of an approved machine; and
(b)	the print reproduces the image on the negative.

Affidavit of

maker of	(4) Without prejudice to any other mode of purporting to have been made by a person at or about the time he photographed a document by means of an approved machine
microfilm,
etc., to be	proof an affidavit or statutory declaration
evidence.

(a)	stating his full name, address and occupation and his functions or duties (if any) in relation to copying documents;
(b)	identifying or describing the document;
(c)	stating the day upon which the document was photographed, t h e condition of the document at that time with respect to legibility and the extent of any damage to the document;
(d)	stating the person or body from whose custody or control the document was produced for photographing or on whose behalf or in the course of whose business the document was photo- graphed; and
(e)	identifying the make, model or type of the approved machine and stating that the photographing was pr op e r l y carried out in the ordinary course of business by the use of apparatus and materials in good working order and condition

is evidence, whether that person is available to be called as a witness or not, that the negative referred to in the affidavit or statutory declaration was made in good faith by means of an approved machine and bears an image of the document. .

1966.] Evidence. [No. 20.

7. The principal Act is amended by adding a 2a7da

section as follows-

Proof where

73E. Where— document

(a)

of a document delivers or causes that Pmeess"'

document to be delivered to a person

whose business is or includes the

reproduction or photographing of

a person having the custody or control FndePendebnYt section called "the processor"); and

(b) the first mentioned person subse- quently receives a machine-copy or negative of that document from the processor together with an affidavit or statutory declaration made by the processor as to the making of the machine-copy or negative,

an affidavit or statutory declaration made by the first mentioned person at or about that time as

(c)	to his custody or control of the document;
(d)	its delivery and return to him by the processor; and
(e)	his subsequent disposal of the docu- ment and the machine - copy or negative,

is admissible as evidence of the facts stated therein whether the first mentioned person is available to be called as a witness or not. .

8. The principal Act is amended by adding a	S. 73P
added.

section as follows-

73F. Without prejudice to any other mode of proof an affidavit or statutory declaration	Affidavit or
declaration
of maker of
print from
purporting to have been made by a person at	microfilming
etc., to be
or about the time he made a print from a	evidence.
negative of a document

(a) stating his full name, address and occupation;

No. 20.] Evidence. [1966.

(b)	identifying the negative;
(c)	stating the day upon which the print was made, the condition of the negative and the extent of any damage thereto;
(d)	describing the process or procedure by which he made the print; and
(e)	stating that the printing was properly carried out by the use of apparatus and materials in good working order and condition with the object of reproducing the whole of the image on the negative

is evidence, whether that person is available to be called as a witness or not, that the print reproduces the whole of the image on the negative. .

S. 73G

added. 9. The principal Act is amended by adding a

section as follows-

Proof of

destruction	73G. A statement by a person in an affidavit
of docu-

ments, etc.

or statutory declaration made for the purposes

of this Division that

(a)	he destroyed or caused the destruction of a document;
(b)	a negative is in the custody or control of a person, corporation or body referred to in subsection (3) of section seventy-three K of this Act; or
(c)	a document came into existence or was used in the course of his business or that of his employer,

is evidence of the fact or facts stated.

S. 73H

added. 10. The principal Act is amended by adding a

section as follows-

Certified

copy of	7311. Unless the court or person acting
affidavits,

etc., to be	judicially otherwise orders a copy of an
admissible.	affidavit or statutory declaration made for the

1966.] Evidence. [No. 20.

purposes of this Division duly certified to be a

true copy

(a)	in the case of an affidavit or statutory declaration in the custody of a body corporate—by the chairman, secretary or by a director or manager thereof; or
(b)	in any other case—by a justice of the peace or a commissioner for taking affidavits in the Supreme Court or a Commissioner for declarations appointed under the Declarations and Attestations Act, 1913,

is admissible in evidence in proceedings before that court or that person instead of the original affidavit or declaration of which it is a copy. .

11. The principal Act is amended by adding a S.

section as follows-

73J. (1) Where documents are numbered in glre'sto,

regular arithmetical series and photographed ggi=

in the order in which they are so numbered so sa= 3pr

as to be recorded on a continuous length of film :iercrigri

as a series of negatives, one affidavit or statutory

declaration may be made for the purposes of

this Division relating to all the negatives on the

length of film; and it is a sufficient identifica-

tion or description of the documents if the

affidavit or declaration states the general

nature of the documents in the series and the

serial numbers of the first and last documents

recorded on the film.

(2) Where documents bear a distinctive gnSeacart identification mark and are so photographed t.seloccr

that the film produced records only the images mcoemtsobrear

of documents bearing that mark, one affidavit Ter:tuition

mark.

or statutory declaration may be made for the

purposes of this Division relating to all the

documents recorded on that film; and it is a

sufficient identification or description of the

documents if the affidavit or declaration states

No. 20.] Evidence. [1966.

the general nature of the documents recorded on the film and describes the common identification mark.

One affidavit

or declara-	(3)	Where documents purport from their
tion sufficient

where docu-	contents to relate to the same subject-matter,
ments are
with respect	to the same person or persons, or to a matter
to same
subject	between persons, it is a sufficient identification
matter, etc.	or description of the documents if the affidavit or declaration states the general nature of the documents and describes them as the documents relating to the subject-matter, the person or persons or the matter between the persons, as the case may be.
(4) For the purposes of this section where one of the images appearing on a length of film is the image of a statement signed by the person who photographed the documents recorded on the film the statement shall be deemed, in the absence of anything in the statement to the contrary, to relate to all the images on that length of film. .
S. 73K

added. 12. The principal Act is amended by adding a

section as follows-

Reproduc-

tions not	73K. (1) Except as provided in subsections
to be

admitted in	(2) and (3) of this section, a reproduction made
unless
evidence	through the medium of a negative shall not be
negative in
existence,	admitted as evidence pursuant to this Division
etc.	in any proceedings unless the court by which the proceedings are being heard or the person acting judicially thereon is satisfied

(a) that the negative is in existence at the time of the proceedings; and

(b) that the document reproduced was-

(i)    in existence for a period of not less than two years after the document was made; or

(ii)  was delivered or sent by the party tendering the reproduction

1966.] Evidence. [No. 20.

to the other party or one of the other parties to the proceedings.

Subsection

(2) The provisions of subsection (1) do not apply with respect to any reproduction referred

(1) not to

apply to

reproductions

certified by

to in section seventy-three B of this Act.

Registrar

General, etc.

Paragraph

The provisions of paragraph (b) of subsection (1) of this section do not apply with	section (1)
(b) of sub-
not to apply
to certain
respect to a reproduction made from a negative	insurance
Government,
made by an approved machine within the	and banking
documents.
meaning of section seventy-three D of this Act where at the time the print was made the negative was in the custody or control of

(3)

(a)	a Minister of the Crown in right of the Commonwealth or of this State or of any other State of the Commonwealth or an officer in a Government Depart- ment under the direct control of any of those Ministers;
(b)	an officer or a board, commission, trust or other body corporate or unincor- porate (including the council of a municipality) established or consti- tuted by or under the law of the Commonwealth or of this State or of any other State or a Territory of the Commonwealth for any public purpose;
(c)	a bank as defined in section five of the Banking Act 1959 of the Parliament of the Commonwealth as amended from time to time or any statutory corporation for the time being authorised to carry on any banking business in this State or in any other State or a Territory of the Common- wealth; or
(d)	any public company within the

meaning of the Companies Act, 1961,

(including a corporation that is a

public company under the law of

another State or a Territory of the

No. 20.] Evidence. [1966.

Commonwealth and is registered as a foreign company in this State under that Act) that is registered under the Life Insurance Act 1945 of the Parlia- ment of the Commonwealth as amended from time to time where the document in question relates to the life insurance business of that company.

Further

reproduction	(4) Where a reproduction made through the pursuant to this Division in any proceedings before a court or person acting judicially, that court or the person may at any time order a further reproduction to be made from the negative in the presence of a person appointed for the purpose by the court or person acting judicially. .
may be
ordered by	medium of a negative is admitted as evidence
court.
S. 73L

added. 13. The principal Act is amended by adding a

section as follows-

Changes in

colour or	73L. A reproduction of a document may be taken to be a reproduction of the document notwithstanding that the colour or tone of any writing, printing or representation on the document is reversed or altered in the reproduction or, in the case of a reproduction certified under subsection (1) of section seventy-three B of this Act, that any colour appearing in the document or any representa- tion not reproduced by reason of its colour was added to the reproduction before the reproduc- tion was certified. .
tone.
S. 73M

added. 14. The principal Act is amended by adding a

section as follows-

Notice to

produce not	73M. (1) A reproduction of a document may be admitted in evidence in any proceedings before any court or before any person acting judicially without any notice to produce the original document.
required.

1966. ] Evidence. [No. 20.

(2) Where a reproduction is tendered as.f4 Peor—pf.“son

evidence no proof is required that the reproduc- not required.

tion was compared with the original document. .

15. The principal Act is amended by adding a L

section as follows-

73N. A presumption that may be made in Pr tsoumptions

respect of a document over thirty years old may be made with respect to a reproduction of that document admitted in evidence under this Division in all respects as if the reproduction were the document.

S. 73P

16. The principal Act is amended by adding a added.

section as follows-

Reproduc-

73P. Where a reproduction is made of a

tions made

in other

document in another State or in a Territory of	States, etc.
the Commonwealth and would be admissible in evidence in that State or Territory by virtue of any enactment of that State or Territory corresponding with this Division, the reproduction is admissible in evidence in this State in the same circumstances, to the same extent and for the like purposes as it would be admissible in evidence in the first mentioned State or Territory under the law of that State or Territory.
S. 73Q

17. The principal Act is amended by adding a added.

section as follows-

Judicial

73Q. Where an Act or law requires a court or person acting judicially to take judicial notice of the seal or signature of any court, person or body corporate appearing on a document and a reproduction of that document is admitted in evidence pursuant to this Division in any proceedings before the court or person acting judicially, the court or person acting judicially shall take judicial notice of the image of the notice.

No. 20.] Evidence. [1966.

seal or signature on the reproduction to the same extent as it or he would be required to take judicial notice of the seal or signature on the document. .

S. 73R

added. 18. The principal Act is amended by adding a

section as follows-

Power to

preserve	73R. Unless the application of this section is
microfilm

instead of	expressly stated not to apply, where an Act, law
document
after three	or duty requires a document to be preserved or
years.	kept for any purpose for a longer period of time than three years it is sufficient compliance with such requirement to preserve or keep instead of the document that is over three years old, a negative thereof made by means of an approved machine within the meaning of section seventy- three D of this Act together with an affidavit or statutory declaration in accordance with subsection (4) of that section, that refers to the negative. .
S. 735

added. 19. The principal Act is amended by adding a

section as follows —

Factors

determining

73S. For the purpose of deciding whether or not a reproduction of a document is admissible in any proceedings before a court or person acting judicially as evidence of the document under the foregoing provisions of this Division, that court or that person may draw any reasonable inference from the nature of the reproduction of the machine or of the process used in making the reproduction or the negative from which it was produced or from any other circumstances, and may reject the reproduction, notwithstanding that the requirements of this Division are satisfied with respect thereto, if for any reason it appears inexpedient in the interests of justice that the reproduction should be admitted in evidence. .

admissibility.

1966.] Evidence. [No. 20.

20. The principal Act is amended by adding a r?a72;g.

section as follows-

73T. In estimating the weight of evidence =tti:L

to be attached to a reproduction rendered =n:to

admissible as evidence by this Division, regard

shall be had to the fact that if the person

making an affidavit or statutory declaration is

not called as a witness there has been no

opportunity to cross-examine him and to all the

circumstances from which any inference can

reasonably be drawn as to

(a)	the necessity for making the reproduc- tion or negative or for destroying or parting with the document;
(b)	the apparent accuracy or otherwise of the reproduction; and
(c)	any incentive to tamper with the document or to misrepresent the reproduction. .

21. The principal Act is amended by adding a ,?ayeyi.

section as follows-

73U. (1) Notwithstanding the provisions of yargre-

this Division, where a document is chargeable documente

with stamp duty under the Stamp Act, 1921, a vitettotA

reproduction of the document is not admissible IA P

under this Division in any proceedings before

a court or person acting judicially unless

(a)	the reproduction of the document shows or establishes to the satisfaction of the court or the person or it is otherwise so established that the document was duly s t a nip e d in accordance with that Act; or
(b)	where the reproduction does not so show or establish and it is not otherwise so established, the provisions of that Act which relate to documents that are not duly stamped in accord-

No. 20.1 Evidence. [1966.

ante with that Act are complied with with respect to the reproduction as though it were the document.

(2) Subject to this section, stamp duty is not chargeable under the Stamp Act, 1921 on

(a)	a reproduction of a document made in accordance with this Division; or
(b)	an affidavit or statutory declaration made for the purposes of this Division..

6. 62

added. 22. The principal Act is amended by adding a

section as follows-

Power of

Governor	73V. (1) The Governor may by proclamation except from the provisions of this Division any document or class of documents specified in the proclamation.
to except
documents.
(2) The Governor may by subsequent proclamation revoke or vary any proclamation made under subsection (1) of this section. .