Evidence Act Amendment Act (No. 2) 1976 (WA)

WESTERN AUSTRALIA.

EVIDENCE (No. 2).

No. 142 of 1976.

AN ACT to amend the Evidence Act, 1906-1975.

[Assented to 13th December, 1976.]

BE it enacted by the Queen's Most ExcellentMajesty, 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 Act avattl,e,,..

Amendment Act (No. 2), 1976.

(2) In this Act the Evidence Act, 1906-1975 is Reprinted as approved for

referred to as the principal Act.	reprint 2nd
July, 1971
and amended
by Acts Nos.

(3) The principal Act as amended by this Act may Etclf619,74

be cited as the Evidence Act, 1906-1976. 1916.

No. 142.] Evidence (No. 2). [1976.

Section 97

repealed and	2. Section 97 of the principal Act is repealed and
re-enacted.

re-enacted with amendments as follows-

Sworn

evidence. 97. (1) Subject to any other Act in which express provision is made to the contrary, in any civil or criminal proceeding, or in any inquiry or examination in any Court or before any person acting judicially, every witness other than

(a)	a witness, the evidence of whom may be received pursuant to this Act though not given on oath;
(b)	a witness called for the purpose only of producing a document, where there is another witness called or to be called who can identify the document;
(c)	counsel giving evidence of the terms of a compromise reached between the parties to litigation in which he acted for one of those parties; and
(d)	a Judge, or counsel, giving evidence by way of explanation of a case in which he acted as such,

shall give evidence on oath.

(2) In any criminal proceeding, no accused person shall be entitled to make a statement of fact at his trial, otherwise than by way of admission of a fact alleged against him so as to dispense with proof of that fact, unless such statement is made by him as a witness.

(3) Every oath shall be binding which is administered and taken in a form and manner that

(a)	the person taking it declares to be binding on his conscience; and
(b)	the Court or person acting judicially, on being satisfied that the person tak- ing it understands the nature and intent of the oath, approves.

1976.] Evidence (No. 2). [No. 142.

(4) Where a person is tendered as a witness

and

(a)	it is found not to be reasonably practic- able without inconvenience or delay, at the time and place when and where he is so tendered, to administer to him an oath in the form and manner required to make it binding on his conscience;
(b)	he declares that the taking of an oath is contrary to his religious belief or conscience; or
(c)	for any other sufficient reason the tak- ing of an oath is found not to be appropriate,

he may be required to make solemn affirmation in the form provided by section ninety-nine of this Act. .

3.    Section 99 of the principal Act is amended by T=Te99

deleting subsection (4).

4.    The principal Act is amended by inserting a yricuction

new section, to stand as section 100A, as follows-

100A. (1) Where in any civil or criminal glinan proceeding, or in any inquiry or examination in agrnaotti;), any Court or before any person acting judicially used.

the Court or that person is satisfied that a person who is tendered as a witness does not understand the nature of, or the obligation imposed by, an oath or solemn affirmation but does understand

(a) that he is required to speak the truth and, where the witness is a compellable witness, to tell what he knows about the matter to which the testimony relates; and

No. 142.] Evidence (No. 2). [1976.

(b) that he will be liable to punishment if he does not do so,

the evidence of that person may be received

without an oath and without formality.

(2) In taking into account the weight and credibility that ought to be afforded to testi- mony given by a witness otherwise than on oath or solemn affirmation regard shall be had to the manner and circumstances in which it is given and received and to the fact that it was given without the sanction of an oath or solemn affirmation.

(3) Where it appears to a justice that any person who desires to lay a complaint or inform- ation is a person to whom the provisions of sub- section (1) of this section may apply, the justice may ascertain by inquiry the subject matter thereof and reduce it into the form of a com- plaint or information and any action or proceed- ings may be taken upon that complaint or information in all respects as if the complainant or informant had deposed to the truth of the contents thereof upon oath.

Before evidence is received or a complaint or information is laid pursuant to this section the Court or person acting judicially, or the justice, as the case may be, shall explain or cause to be explained to the person tendered as a witness or seeking to lay that complaint or information that he is required to speak the truth and, where the witness is a compellable witness, to tell what he knows about the matter in question and that he will be liable to punish- ment if he does not do so.

(4)

A person who, in giving evidence or laying any complaint or information pursuant to this section, knowingly makes a false statement material to the subject matter thereof is guilty of a misdemeanour and liable on conviction to imprisonment for a term of not more than five years. .

(5)

1976.] Evidence (No. 2). [No. 142.

Section 101

Section 101 of the principal Act is amended by deleting the words "of tender years who is tendered as a witness", in lines three and four, and substitut- ing the words "who has not attained the age of twelve years is tendered as a witness and". amended.

5.

6.    The principal Act is amended by inserting a icaaveae."''

new section, to stand as section 102, as follows—

In- rpr eta

102. (1) Where a person is called to act as tiote n 011

oath or

an interpreter in any Court, or before any per- affirmation,or on

son acting judicially, and that person, had he declaration.

been tendered as a witness, would have been

required to take an oath or make a solemn

affirmation he shall be required to take an oath

or make a solemn affirmation to well and truly

translate the evidence given, but if any such

person objects to so doing, or is objected to as

incompetent so to do, such person may be

admitted to act as interpreter, if the Court or

person acting judicially is satisfied as to his

ability to do so competently and as to his

impartiality, in the same way as if he had taken

the usual oath required of a person so called,

on his making the following promise or declara-

tion

I, A.B., of , solemnly promise and declare that I will well and truly trans- late such of the evidence given to

as I shall be asked to interpret. ,

and such declaration shall be of the same force

and effect as an oath.

(2) A person who, having taken the oath or made a solemn affirmation or declaration as an interpreter under this section, in interpreting any testimony pursuant to this section know- ingly fails to translate or translates falsely any material matter is guilty of a crime and liable on conviction to imprisonment for a term of not more than fourteen years. .

No. 142.] Evidence (No. 2). [1976.

Section 103

repealed and	7. Section 103 of the principal Act is repealed and
a new

section	a new section substituted, as follows-
added.
Interpreta-

tion	103. (1) If any person is called to act as an acting judicially, and for any reason is not required to take an oath or make a solemn affirmation such person may be admitted to act as interpreter, if the Court or person acting judicially is satisfied as to his ability to do so competently and as to his impartiality, in the same way as if he had taken the usual oath required of a person so called where, had he been a person tendered as a witness, his evidence might have been received pursuant to this Act without an oath and without formality, and the provisions of section one hundred A of this Act shall apply to and in relation to any such person and to the testimony interpreted by him mutatis mutandis.
otherwise
than on	interpreter in any Court, or before any person
oath, or
affirmation.
(2) Any person who, in interpreting any testimony pursuant to this section, knowingly fails to translate or translates falsely any material matter is guilty of a misdemeanour and liable on conviction to imprisonment for a term of not more than five years. .