Evidence (Discreditable Conduct) Amendment Act 2011 (SA)

South Australia

Evidence (Discreditable Conduct) Amendment Act 2011

An Act to amend the Evidence Act 1929 and to make a related amendment to the Criminal Law Consolidation Act 1935.

The Parliament of South Australia enacts as follows:

This Act may be cited as the Evidence (Discreditable Conduct) Amendment Act 2011.

This Act will come into operation on a day to be fixed by proclamation.

In this Act, a provision under a heading referring to the amendment of a specified Act amends the Act so specified.

After section 34N insert:

Division 3—Admissibility of evidence showing discreditable conduct or disposition

34O—Application of Division

1. (1)

   This Division applies to the trial of a charge of an offence and prevails over any relevant common law rule of admissibility of evidence to the extent of any inconsistency.

2. (2)

   This Division does not apply to—

   1. (a)

      evidence adduced pursuant to section 18; or

   2. (b)

      evidence of the character, reputation, conduct or disposition of a person as a fact in issue.

34P—Evidence of discreditable conduct

1. (1)

   In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)—

   1. (a)

      cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and

   2. (b)

      is inadmissible for that purpose (impermissible use); and

   3. (c)

      subject to subsection (2), is inadmissible for any other purpose.

2. (2)

   Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if—

   1. (a)

      the judge is satisfied that the probative value of the evidence admitted for a permissible use substantially outweighs any prejudicial effect it may have on the defendant; and

   2. (b)

      in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial.

3. (3)

   In the determination of the question in subsection (2)(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.

4. (4)

   Subject to subsection (5), a party seeking to adduce evidence under this section must give reasonable notice in writing to each other party in the proceedings in accordance with the rules of court.

5. (5)

   The court may, if it thinks fit, dispense with the requirement in subsection (4).

34Q—Use of evidence for other purposes

Evidence that under this Division is not admissible for 1 use must not be used in…