Evidence on Commission Act 2001 (TAS)

Evidence on Commission Act 2001

An Act to provide for matters relating to evidence obtained in Tasmania for other jurisdictions and examination of witnesses outside Tasmania

[Royal Assent 17 December 2001]

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

PART 1Preliminary1Short titleThis Act may be cited as the Evidence on Commission Act 2001 . 2CommencementThis Act commences on a day to be proclaimed. 3InterpretationIn this Act – Australia includes – (a) for the purpose of Part 2 , the Territories of the Commonwealth (whether internal or external) for the government of which as a Territory provision is made by any Commonwealth Act; and (b) for the purpose of Part 3  – (i) the Territories of the Commonwealth (whether internal or external) for the government of which as a Territory provision is made by any Commonwealth Act; and (ii) New Zealand; examination includes any proceeding for the taking of evidence conducted by the judicial authorities of a foreign country in relation to a letter of request issued under an order made under Part 3 ; inferior court means a court of the State other than – (a) a court when exercising federal jurisdiction; or (b) the Supreme Court as defined in section 7 ; judicial authority, in relation to a place outside the State, means – (a) the Supreme Court of another State or a Territory of the Commonwealth; or (b) a court in that place that has the power or jurisdiction to give effect to a request made under Part 3 ; or (c) a court or person prescribed as a judicial authority for that place; place outside the State means a place outside the State, whether within or outside Australia; proceedings means proceedings – (a) in any civil or commercial matter; or (b) in or before a court in relation to the commission of an offence or an alleged offence; property includes any land, chattel or other corporeal property of any description; request includes any commission, order or other process issued by or on behalf of a requesting court; requesting court means a court or tribunal by or on whose behalf a request is made under section 4 . PART 2Evidence for proceedings in other jurisdictions4Application to Supreme Court for assistance in obtaining evidence for proceedings in other court (1)  The provisions of this Part apply to an application made to the Supreme Court for an order for evidence to be obtained in Tasmania if the Supreme Court is satisfied – (a) that the application is made in pursuance of a request issued by or on behalf of a court or tribunal exercising jurisdiction in a place outside Tasmania; and (b) that the evidence to which the application relates is to be obtained for the purposes of proceedings which either have been instituted before the requesting court or whose institution before that court is contemplated. (2) This Part does not apply in respect of proceedings relating to the commission of an offence or an alleged offence unless the requesting court is a court of a place in Australia or a court of New Zealand. 5Giving effect to application for assistance (1)  The Supreme Court, in relation to an application referred to in section 4 , may by order make any provision for obtaining evidence in Tasmania as may appear to it to be appropriate for the purpose of giving effect to the request in pursuance of which the application is made. (2)  The order may require a specified person to take any steps the Supreme Court considers appropriate for that purpose. (3)  Without limiting the generality of subsections (1) and (2) , the order under this section may make provision for any one or more of the following: (a) the examination of witnesses, either orally or in writing; (b) the production of documents; (c) the inspection, photographing, preservation, custody or detention of any property; (d) the taking of samples of any property and the carrying out of any experiments on or with any property; (e) the medical examination of any person; (f) the taking and testing of samples of blood from any person. (4) The order is not to require any particular steps to be taken unless they are steps that may be required to be taken by way of obtaining evidence for the purpose of proceedings in the Supreme Court, whether or not they are proceedings of the same description as those to which the application for the order relates. (5)  Subsection (4) does not preclude the making of an order requiring a person to give testimony, orally or in writing, otherwise than on oath if asked by the requesting court. (6)  The order is not to require a person to – (a) state what documents relevant to the proceedings to which the application for the order relates are or have been in the person’s possession, custody or power; or (b) produce any documents other than particular documents specified in the order and appearing to the Supreme Court making the order to be, or to be likely to be, in the person’s possession, custody or power. (7) A person who, by virtue of the order, is required to attend at any place is entitled to the same conduct money and payment for expenses and loss of time on attendance as a witness in proceedings before the Supreme Court. 6Privilege of witness (1)  A person is not compelled by virtue of an order under section 5 to give any evidence which the person could not be compelled to give – (a) in similar proceedings in Tasmania; or (b) in similar proceedings in the place in which the requesting court exercises jurisdiction. (2)  Subsection (1)(b) does not apply unless the claim of the person in question to be exempt from giving evidence is either – (a) supported by a statement contained in the request (whether it is so supported unconditionally or subject to conditions that are fulfilled); or (b) conceded by the applicant for the order. (3) If a claim by any person is not so supported or conceded, the person may be required to give the evidence to which the claim relates, but that evidence is not to be transmitted to the requesting court if that court, on the matter being referred to it, upholds the claim. (4)  In this section – (a) a reference to giving evidence includes a reference to answering any question and producing any document; and (b) a reference to the transmission of evidence given by a person is to be construed accordingly. PART 3Examination of witnesses outside State7Examination of witness outside State (1)  In this section, Supreme Court means that Court except when exercising federal jurisdiction. (2) The Supreme Court, in any civil or criminal proceeding before it, if it appears in the interests of justice to do so and on the application of a party to the proceedings, may make, in relation to a person outside the State, an order – (a) for the examination of the person on oath or affirmation at any place outside the State before a judge of the Supreme Court, an officer of the Supreme Court or any other person the Supreme Court may appoint; or (b) for the issue of a commission for the examination of the person on oath or affirmation at any place outside the State; or (c) for the issue of a letter of request to the judicial authorities of a place outside the State to take, or to cause to be taken, the evidence of the person. (3)  In determining if it is in the interests of justice to make an order under subsection (2) in relation to the taking of evidence of a person, the matters to which the Supreme Court is to have regard include the following matters: (a) whether the person is willing or able to come to the State to give evidence in the proceeding; (b) whether the person is able to give evidence material to any issue to be tried in the proceeding; (c) whether, having regard to the interests of the parties to the proceeding, justice is better served by granting or refusing the order. (4)  If the Supreme Court makes an order under subsection (2)(a) or (b) , it may, at the time of the making of the order or at a subsequent time, give any directions it thinks just relating to – (a) the procedure to be followed in and in relation to the examination; and (b) the time, place and manner of the examination; and (c) any other matter it considers relevant. (5)  If the Supreme Court makes an order under subsection (2)(c) in relation to the taking of evidence of a person in a proceeding, it may include in the order a request as to any matter relating to the taking of that evidence, including any of the following matters: (a) the examination, cross-examination or re-examination of the person, whether the evidence of the person is given orally, upon affidavit or otherwise; (b) the attendance of the legal representative of each party to the proceeding and the participation of those persons in the examination in appropriate circumstances; (c) any prescribed matter. (6) The Supreme Court, on any terms it considers fit, may permit a party to the proceeding to tender as evidence in the proceeding the evidence of a person taken in an examination held as a result of an order made under subsection (2) or a record of that evidence. (7)  Evidence of a person tendered under subsection (6) is not admissible if – (a) it appears to the satisfaction of the Supreme Court at the hearing of the proceeding that the person is in the State and is able to attend the hearing; or (b) the evidence would not have been admissible had it been given or produced at the hearing of the proceeding. (8) If it is in the interests of justice to do so, the Supreme Court may exclude from the proceeding evidence taken in an examination held as a result of an order made under subsection (2) , notwithstanding that it is otherwise admissible. (9)  The power vested in the Supreme Court under subsection (2) may be exercised in chambers. (10) In this section, a reference to evidence taken in an examination includes a reference to – (a) a document produced at the examination; and (b) answers made, whether in writing, or orally and reduced to writing, to any written interrogatories presented at the examination. 8Proceedings in inferior courts (1) The Supreme Court, on the application of a party to a civil or criminal proceeding before an inferior court, may exercise the same power to make an order of a kind referred to in section 7(2) for the purpose of that proceeding as the Supreme Court has under that subsection for the purpose of a proceeding in the Supreme Court. (2)  Subsections (6) , (7) and (8) of section 7 apply in relation to evidence taken in an examination held as a result of an order made by the Supreme Court under this section in relation to an inferior court as if – (a) in those subsections – (i) a reference to the proceeding were a reference to the proceeding in the inferior court; and (ii) a reference to the Supreme Court were a reference to the inferior court; and (b) a reference to an order made under subsection (2) of section 7 were a reference to an order made by the Supreme Court under this section. (3)  The power vested in the Supreme Court under subsection (1) may be exercised in chambers. 9Exclusion of evidence in criminal proceedingsThis Part does not affect the power of a court in a criminal proceeding to exclude evidence in the exercise of its discretion. PART 4Miscellaneous10Operation of other lawsThis Act does not exclude or limit the operation of any other law of the State, or of any rule or regulation made under, or in pursuance of, such a law, rule or regulation, that makes provision for – (a) the taking of evidence in the State for the purpose of a proceeding outside the State; or (b) the examination of witnesses outside the State for the purpose of a proceeding in the State. 11False statementsA person is guilty of a crime and is liable to punishment on indictment under the Criminal Code if the person, in giving any testimony otherwise than on oath or affirmation pursuant to an order under section 5 , makes a statement that – (a) the person knows to be false in a material particular; or (b) is false in a material particular and which the person does not believe to be true. 12Rules of Court (1)  Rules may be made under the Supreme Court Civil Procedure Act 1932 for or with respect to – (a) the manner in which an application is to be made under section 4 ; and (b) the circumstances in which an order may be made under section 5 ; and (c) the manner in which any reference specified in section 6(3) is to be made; and (d) prescribing any matter necessary or convenient for carrying out or giving effect to Part 3 ; and (e) the practice and procedure in proceedings relating to the making of an order under section 7 or 8 . (2)  The rules may include any incidental, supplementary and consequential provisions that are necessary or convenient. (3)  This section does not affect any power to make regulations or rules under any other law. 13Regulations (1)  The Governor may make regulations for the purpose of this Act. (2) The regulations may provide for matters relating to the practice and procedure in proceedings for the making of an order under section 7 or 8 . 14Administration of ActUntil provision is made in relation to this Act by order under section 4 of the Administrative Arrangements Act 1990  – (a) the administration of this Act is assigned to the Minister for Justice and Industrial Relations; and (b) the department responsible to the Minister for Justice and Industrial Relations in relation to the administration of this Act is the Department of Justice and Industrial Relations.

[Second reading presentation speech made in:

House of Assembly on 3 OCTOBER 2001

Legislative Council on 6 NOVEMBER 2001]