Evidence Regulations (Amendment)

Administered by Attorney-General's Department

Legislation au F1998B00011 Regulations Not in force Legislative Instrument

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Evidence Regulations (Amendment) 1998 No. 17

EXPLANATORY STATEMENT

STATUTORY RULES 1998 NO. 17

ISSUED BY THE AUTHORITY OF THE ATTORNEY-GENERAL

Evidence Act 1995

EVIDENCE REGULATIONS (AMENDMENT)

Section 197 of the Evidence Act 1995 (the Act) provides that the Governor-General may make regulations prescribing all matters required or permitted by the Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to this Act.

Section 67 of the Act provides that in certain circumstance, and subject to any directions of the court, reasonable notice in writing must be given of an intention to adduce hearsay evidence and that notice must be given in accordance with any regulations or rules of court. Sections 97 and 98 of the Act respectively provide that, subject to an exception and any directions of the court, tendency evidence and coincidence evidence is not admissible unless reasonable notice in writing has been given of intention to adduce the evidence. Section 99 of the Act provides that notices under section 97 or 98 are to be given in accordance with any regulations or orders of court.

Regulation 5 of the Evidence Regulations (the principal Regulations) requires that a notice under section 67 of the Act must state, among other things, particulars of the names and addresses so far as they are known to the notifying party of each person by whom and to whom representations were made, hearsay evidence of which the notifying party intends to adduce.' Regulation 6 of the principal Regulations provides that a notice under section 97 or 98 of the Act must state, among other things, particulars of the names and addresses, so far as they are known to the notifying party, of each person who saw, heard of otherwise perceived conduct (in relation to tendency evidence) or events ( in relation to coincidence evidence) evidence of which the notifying party intends to adduce. These Regulations amend the principal Regulations:

*       to remove the requirement to give particulars of addresses of persons named in notices of intention to adduce hearsay evidence tendency evidence or coincidence evidence in criminal proceedings;

*       to enable the court to order the address be provided on application by a party to the proceedings; and

*       to delete a superfluous word.

The Regulations are intended to protect persons who are to give evidence in criminal proceedings by ensuring their addresses are not normally disclosed. The Regulations are similar to regulations that have been made under the almost identical Evidence Act 1995 (NSW).

Details of the Regulations are as follows:

Regulation 1 is formal.

Regulation 2 amends Regulation 3 of the principal Regulations.

Paragraph 2.1 inserts a definition of "address" in subregulation 3(1).

Regulation 3 amends Regulation 5 of the principal Regulations.

Paragraph 3.1 amends subregulation 5(2) to delete the requirement for addresses to be provided in a notice of intention to adduce hearsay evidence.

Paragraph 3.2 inserts a new subparagraph 5(2)(c)(iii) to require that in civil proceedings the address be provided of persons named in a notice of intention to adduce hearsay evidence.

Paragraph 3.3 inserts new subregulations 5(7) and (8) to enable the court, on application, to order provision of the address of persons named in a notice of intention to adduce hearsay evidence in criminal proceedings, subject to terms the court considers appropriate.

Regulation 4 amends Regulation 6 of the principal Regulations.

Paragraph 4.1 amends subregulation 6(2) to delete the requirement for addresses to be provided in a notice of intention to adduce tendency evidence.

Paragraph 4.2 inserts a new subparagraph 6(2)(b)(iii) to require that in civil proceedings the address be provided of persons named in a notice of intention to adduce tendency evidence.

Paragraph 4.3 deletes "conduct" in subparagraph 6(3)(b)(i) to rectify a drafting error.

Paragraph 4.4 amends subregulation 6(3) to delete the requirement for addresses to be provided in a notice of intention to adduce coincidence evidence.

Paragraph 4.5 inserts a new subparagraph 6(3)(b)(iii) to require that in civil proceedings the address be provided of persons named in a notice of intention to adduce coincidence evidence.

Paragraph 4.6 inserts new subregulations 6(4) and (5) to enable the court, on application, to order provision of the address of persons named in a notice of intention to adduce tendency evidence or coincidence evidence in criminal proceedings, subject to terms the court considers appropriate.

 

Overview

The Evidence Regulations (Amendment) 1998 No. 17EXPLANATORY STATEMENTSTATUTORY RULES 1998 No. 17, issued by the authority of the Attorney-General, amends the Evidence Regulations made under the Evidence Act 1995. This legislation was enacted to address the need for a more balanced approach to the disclosure of addresses of individuals involved in criminal proceedings, while still ensuring that the necessary information is available for the purposes of civil proceedings and to enable courts to order disclosure where appropriate. The objective of the amendment is to safeguard the privacy of individuals in criminal proceedings by generally prohibiting the disclosure of their addresses in notices related to hearsay, tendency, or coincidence evidence, unless the court orders otherwise. This amendment aligns with similar regulations under the Evidence Act 1995 (NSW), providing consistency across jurisdictions and ensuring that the procedural protections are uniformly applied.

Scope and Application

The Evidence Regulations (Amendment) 1998 No. 17, issued under the authority of the Attorney-General, amends the Evidence Regulations made pursuant to the Evidence Act 1995. These regulations apply to all parties involved in legal proceedings in Australia, focusing specifically on the notice requirements for the adducing of hearsay, tendency, and coincidence evidence. The changes aim to protect individuals who are to give evidence in criminal proceedings by generally prohibiting the disclosure of their addresses. This amendment is designed to balance the need for notice in legal proceedings with the protection of individuals' privacy. The regulations apply to both civil and criminal proceedings at the Commonwealth level, aligning with similar regulations under the Evidence Act 1995 in New South Wales. Notably, while the requirement to disclose addresses in notices is generally removed for criminal proceedings, the court retains the discretion to order such disclosure on application in both criminal and civil cases, subject to appropriate conditions.

Key Provisions

The Evidence Regulations (Amendment) 1998 No. 17 modifies the Evidence Regulations (1995) by removing the requirement for providing the addresses of individuals in notices of intention to adduce hearsay, tendency, or coincidence evidence in criminal proceedings. The amendments aim to safeguard the privacy of witnesses in criminal cases by preventing the routine disclosure of their addresses. This change ensures that the addresses of individuals are not disclosed unless the court orders otherwise in specific circumstances. Regulation 3(1) defines "address" and Regulation 3(2) removes the mandatory provision of addresses in criminal cases, while Regulations 3(7) and (8) allow the court to order the disclosure of addresses in criminal proceedings upon application by a party, subject to the court's discretion. Under the amended Regulations, the obligation to provide addresses now only applies in civil proceedings, as specified in Regulations 3(2)(c)(iii), 4(2)(b)(iii), and 4(3)(b)(iii). This means that in civil cases, the parties must include the addresses of individuals named in notices of intention to adduce hearsay, tendency, or coincidence evidence. However, in criminal proceedings, the court can order the disclosure of addresses if it deems it necessary, providing a balance between the need for evidence and the protection of witnesses. The amendments also introduce provisions to enable the court to order the disclosure of addresses in criminal proceedings, as outlined in Regulations 3(7), (8), 4(4), and (5). This allows the court to make informed decisions about the necessity of address disclosure on a case-by-case basis. Any failure to comply with these Regulations, including not providing addresses in civil proceedings or disregarding a court order regarding addresses in criminal proceedings, may lead to procedural issues and potential legal consequences. The specific penalties for non-compliance are not detailed in the text, but they could include court sanctions or other legal repercussions depending on the context and severity of the breach.

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