Transitional evidence provisions

One of the most troubling questions for practioners about the Evidence Act 2008 late last year was whether it was going to apply retrospectively.

There were problems with either option. If the applicable law depended on when the alleged offence occurred (or perhaps the charge was filed), practitioners would have to prepare themselves for a contested hearing using one set of rules one week, another set the following week, and then back to the first set the week after. Not an easy proposition when there is only a second to decide whether to rise and make an objection or not.

On the other hand, if every matter heard after January 1 was determined using the new rules, a lot of evidence which was considered legitimate at the time of its collection or production would later be deemed inadmissible. If courts used their new statutory discretion to let it in anyway, it would set up precedents for the use of judicial discretion making the new law almost identical with the old.

Parliament settled on a compromise. Part 1 of Schedule 2 of the Evidence Act 2008 now includes transitional provisions that allows some evidence collected prior to January 1 to be admitted despite non-compliance with the new Act.

Here’s an abridged summary of Schedule 2 Part 1:

1) Commencement day means January 1 2010.

2) All hearings commencing after January 1 2010 fall under the operation of the Evidence Act 2008, but actual hearings (not proceedings) that commenced prior to Jan 1 will continue to apply the old rules;

3) Disclosure order provisions under s 128A do not apply to orders made prior to 1 January 2010.

4) Summons and subpoena provisions do apply the new rules of Part 3.10 if the hearing they relate to takes place after 1 January 2010.

5) Sections 114 (exclusion of visual identification evidence) and 115 (exclusion of picture identification evidence) do not apply to identifications made prior to January 1 2010.

6) Sections 146 (evidence produced by computers) and 147 (evidence from business documents) do apply to documents produced prior to January 1 2010.

7) Sections 148 (judicial notice of attestations) and 149 (not necessary to provide further proof) do apply to attestations done before January 1 2010.

8) Division 2 of Part 4.2 (Matters of Official Public Record) applies to the sealing, signing and publication of documents prior to January 1 2010.

9) Agreed facts entered into under s 149AB(3) of the repealed Evidence Act 1958 remain effective under s 191(3)(a).

10) The requirements under s 139 for investigating officials to caution suspects or else be deemed to have acted improperly does not apply to situations occurring prior to January 1 2010.

There is a Part 2 to Schedule 2, but now that the full Act is in effect it’s unlikely to have much work to do.

This transitional schedule was introduced by the Statute Law (Evidence Consequential Amendments) Act 2009, so doesn’t appear in the original print of the Evidence Act 2008 (though it does appear in the reprint).

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