Evidence (Miscellaneous Provisions) Amendment (Affidavits) Act 2012

Evidence (Miscellaneous Provisions) Amendment (Affidavits) Act 2012

No. 4 of 2012

table of provisions

SectionPage

ClausePage

1Purpose

2Commencement

3Principal Act

4New Division 12 inserted in Part IV

Division 12—Miscellaneous

126BFalse or misleading statement as to swearingetc. of affidavit

5New section 165 inserted

165Validation of certain acts and documents

6Repeal of amending Act

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Endnotes

ClausePage

Victoria

ClausePage

Evidence (Miscellaneous Provisions) Amendment (Affidavits) Act 2012[†]

No. 4 of 2012

[Assented to 1 March 2012]

Evidence (Miscellaneous Provisions) Amendment (Affidavits) Act 2012
No. 4 of 2012

The Parliament of Victoriaenacts:

Evidence (Miscellaneous Provisions) Amendment (Affidavits) Act 2012
No. 4 of 2012

1Purpose

The purpose of this Act is to amend the Evidence (Miscellaneous Provisions) Act 1958—

(a)toaddress procedural defects in relation to certain affidavits; and

(b)to create an offence of making a false or misleading statement in relation to the swearing or affirming of affidavits or documents purporting to be affidavits.

2Commencement

s. 2

(1)This Act (except sections 4 and 5) comes into operation on the day on which it receives the Royal Assent.

(2)Section 5 is taken to have come into operation on 12 November 2011.

(3)Section 4 comes into operation on the day after the day on which this Act receives the Royal Assent.

3Principal Act

See:
Act No.
6246.
Reprint No. 17
as at
1 January 2010
and amending
Act Nos
7/2010, 13/2010, 53/2010, 36/2011 and 65/2011.
LawToday:
www.
legislation.
vic.gov.au

In this Act, the Evidence (Miscellaneous Provisions) Act 1958 is called the Principal Act.

4New Division 12 inserted in Part IV

After Division 11 of Part IV of the Principal Act insert—

"Division 12—Miscellaneous

126BFalse or misleading statement as to swearingetc. of affidavit

(1)Subject to subsection (2), a person must not make a false or misleading statement as to—

(a)the circumstances in which an affidavit or a document purporting to be an affidavit was sworn or affirmed; or

(b)whether or not an affidavitor a document purporting to be an affidavit was sworn or affirmed—

knowing that the statement is false or misleading.

Penalty:10 penalty units.

(2)This section applies—

(a)only in relation to a statement made on or after the commencement of section 4 of the Evidence (Miscellaneous Provisions) Amendment (Affidavits) Act 2012; and

(b)whether the affidavit or the document purporting to be an affidavit was sworn or affirmed before, on or after that commencement.".

5New section 165 inserted

s. 5

After section 164 of the Principal Act insert—

"165 Validation of certain acts and documents

(1)If an affidavit signed before 12 November 2011 by a person and by a person duly authorised to administer oaths contains words indicating that the first person states that the affidavit is made on oath or affirmation—

(a)it is not,and was not at any time,necessary that—

(i) the oath or affirmation be made orally; or

(ii)the first person signed the affidavit in the presence of the person duly authorised to administer oaths; or

(iii)the person duly authorised to administer oaths signed the affidavit in the presence of the first person; or

(iv)if the first person signed the affidavit in the presence of a person duly authorised to administer oaths, the person so authorised observed the person signing the affidavit; or

(v) the affidavit contained the statement required by section 126; and

s. 5

(b)the words indicating that the first person states that the affidavit was made on oath or affirmation are and are taken always to have been effective by way of oath or affirmation even if anything referred to in paragraph (a)(i) to(v) was not done or did not occur.

(2)A warrant, an order, a summons or other process issued or made by a court or a judicial officerin reliance, directly or indirectly, on an affidavit referred to in subsection (1) is not invalid only by reason of the fact that, but for subsection (1), the affidavit would not have been duly sworn or affirmed.

(3) For the purposes of the prosecution of an alleged offence, the fact that, but for subsection (1), an affidavit would not have been duly sworn or affirmed is to be disregarded in determining whether evidence obtained in reliance, directly or indirectly, on that affidavit ought to be admitted.

(4) Subject to subsection (3), this section does not limit a discretion of a court—

(a)to exclude evidence in a criminal proceeding; or

(b)to stay a criminal proceeding in the interests of justice.

(5) This section does not affect the rights of the parties in—

(a)the proceedings known as Director of Public Prosecutions (Vic.) v. Marijancevic (No. 264 of 2011),Director of Public Prosecutions (Vic.) v. Preece (No. 263 of 2011) and Director of Public Prosecutions (Vic.) v. Preece (No. 265 of 2011) in the Supreme Court of Victoria, Court of Appeal; or

s. 5

(b)any other proceeding in which a court,before the day on which the Evidence (Miscellaneous Provisions) Amendment (Affidavits) Act 2012 receives the Royal Assent, has made a ruling on the validity of—

(i) anaffidavit referred to in subsection (1); or

(ii)a warrant, an order, a summons or a processissued or made in reliance, directly or indirectly, on an affidavit referred to in subsection (1); or

(c)any other proceeding in which a court,before the day on which the Evidence (Miscellaneous Provisions) Amendment (Affidavits) Act 2012 receives the Royal Assent, has made a ruling on the admissibility of evidence obtained under a warrant, an order, a summons or other process issued or made in reliance, directly or indirectly, on an affidavit that, but for subsection (1), would not have been duly sworn or affirmed.

(6)In this section affidavit includes a document purporting to be an affidavit.".

6Repeal of amending Act

s. 6

This Act is repealed on the first anniversary of the first day on which all of its provisions are in operation.

Note

The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).

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Evidence (Miscellaneous Provisions) Amendment (Affidavits) Act 2012
No. 4 of 2012

Endnotes

[†] Minister's second reading speech—

Legislative Assembly: 28 February 2012

Legislative Council: 28 February 2012

The long title for the Bill for this Act was "A Bill for an Act to amend the Evidence (Miscellaneous Provisions) Act 1958 and for other purposes."