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Evidence law amendments in force on 8 and 9 January 2017

15 December 2016

Changes to evidence law resulting from the Law Commission's 2013 review of the Evidence Act 2016 will come into force on 8 and 9 January 2017.

The Evidence Amendment Act 2016 Commencement Order 2016 states that the Evidence Amendment Act 2016 will come into force on 8 January 2017.

The 2016 amendment Act makes some minor and technical amendments as well as changes to court processes for vulnerable witnesses, by making changes to the Act relating to child witnesses and access to video record evidence.

These include enabling more previous consistent statements to be admissible in evidence, extending the privilege that currently applies to settlement negotiations and mediation in civil proceedings to include plea discussions in criminal proceedings, placing restrictions and safeguards on defence counsel access to video records of witnesses' evidence in certain cases, making the unauthorised possession, use and distribution of video record evidence an offence, and introducing a legislative presumption that all witnesses under the age of 18 use alternative ways to give their evidence (such as by video link).

A new section 44A provides for a process for giving notice where a party proposes to offer evidence or question a witness about the sexual experience of the complainant with a person other than the defendant.

Another amendment recognises that eyewitness, complainant and other statements contained in Police records are not inherently reliable, and changes the definition of "business record" to exclude them.

The Evidence Amendment Regulations 2016 were made by Order in Council on 5 December 2016 and will come into force on 9 January 2017. Many of the changes made are designed to align the principal regulations, the Evidence Regulations 2007, with the amendments made to the Evidence Act 2006 by the Evidence Amendment Act 2016.

Other changes in the 2016 amendment regulations provide that the principal regulations apply to some proceedings in which the provisions of the Evidence Act 2006 relating to to video record evidence are applied under the Armed Forces Discipline Act 1971 or the Court Martial Act 2007. Another change enables the use of certain mobile video records in criminal proceedings that concern allegations of domestic violence.

Last updated on the 16th September 2019