{"id":"a-2011-12","name":"Evidence Act 2011","slug":"evidence-act-2011","collection":"act","jurisdiction":"act","status":"in_force","isInForce":true,"actNumber":"12 of 2011","makingDate":null,"administeringDepartment":null,"currentVersion":{"id":23525,"registerId":"act-a-2011-12-current","compilationNumber":null,"startDate":"2026-04-01","status":"InForce","reasons":null,"registeredAt":null},"sections":[{"sectionNumber":"1","sectionType":"section","heading":"Name of Act","content":"1 Name of Act\nThis Act is the Evidence Act 2011.\n","sortOrder":0},{"sectionNumber":"3","sectionType":"section","heading":"Dictionary","content":"3 Dictionary\nThe dictionary at the end of this Act is part of this Act.\nNote 1 The dictionary at the end of this Act defines certain terms used in this\nAct, and includes references (signpost definitions) to other terms defined\nelsewhere.\nFor example, the signpost definition ‘Commonwealth record—see the\nEvidence Act 1995 (Cwlth), dictionary.’ means that the term\n‘Commonwealth record’ is defined in that dictionary and the definition\napplies to this Act.\nNote 2 A definition in the dictionary (including a signpost definition) applies to\nthe entire Act unless the definition, or another provision of the Act,\nprovides otherwise or the contrary intention otherwise appears (see\nLegislation Act, s 155 and s 156 (1)).\nNote 3 This section differs from the Commonwealth Act and NSW Act.\n\nFormal matters Part 1.1\n","sortOrder":1},{"sectionNumber":"3A","sectionType":"section","heading":"Numbering","content":"3A Numbering\n(1) To maintain consistent section numbering between this Act and the\nCommonwealth Act—\n(a) if the Commonwealth Act contains a section that is not included\nin this Act—the section number and heading appearing in the\nCommonwealth Act are included in this Act despite the\nomission of the body of the section; and\n(b) if this Act contains a section that is not included in the\nCommonwealth Act—the section is numbered so as to maintain\nconsistency in numbering between sections common to both\nActs.\n(2) A section number and heading mentioned in subsection (1) (a) form\npart of this Act.\n(3) If a provision of this Act (other than a section) is numbered differently\nfrom the equivalent provision of the Commonwealth Act, the\nprovision of this Act may be referred to using the number of the\nequivalent provision of the Commonwealth Act.\nNote 1 A note appears under each heading mentioned in s (1) (a) describing the\nomitted section of the Commonwealth Act.\nNote 2 A note appears under each section mentioned in s (1) (b) highlighting the\nnon-appearance of an equivalent section in the Commonwealth Act.\nNote 3 The Commonwealth Act and NSW Act do not include this section.\n","sortOrder":2},{"sectionNumber":"3B","sectionType":"section","heading":"Notes","content":"3B Notes\nA note included in this Act is explanatory and is not part of this Act.\nNote 1 See the Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.\nNote 2 The Commonwealth Act and NSW Act do not include this section.\n\n","sortOrder":3},{"sectionNumber":"4","sectionType":"section","heading":"Courts and proceedings to which Act applies","content":"4 Courts and proceedings to which Act applies\n(1) This Act applies to all proceedings in an ACT court, including\nproceedings that—\n(a) relate to bail; or\n(b) are interlocutory proceedings or proceedings of a similar kind;\nor\n(c) are heard in chambers; or\n(d) subject to subsection (2), relate to sentencing.\n(2) If a proceeding relates to sentencing—\n(a) this Act applies only if the court directs that the law of evidence\napplies in the proceeding; and\n(b) if the court states in the direction that the law of evidence applies\nonly in relation to stated matters—the direction has effect\naccordingly.\n(3) The court must make a direction under this section if—\n(a) a party to the proceeding applies for the direction in relation to\nthe proof of a fact; and\n(b) in the court’s opinion, the proceeding involves proof of the fact,\nand the fact is or will be significant in deciding a sentence to be\nimposed in the proceeding.\n(4) The court must make a direction under this section if the court\nconsiders it appropriate in the interests of justice.\nNote This section differs from the Commonwealth Act, s 4.\n\nApplication of this Act Part 1.2\n","sortOrder":4},{"sectionNumber":"5","sectionType":"section","heading":"Extended application of certain provisions","content":"5 Extended application of certain provisions\nNote The Commonwealth Act includes a provision extending the application\nof stated provisions of the Commonwealth Act to proceedings in all\nAustralian courts.\n","sortOrder":5},{"sectionNumber":"6","sectionType":"section","heading":"Territories","content":"6 Territories\nNote The Commonwealth Act includes a provision extending that Act to each\nexternal territory.\n","sortOrder":6},{"sectionNumber":"7","sectionType":"section","heading":"Act binds Crown","content":"7 Act binds Crown\nNote The Commonwealth Act and NSW Act include a provision binding the\nCrown. The provision is unnecessary in the ACT (see Legislation Act,\ns 121).\n","sortOrder":7},{"sectionNumber":"8","sectionType":"section","heading":"Operation of other Acts","content":"8 Operation of other Acts\nThis Act does not affect the operation of the provisions of any other\nAct.\n1 Bail Act 1992, s 19 (2)\n","sortOrder":8},{"sectionNumber":"2","sectionType":"section","heading":"Evidence (Miscellaneous Provisions) Act 1991, ch 5","content":"2 Evidence (Miscellaneous Provisions) Act 1991, ch 5\nNote This section differs from the Commonwealth Act, s 8. Differences\ninclude additional subsections relating to the operation of the\nCorporations Act and the Australian Securities and Investments\nCommission Act 2001 (Cwlth).\n\n","sortOrder":9},{"sectionNumber":"8A","sectionType":"section","heading":"Offences against Act—application of Criminal Code etc","content":"8A Offences against Act—application of Criminal Code etc\nOther legislation applies in relation to offences against this Act.\nNote 1 Criminal Code\nThe Criminal Code, ch 2 applies to all offences against this Act (see\nCode, pt 2.1).\nThe chapter sets out the general principles of criminal responsibility\n(including burdens of proof and general defences), and defines terms used\nfor offences to which the Code applies (eg conduct, intention,\nrecklessness and strict liability).\nNote 2 Penalty units\nThe Legislation Act, s 133 deals with the meaning of offence penalties\nthat are expressed in penalty units.\nNote 3 This section differs from the Commonwealth Act, s 8A.\n","sortOrder":10},{"sectionNumber":"9","sectionType":"section","heading":"Application of common law and equity","content":"9 Application of common law and equity\n(1) This Act does not affect the operation of a principle or rule of\ncommon law or equity in relation to evidence in a proceeding to\nwhich this Act applies, except so far as this Act provides otherwise\nexpressly or by necessary intendment.\n(2) Without limiting subsection (1), this Act does not affect the operation\nof a principle or rule mentioned in subsection (1) so far as it relates to\nany of the following:\n(a) admission or use of evidence of reasons for a decision of a\nmember of a jury, or of the deliberations of a member of a jury\nin relation to the decision, in a proceeding by way of appeal from\na judgment, decree, order or sentence of a court;\n(b) the operation of a legal or evidential presumption that is not\ninconsistent with this Act;\n\nApplication of this Act Part 1.2\n(c) a court’s power to dispense with the operation of a rule of\nevidence or procedure in an interlocutory proceeding.\nNote This section differs from the Commonwealth Act, s 9. That section\npreserves the written and unwritten laws of States and Territories in\nrelation to certain matters.\n","sortOrder":11},{"sectionNumber":"10","sectionType":"section","heading":"Parliamentary privilege preserved","content":"10 Parliamentary privilege preserved\n(1) This Act does not affect the law relating to the privileges of any\nAustralian Parliament or any house of any Australian Parliament.\n(2) In particular, section 15 (2) (Compellability—Sovereign and others)\ndoes not affect, and is in addition to, the law relating to those\nprivileges.\n","sortOrder":12},{"sectionNumber":"11","sectionType":"section","heading":"General powers of a court","content":"11 General powers of a court\n(1) The power of a court to control the conduct of a proceeding is not\naffected by this Act, except so far as this Act provides otherwise\nexpressly or by necessary intendment.\n(2) In particular, the powers of a court in relation to abuse of process in\na proceeding are not affected.\n\n","sortOrder":13},{"sectionNumber":"Part 2","sectionType":"part","heading":"Giving and presenting","content":"Chapter 2 Giving and presenting\nevidence\nNote This chapter is about ways in which evidence is given and presented.\n• Pt 2.1 is about evidence from witnesses.\n• Pt 2.2 is about documentary evidence.\n• Pt 2.3 is about other forms of evidence.\n","sortOrder":14},{"sectionNumber":"Div 2","sectionType":"division","heading":"1.1 Competence and compellability of","content":"Division 2.1.1 Competence and compellability of\nwitnesses\n","sortOrder":15},{"sectionNumber":"12","sectionType":"section","heading":"Competence and compellability","content":"12 Competence and compellability\nExcept as otherwise provided by this Act—\n(a) every person is competent to give evidence; and\n(b) a person who is competent to give evidence about a fact is\ncompellable to give that evidence.\n","sortOrder":16},{"sectionNumber":"13","sectionType":"section","heading":"Competence—lack of capacity","content":"13 Competence—lack of capacity\n(1) A person is not competent to give evidence about a fact if, for any\nreason (including a mental, intellectual or physical disability)—\n(a) the person does not have the capacity to understand a question\nabout the fact; or\n(b) the person does not have the capacity to give an answer that can\nbe understood to a question about the fact;\nand that incapacity cannot be overcome.\nNote See s 30 and s 31 for examples of assistance that may be provided to\nenable witnesses to overcome disabilities.\n\n(2) A person who, because of subsection (1), is not competent to give\nevidence about a fact may be competent to give evidence about other\nfacts.\n(3) A person who is competent to give evidence about a fact is not\ncompetent to give sworn evidence about the fact if the person does\nnot have the capacity to understand that, in giving evidence, the\nperson is under an obligation to give truthful evidence.\n(4) A person who is not competent to give sworn evidence about a fact\nmay, subject to subsection (5), be competent to give unsworn\nevidence about the fact.\n(5) A person who, because of subsection (3), is not competent to give\nsworn evidence is competent to give unsworn evidence if the court\nhas told the person that—\n(a) it is important to tell the truth; and\n(b) the person may be asked questions that the person does not\nknow, or cannot remember, the answer to, and that the person\nshould tell the court if this happens; and\n(c) the person may be asked questions that suggest certain\nstatements are true or untrue and that the person should agree\nwith the statements that the person believes are true and should\nfeel no pressure to agree with statements that the person believes\nare untrue.\n(6) It is presumed, unless the contrary is proved, that a person is not\nincompetent because of this section.\n(7) Evidence that has been given by a witness does not become\ninadmissible only because, before the witness finishes giving\nevidence, the witness dies or ceases to be competent to give evidence.\n\n(8) For the purpose of deciding a question arising under this section, the\ncourt may inform itself as it thinks fit, including by obtaining\ninformation from a person who has relevant specialised knowledge\nbased on the person’s training, study or experience.\n","sortOrder":17},{"sectionNumber":"14","sectionType":"section","heading":"Compellability—reduced capacity","content":"14 Compellability—reduced capacity\nA person is not compellable to give evidence on a particular matter if\nthe court is satisfied that—\n(a) substantial cost or delay would be incurred in ensuring that the\nperson would have the capacity to understand a question about\nthe matter or to give an answer that can be understood to a\nquestion about the matter; and\n(b) adequate evidence on the matter has been given, or will be able\nto be given, from 1 or more other people or sources.\n","sortOrder":18},{"sectionNumber":"15","sectionType":"section","heading":"Compellability—Sovereign and others","content":"15 Compellability—Sovereign and others\n(1) None of the following is compellable to give evidence:\n(a) the Sovereign;\n(b) the Governor-General;\n(c) the Governor of a State;\n(d) the Administrator of a Territory;\n(e) a foreign sovereign or the Head of State of a foreign country.\n(2) A member of a house of an Australian Parliament is not compellable\nto give evidence if the member would, if compelled to give evidence,\nbe prevented from attending—\n(a) a sitting of the house or a joint sitting of the Parliament; or\n(b) if the member is a member of a committee of the house or the\nParliament—a meeting of the committee.\n\n","sortOrder":19},{"sectionNumber":"16","sectionType":"section","heading":"Competence and compellability—judges and jurors","content":"16 Competence and compellability—judges and jurors\n(1) A person who is a judge or juror in a proceeding is not competent to\ngive evidence in the proceeding.\n(2) However, a juror is competent to give evidence in the proceeding\nabout matters affecting conduct of the proceeding.\n(3) A person who is or was a judge in an Australian or overseas\nproceeding is not compellable to give evidence about the proceeding\n","sortOrder":20},{"sectionNumber":"17","sectionType":"section","heading":"Competence and compellability—defendants in criminal","content":"17 Competence and compellability—defendants in criminal\n(1) This section applies only in a criminal proceeding.\n(2) A defendant is not competent to give evidence as a witness for the\nprosecution.\n(3) An associated defendant is not compellable to give evidence for or\nagainst a defendant in a criminal proceeding unless the associated\ndefendant is being tried separately from the defendant.\n(4) If a witness is an associated defendant who is being tried jointly with\nthe defendant in the proceeding, the court must satisfy itself (if there\nis a jury, in the jury’s absence) that the witness is aware of the effect\nof subsection (3).\nNote Associated defendant—see the dictionary.\n","sortOrder":21},{"sectionNumber":"18","sectionType":"section","heading":"Compellability of domestic partners and others in","content":"18 Compellability of domestic partners and others in\ncriminal proceedings generally\n(1) This section applies only in a criminal proceeding.\n(2) A person who, when required to give evidence, is the domestic\npartner, parent or child of a defendant may object to being required—\n(a) to give evidence; or\n\n(b) to give evidence of a communication between the person and the\ndefendant;\nas a witness for the prosecution.\n(3) The objection must be made before the person gives the evidence or\nas soon as practicable after the person becomes aware of the right to\nobject, whichever is the later.\n(4) If it appears to the court that a person may have a right to make an\nobjection under this section, the court must satisfy itself that the\nperson is aware of the effect of this section as it may apply to the\nperson.\n(5) If there is a jury, the court must hear and decide any objection under\nthis section in the jury’s absence.\n(6) A person who makes an objection under this section to giving\nevidence or giving evidence of a communication must not be required\nto give the evidence if the court finds that—\n(a) there is a likelihood that harm would or might be caused\n(whether directly or indirectly) to the person, or to the\nrelationship between the person and the defendant, if the person\ngives the evidence; and\n(b) the nature and extent of that harm outweighs the desirability of\nhaving the evidence given.\n(7) Without limiting the matters that may be taken into account by the\ncourt for subsection (6), it must take into account the following:\n(a) the nature and gravity of the offence for which the defendant is\nbeing prosecuted;\n(b) the substance and importance of any evidence that the person\nmight give and the weight that is likely to be attached to it;\n(c) whether any other evidence about the matters to which the\nevidence of the person would relate is reasonably available to\nthe prosecutor;\n\n(d) the nature of the relationship between the defendant and the\nperson;\n(e) whether, in giving the evidence, the person would have to\ndisclose matter that was received by the person in confidence\nfrom the defendant.\n(8) If an objection under this section has been decided, the prosecutor\nmay not comment on—\n(a) the objection; or\n(b) the decision of the court in relation to the objection; or\n(c) the failure of the person to give evidence.\n","sortOrder":22},{"sectionNumber":"19","sectionType":"section","heading":"Compellability of domestic partners and others in certain","content":"19 Compellability of domestic partners and others in certain\ncriminal proceedings\nSection 18 does not apply in a proceeding for an offence against or\nmentioned in the following provisions:\n(a) an offence against the Crimes Act 1900, parts 2 to 5, that is an\noffence against a person under 16 years old;\n(b) an offence against the following provisions of the Children and\nYoung People Act 2008:\n(i) section 423 (Offence—contravene care and protection\norder);\n(ii) section 789 (Offence—contravene employment\nprohibition notice);\n(iii) section 791 (Offence—contravene employment conditions\nnotice);\n(iv) section 803 (Offence—employment of child or young\nperson under 15 years old in high risk employment);\n(v) section 804 (Offence—contravene condition of permit);\n\n(c) an offence if the conduct making up the offence is family\nviolence under the Family Violence Act 2016.\nNote This section differs from the Commonwealth Act and NSW Act, s 19.\n","sortOrder":23},{"sectionNumber":"20","sectionType":"section","heading":"Comment on failure to give evidence","content":"20 Comment on failure to give evidence\n(1) This section applies only in a criminal proceeding for an indictable\noffence.\n(2) The judge or any party (other than the prosecutor) may comment on\na failure of a defendant to give evidence.\n(3) However, unless the comment is made by another defendant in the\nproceeding, the comment must not suggest that the defendant failed\nto give evidence because the defendant was, or believed that the\ndefendant was, guilty of the offence.\n(4) The judge or any party (other than the prosecutor) may comment on\na failure to give evidence by a person who, at the time of the failure,\nwas—\n(a) the defendant’s domestic partner; or\n(b) a parent or child of the defendant.\n(5) However, unless the comment is made by another defendant in the\nproceeding, a comment mentioned in subsection (4) must not suggest\nthat the domestic partner, parent or child failed to give evidence\nbecause—\n(a) the defendant was guilty of the offence; or\n(b) the domestic partner, parent or child believed that the defendant\nwas guilty of the offence.\n(6) If—\n(a) 2 or more people are being tried together for an indictable\noffence; and\n\nOaths and affirmations Division 2.1.2\n(b) comment is made by any of them on the failure of any of them\nor of the domestic partner, or a parent or child, of any of them\nto give evidence;\nthe judge may, in addition to commenting on the failure to give\nevidence, comment on any comment mentioned in paragraph (b).\n","sortOrder":24},{"sectionNumber":"21","sectionType":"section","heading":"Sworn evidence of witnesses to be on oath or affirmation","content":"21 Sworn evidence of witnesses to be on oath or affirmation\n(1) A witness in a proceeding must take an oath or make an affirmation\nbefore giving evidence.\n(2) Subsection (1) does not apply to a person who gives unsworn\nevidence under section 13 (Competence—lack of capacity).\n(3) A person who is called only to produce a document or thing to the\ncourt need not take an oath or make an affirmation before doing so.\n(4) The witness must take the oath, or make the affirmation, in\naccordance with the appropriate form in schedule 1 or in a similar\nform.\n(5) An affirmation has the same effect for all purposes as an oath.\n","sortOrder":25},{"sectionNumber":"22","sectionType":"section","heading":"Interpreters and intermediaries to act on oath or","content":"22 Interpreters and intermediaries to act on oath or\naffirmation\n(1) A person must take an oath or make an affirmation before acting as\nan interpreter or intermediary in a proceeding.\n(2) An oath taken, or an affirmation made, by a person before acting as\nan interpreter or intermediary on a day is taken for subsection (1) to\nbe an oath taken or affirmation made by the person for the purposes\nof any subsequent proceeding in the court on the day the person acts\nin that capacity.\n(3) The person must take the oath, or make the affirmation, in accordance\nwith the appropriate form in schedule 1 or in a similar form.\n\n(4) An affirmation has the same effect for all purposes as an oath.\nNote The Commonwealth Act does not include intermediaries and does not\ninclude s (2).\n","sortOrder":26},{"sectionNumber":"23","sectionType":"section","heading":"Choice of oath or affirmation","content":"23 Choice of oath or affirmation\n(1) A person who is to be a witness or act as an interpreter or intermediary\nin a proceeding may choose whether to take an oath or make an\naffirmation.\n(2) The court must tell the person that the person has this choice, unless\nthe court is satisfied that the person has already been told or knows\nabout having the choice.\n(3) The court may direct a person who is to be a witness to make an\naffirmation if—\n(a) the person refuses to choose whether to take an oath or make an\naffirmation; or\n(b) it is not reasonably practicable for the person to take an\nappropriate oath.\nNote The Commonwealth Act does not include intermediaries, and s (2) differs\nfrom the Commonwealth Act.\n","sortOrder":27},{"sectionNumber":"24","sectionType":"section","heading":"Requirements for oaths","content":"24 Requirements for oaths\n(1) It is not necessary that a religious text be used in taking an oath.\n(2) An oath is effective for this division even if the person who took it—\n(a) did not have a religious belief or did not have a religious belief\nof a particular kind; or\n(b) did not understand the nature and consequences of the oath.\n\n","sortOrder":28},{"sectionNumber":"24A","sectionType":"section","heading":"Alternative oath","content":"24A Alternative oath\n(1) A person may take an oath even if the person’s religious or spiritual\nbeliefs do not include a belief in the existence of a god.\n(2) Despite anything to the contrary in this Act, the form of oath taken by\na person—\n(a) need not include a reference to a god; and\n(b) may instead refer to the basis of the person’s beliefs in\naccordance with a form prescribed by regulation.\nNote The Commonwealth Act does not include an equivalent provision to\ns 24A.\n","sortOrder":29},{"sectionNumber":"26","sectionType":"section","heading":"Court’s control over questioning of witnesses","content":"26 Court’s control over questioning of witnesses\nThe court may make the orders it considers just in relation to—\n(a) the way in which witnesses are to be questioned; and\n(b) the production and use of documents and things in connection\nwith the questioning of witnesses; and\n(c) the order in which parties may question a witness; and\n(d) the presence and behaviour of any person in connection with the\nquestioning of witnesses.\n","sortOrder":30},{"sectionNumber":"27","sectionType":"section","heading":"Parties may question witnesses","content":"27 Parties may question witnesses\nExcept as provided by this Act, a party may question any witness.\n\n","sortOrder":31},{"sectionNumber":"28","sectionType":"section","heading":"Order of examination-in-chief, cross-examination and","content":"28 Order of examination-in-chief, cross-examination and\nre-examination\nUnless the court otherwise directs—\n(a) cross-examination of a witness must not take place before the\nexamination-in-chief of the witness; and\n(b) re-examination of a witness must not take place before all other\nparties who wish to do so have cross-examined the witness.\n","sortOrder":32},{"sectionNumber":"29","sectionType":"section","heading":"Manner and form of questioning witnesses and their","content":"29 Manner and form of questioning witnesses and their\nresponses\n(1) A party may question a witness in any way the party thinks fit, except\nas provided by this chapter or as directed by the court.\n(2) The court may, on its own motion or on the application of the party\nthat called the witness, direct that the witness give evidence\ncompletely or partly in narrative form.\n(3) The direction may include directions about the way in which evidence\nis to be given in that form.\n(4) Evidence may be given in the form of charts, summaries or other\nexplanatory material if it appears to the court that the material would\nbe likely to aid its comprehension of other evidence that has been\ngiven or is to be given.\n","sortOrder":33},{"sectionNumber":"30","sectionType":"section","heading":"Interpreters","content":"30 Interpreters\nA witness may give evidence about a fact through an interpreter\nunless the witness can understand and speak the English language\nsufficiently to enable the witness to understand, and to make an\nadequate reply to, questions that may be put about the fact.\n\n","sortOrder":34},{"sectionNumber":"31","sectionType":"section","heading":"Deaf and mute witnesses","content":"31 Deaf and mute witnesses\n(1) A witness who cannot hear adequately may be questioned in any\nappropriate way.\n(2) A witness who cannot speak adequately may give evidence by any\nappropriate means.\n(3) The court may give directions about either or both of the following:\n(a) the way in which a witness may be questioned under subsection\n(1);\n(b) the means by which a witness may give evidence under\nsubsection (2).\n(4) This section does not affect the right of a witness to whom this section\napplies to give evidence about a fact—\n(a) through an interpreter under section 30; or\n(b) with the assistance of an intermediary under the Evidence\n(Miscellaneous Provisions) Act 1991, chapter 1B (Witness\nintermediaries—criminal proceedings).\n","sortOrder":35},{"sectionNumber":"32","sectionType":"section","heading":"Attempts to revive memory in court","content":"32 Attempts to revive memory in court\n(1) A witness must not, in the course of giving evidence, use a document\nto try to revive the witness’s memory about a fact or opinion unless\nthe court gives leave.\ndeciding whether to give leave, it must take into account—\n(a) whether the witness will be able to recall the fact or opinion\nadequately without using the document; and\n\n(b) whether the part of the document that the witness proposes to\nuse is, or is a copy of, a document that—\n(i) was written or made by the witness when the events\nrecorded in it were fresh in the witness’s memory; or\n(ii) was, at that time, found by the witness to be accurate.\n(3) If a witness has, while giving evidence, used a document to try to\nrevive the witness’s memory about a fact or opinion, the witness may,\nwith the leave of the court, read aloud, as part of the witness’s\nevidence, the part of the document that relates to the fact or opinion.\n(4) The court must, on the request of a party, give the directions the court\nthinks fit to ensure that the part of the document that relates to the\nproceeding is produced to the party.\n","sortOrder":36},{"sectionNumber":"33","sectionType":"section","heading":"Evidence given by police officers","content":"33 Evidence given by police officers\n(1) Despite section 32, in a criminal proceeding, a police officer may give\nevidence-in-chief for the prosecution by reading or being led through\na written statement previously made by the police officer.\n(2) Evidence may not be given in that way unless—\n(a) the statement was made by the police officer at the time of or\nsoon after the events mentioned in the statement happened; and\n(b) the police officer signed the statement when it was made; and\n(c) a copy of the statement had been given to the person charged or\nto the person’s Australian legal practitioner or legal counsel a\nreasonable time before the hearing of the evidence for the\nprosecution.\n(3) A reference in this section to a police officer includes a reference to\na person who was a police officer at the time the statement was made.\n\n","sortOrder":37},{"sectionNumber":"34","sectionType":"section","heading":"Attempts to revive memory out of court","content":"34 Attempts to revive memory out of court\n(1) The court may, on the request of a party, give the directions that are\nappropriate to ensure that stated documents and things used by a\nwitness otherwise than while giving evidence to try to revive the\nwitness’s memory are produced to the party for the purposes of the\n(2) The court may refuse to admit the evidence given by the witness so\nfar as it concerns a fact about which the witness tried to revive the\nwitness’s memory if, without reasonable excuse, the directions have\nnot been complied with.\n","sortOrder":38},{"sectionNumber":"35","sectionType":"section","heading":"Effect of calling for production of documents","content":"35 Effect of calling for production of documents\n(1) A party must not be required to tender a document only because the\nparty, whether under this Act or otherwise—\n(a) called for the document to be produced to the party; or\n(b) inspected it when it was produced.\n(2) The party who produces a document called for is not entitled to tender\nit only because the party to whom it was produced, or who inspected\nit, fails to tender it.\n","sortOrder":39},{"sectionNumber":"36","sectionType":"section","heading":"Person may be examined without subpoena or other","content":"36 Person may be examined without subpoena or other\nprocess\n(1) The court may order a person who—\n(a) is present at the hearing of a proceeding; and\n(b) is compellable to give evidence in the proceeding;\nto give evidence and to produce documents or things even if a\nsubpoena or other process requiring the person to attend for that\npurpose has not been served on the person.\n\nDivision 2.1.4 Examination-in-chief and re-examination\n(2) A person ordered to give evidence or to produce documents or things\nis subject to the same penalties and liabilities as if the person had been\nserved with a subpoena or other process.\n(3) A party who inspects a document or thing produced to the court\nbecause of subsection (1) need not use the document in evidence.\nDivision 2.1.4 Examination-in-chief and\nre-examination\n","sortOrder":40},{"sectionNumber":"37","sectionType":"section","heading":"Leading questions","content":"37 Leading questions\n(1) A leading question must not be put to a witness in\nexamination-in-chief or in re-examination unless—\n(a) the court gives leave; or\n(b) the question relates to a matter introductory to the witness’s\nevidence; or\n(c) no objection is made to the question and (leaving aside the party\nconducting the examination-in-chief or re-examination) each\nother party to the proceeding is represented by an Australian\nlegal practitioner, legal counsel or prosecutor; or\n(d) the question relates to a matter that is not in dispute; or\n(e) if the witness has specialised knowledge based on the witness’s\ntraining, study or experience—the question is asked for the\npurpose of obtaining the witness’s opinion about a hypothetical\nstatement of facts about which evidence has been, or is intended\nto be, given.\n(2) Unless the court otherwise directs, subsection (1) does not apply in a\ncivil proceeding to a question that relates to an investigation,\ninspection or report that the witness made in the course of carrying\nout public or official duties.\n\nExamination-in-chief and re-examination Division 2.1.4\n(3) Subsection (1) does not prevent the court from exercising power\nunder rules of court to allow a written statement or report to be\ntendered or treated as evidence-in-chief of its maker.\nNote Leading question—see the dictionary.\n","sortOrder":41},{"sectionNumber":"38","sectionType":"section","heading":"Unfavourable witnesses","content":"38 Unfavourable witnesses\n(1) A party who called a witness may, with the leave of the court,\nquestion the witness, as though the party were cross-examining the\nwitness, about—\n(a) evidence given by the witness that is unfavourable to the party;\nor\n(b) a matter of which the witness may reasonably be supposed to\nhave knowledge and about which it appears to the court the\nwitness is not, in examination-in-chief, making a genuine\nattempt to give evidence; or\n(c) whether the witness has, at any time, made a prior inconsistent\nstatement.\n(2) Questioning a witness under this section is taken to be\ncross-examination for this Act (other than section 39 (Limits on\nre-examination)).\n(3) The party questioning the witness under this section may, with the\nleave of the court, question the witness about matters relevant only to\nthe witness’s credibility.\nNote The rules about admissibility of evidence relevant only to credibility are\nset out in pt 3.7.\n(4) Questioning under this section must take place before the other\nparties cross-examine the witness, unless the court otherwise directs.\n(5) If the court gives a direction under subsection (4), the order in which\nthe parties question the witness must be as the court directs.\n\n(6) Without limiting the matters that the court may take into account in\ndeciding whether to give leave or a direction under this section, it\nmust take into account—\n(a) whether the party gave notice at the earliest opportunity of the\nparty’s intention to seek leave; and\n(b) the matters on which, and the extent to which, the witness has\nbeen, or is likely to be, questioned by another party.\n(7) A party is subject to the same liability to be cross-examined under\nthis section as any other witness if—\n(a) a proceeding is being conducted in the name of the party by or\non behalf of an insurer or someone else; and\n(b) the party is a witness in the proceeding.\n","sortOrder":42},{"sectionNumber":"39","sectionType":"section","heading":"Limits on re-examination","content":"39 Limits on re-examination\nOn re-examination—\n(a) a witness may be questioned about matters arising out of\nevidence given by the witness in cross-examination; and\n(b) other questions may not be put to the witness unless the court\ngives leave.\n","sortOrder":43},{"sectionNumber":"40","sectionType":"section","heading":"Witness called in error","content":"40 Witness called in error\nA party must not cross-examine a witness who has been called in error\nby another party and has not been questioned by the other party about\na matter relevant to a question to be decided in the proceeding.\n\n","sortOrder":44},{"sectionNumber":"41","sectionType":"section","heading":"Improper questions","content":"41 Improper questions\n(1) The court must disallow a question put to a witness in\ncross-examination, or tell the witness that it need not be answered, if\nthe court is of the opinion that the question (a disallowable\nquestion)—\n(a) is misleading or confusing; or\n(b) is unduly annoying, harassing, intimidating, offensive,\noppressive, humiliating or repetitive; or\n(c) is put to the witness in a manner or tone that is belittling,\ninsulting or otherwise inappropriate; or\n(d) has no basis other than a stereotype (for example, a stereotype\nbased on the witness’s sex, race, culture, ethnicity, age or\nmental, intellectual or physical disability).\n(2) Without limiting the matters the court may take into account for\nsubsection (1), it must take into account—\n(a) any relevant condition or characteristic of the witness of which\nthe court is, or is made, aware, including age, education, ethnic\nand cultural background, gender, language background and\nskills, level of maturity and understanding and personality; and\n(b) any mental, intellectual or physical disability of which the court\nis, or is made, aware and to which the witness is, or appears to\nbe, subject; and\n(c) the context in which the question is put, including—\n(i) the nature of the proceeding; and\n(ii) in a criminal proceeding—the nature of the offence to\nwhich the proceeding relates; and\n(iii) the relationship (if any) between the witness and any other\nparty to the proceeding.\n\n(3) A question is not a disallowable question only because—\n(a) the question challenges the truthfulness of the witness or the\nconsistency or accuracy of any statement made by the witness;\nor\n(b) the question requires the witness to discuss a subject that could\nbe considered distasteful to, or private by, the witness.\n(4) A party may object to a question put to a witness on the ground that\nit is a disallowable question.\n(5) However, the duty imposed on the court by this section applies\nwhether or not an objection is raised to a particular question.\n(6) A failure by the court to disallow a question under this section, or to\ntell the witness that it need not be answered, does not affect the\nadmissibility in evidence of any answer given by the witness in\nresponse to the question.\nNote A person must not, without the express permission of the court, print or\npublish any question that the court has disallowed under this section (see\ns 195).\n","sortOrder":45},{"sectionNumber":"42","sectionType":"section","heading":"Leading questions","content":"42 Leading questions\n(1) A party may put a leading question to a witness in cross-examination\nunless the court disallows the question or directs the witness not to\nanswer it.\ndeciding whether to disallow the question or give a direction, it must\ntake into account the extent to which—\n(a) evidence that has been given by the witness in\nexamination-in-chief is unfavourable to the party who called the\nwitness; and\n(b) the witness has an interest consistent with an interest of the\ncross-examiner; and\n\n(c) the witness is sympathetic to the party conducting the\ncross-examination, either generally or about a particular matter;\nand\n(d) the witness’s age, or any mental, intellectual or physical\ndisability to which the witness is subject, may affect the\nwitness’s answers.\n(3) The court must disallow the question, or direct the witness not to\nanswer it, if the court is satisfied that the facts would be better\nascertained if leading questions were not used.\n(4) This section does not limit the court’s power to control leading\nquestions.\nNote Leading question—see the dictionary.\n","sortOrder":46},{"sectionNumber":"43","sectionType":"section","heading":"Prior inconsistent statements of witnesses","content":"43 Prior inconsistent statements of witnesses\n(1) A witness may be cross-examined about a prior inconsistent\nstatement alleged to have been made by the witness whether or not—\n(a) complete particulars of the statement have been given to the\nwitness; or\n(b) a document containing a record of the statement has been shown\nto the witness.\n(2) If, in cross-examination, a witness does not admit that the witness has\nmade a prior inconsistent statement, the cross-examiner must not\npresent evidence of the statement otherwise than from the witness\nunless, in the cross-examination, the cross-examiner—\n(a) told the witness enough of the circumstances of the making of\nthe statement to enable the witness to identify the statement; and\n(b) drew the witness’s attention to the part of the statement that is\ninconsistent with the witness’s evidence.\n(3) For the purpose of presenting evidence of the statement, a party may\nre-open the party’s case.\n\n","sortOrder":47},{"sectionNumber":"44","sectionType":"section","heading":"Previous representations of other people","content":"44 Previous representations of other people\n(1) Except as provided by this section, a cross-examiner must not\nquestion a witness about a previous representation alleged to have\nbeen made by a person other than the witness.\n(2) A cross-examiner may question a witness about the representation\nand its contents if—\n(a) evidence of the representation has been admitted; or\n(b) the court is satisfied that it will be admitted.\n(3) If subsection (2) does not apply and the representation is contained in\na document, the document may only be used to question a witness as\nfollows:\n(a) the document must be produced to the witness;\n(b) if the document is a tape recording, or any other kind of\ndocument from which sounds are reproduced—the witness must\nbe provided with the means (for example, headphones) to listen\nto the contents of the document without other people present at\nthe cross-examination hearing the contents;\n(c) the witness must be asked whether, having examined (or heard)\nthe contents of the document, the witness stands by the evidence\nthat the witness has given;\n(d) neither the cross-examiner nor the witness may identify the\ndocument or disclose any of its contents.\n(4) A document used in a way mentioned in subsection (3) may be\nmarked for identification.\n\n","sortOrder":48},{"sectionNumber":"45","sectionType":"section","heading":"Production of documents","content":"45 Production of documents\n(1) This section applies if a party is cross-examining or has\ncross-examined a witness about—\n(a) a prior inconsistent statement alleged to have been made by the\nwitness that is recorded in a document; or\n(b) a previous representation alleged to have been made by someone\nelse that is recorded in a document.\n(2) If the court orders or if another party requires, the party must produce\nto the court or to the other party—\n(a) the document; or\n(b) evidence of the contents of the document that is available to the\nparty.\n(3) The court may—\n(a) examine a document or evidence that has been produced under\nsubsection (2); and\n(b) give directions as to its use; and\n(c) admit it even if it has not been tendered by a party.\n(4) Subsection (3) does not permit the court to admit a document or\nevidence that is not admissible because of chapter 3.\n(5) The mere production of a document to a witness who is being\ncross-examined does not give rise to a requirement that the\ncross-examiner tender the document.\n\n","sortOrder":49},{"sectionNumber":"46","sectionType":"section","heading":"Leave to recall witnesses","content":"46 Leave to recall witnesses\n(1) The court may give leave to a party to recall a witness to give\nevidence about a matter raised by evidence presented by another\nparty, and on which the witness was not cross-examined, if the\nevidence has been admitted and—\n(a) it contradicts evidence about the matter given by the witness in\nexamination-in-chief; or\n(b) the witness could have given evidence about the matter in\nexamination-in-chief.\n(2) A reference in this section to a matter raised by evidence presented\nby another party includes a reference to an inference drawn from, or\nthat the party intends to draw from, the evidence.\n\nDocuments Part 2.2\n","sortOrder":50},{"sectionNumber":"47","sectionType":"section","heading":"Definitions—pt 2.2","content":"47 Definitions—pt 2.2\n(1) For this part, a document in question is a document as to the contents\nof which it is sought to present evidence.\n(2) For this part, a reference to a copy of a document in question includes\na reference to a document that is not an exact copy of the document\nin question but that is identical to the document in question in all\nrelevant respects.\n","sortOrder":51},{"sectionNumber":"48","sectionType":"section","heading":"Proof of contents of documents","content":"48 Proof of contents of documents\n(1) A party may present evidence of the contents of a document in\nquestion by tendering the document in question or by any 1 or more\nof the following methods:\n(a) presenting evidence of an admission made by another party to\nthe proceeding as to the contents of the document in question;\n(b) tendering a document that—\n(i) is or purports to be a copy of the document in question; and\n(ii) has been produced, or purports to have been produced, by\na device that reproduces the contents of documents;\n(c) if the document in question is an article or thing by which words\nare recorded in a way as to be capable of being reproduced as\nsound, or in which words are recorded in a code (including\nshorthand writing)—tendering a document that is or purports to\nbe a transcript of the words;\n(d) if the document in question is an article or thing on or in which\ninformation is stored in a way that it cannot be used by the court\nunless a device is used to retrieve, produce or collate it—\ntendering a document that was or purports to have been\nproduced by use of the device;\n\n(e) tendering a document that—\n(i) forms part of the records of or kept by a business (whether\nor not the business is still in existence); and\n(ii) is or purports to be a copy of, or an extract from or a\nsummary of, the document in question, or is or purports to\nbe a copy of the extract or summary;\n(f) if the document in question is a public document—tendering a\ndocument that is or purports to be a copy of the document in\nquestion and that is or purports to have been printed—\n(i) by the government printer or the government or official\nprinter of the Commonwealth, a State or another Territory;\nor\n(ii) by authority of the government of the Territory, the\nCommonwealth, a State, another Territory or a foreign\ncountry; or\n(iii) by authority of an Australian Parliament, a house of an\nAustralian Parliament or a committee of an Australian\nParliament or of a house of an Australian Parliament.\n(2) Subsection (1) applies to a document in question whether the\ndocument in question is available to the party or not.\n(3) If the party presents evidence of the contents of a document under\nsubsection (1) (a), the evidence may only be used—\n(a) in relation to the party’s case against the other party who made\nthe admission; or\n(b) in relation to the other party’s case against the party who\npresented the evidence in that way.\n\nDocuments Part 2.2\n(4) A party may present evidence of the contents of a document in\nquestion that is not available to the party, or the existence and\ncontents of which are not in issue in the proceeding, by—\n(a) tendering a document that is a copy of, or an extract from or\nsummary of, the document in question; or\n(b) presenting evidence from a witness of the contents of the\ndocument in question.\nNote 1 The dictionary, pt 2, s 5 is about the availability of documents.\nNote 2 The Commonwealth Act, s 182 gives the Commonwealth Act, s 48 a\n","sortOrder":52},{"sectionNumber":"49","sectionType":"section","heading":"Documents in foreign countries","content":"49 Documents in foreign countries\nNo paragraph of section 48 (1) (other than paragraph (a)) applies to a\ndocument that is in a foreign country unless—\n(a) the party who presents evidence of the contents of the document\nin question has, not less than 28 days (or any other period\nprescribed by regulation or by rules of court) before the day on\nwhich the evidence is presented, served on each other party a\ncopy of the document proposed to be tendered; or\n(b) the court directs that it must apply.\nNote The Commonwealth Act, s 182 gives the Commonwealth Act, s 49 a\n","sortOrder":53},{"sectionNumber":"50","sectionType":"section","heading":"Proof of voluminous or complex documents","content":"50 Proof of voluminous or complex documents\n(1) The court may, on the application of a party, direct that the party may\npresent evidence of the contents of 2 or more documents in question\nin the form of a summary if the court is satisfied that it would not\notherwise be possible conveniently to examine the evidence because\nof the volume or complexity of the documents in question.\n\n(2) The court may only make a direction under subsection (1) if the party\nseeking to present the evidence in the form of a summary has—\n(a) served on each other party a copy of the summary that discloses\nthe name and address of the person who prepared the summary;\nand\n(b) given each other party a reasonable opportunity to examine or\ncopy the documents in question.\n(3) The opinion rule does not apply to evidence presented in accordance\nwith a direction under this section.\n","sortOrder":54},{"sectionNumber":"51","sectionType":"section","heading":"Original document rule abolished","content":"51 Original document rule abolished\nThe principles and rules of common law that relate to the means of\nproving the contents of documents are abolished.\nNote The Commonwealth Act, s 182 gives the provisions of the\nCommonwealth Act, pt 2.2 a wider application in relation to\nCommonwealth records and certain Commonwealth documents.\n\nOther evidence Part 2.3\n","sortOrder":55},{"sectionNumber":"52","sectionType":"section","heading":"Presenting of other evidence not affected","content":"52 Presenting of other evidence not affected\nThis Act (other than this part) does not affect the operation of any\nAustralian law or rule of practice so far as it permits evidence to be\npresented in a way other than by witnesses giving evidence or\ndocuments being tendered in evidence.\n","sortOrder":56},{"sectionNumber":"53","sectionType":"section","heading":"Views","content":"53 Views\n(1) A judge may, on application, order that a demonstration, experiment\nor inspection be held.\n(2) A judge must not make an order unless satisfied that—\n(a) the parties will be given a reasonable opportunity to be present;\nand\n(b) the judge and, if there is a jury, the jury will be present.\n(3) Without limiting the matters that the judge may take into account in\ndeciding whether to make an order, the judge must take into account\nthe following:\n(a) whether the parties will be present;\n(b) whether the demonstration, experiment or inspection will, in the\ncourt’s opinion, assist the court in resolving issues of fact or\nunderstanding the evidence;\n(c) the danger that the demonstration, experiment or inspection\nmight be unfairly prejudicial, might be misleading or confusing\nor might cause or result in undue waste of time;\n(d) in the case of a demonstration—the extent to which the\ndemonstration will properly reproduce the conduct or event to\nbe demonstrated;\n(e) in the case of an inspection—the extent to which the place or\nthing to be inspected has materially altered.\n\n(4) The court (including, if there is a jury, the jury) must not conduct an\nexperiment in the course of its deliberations.\n(5) This section does not apply in relation to the inspection of an exhibit\nby the court or, if there is a jury, by the jury.\n","sortOrder":57},{"sectionNumber":"54","sectionType":"section","heading":"Views to be evidence","content":"54 Views to be evidence\nThe court (including, if there is a jury, the jury) may draw any\nreasonable inference from what it sees, hears or otherwise notices\nduring a demonstration, experiment or inspection.\n\nNote This chapter is about whether evidence presented in a proceeding is\nadmissible.\n• Pt 3.1 sets out the general inclusionary rule that relevant evidence is\nadmissible.\n• Pt 3.2 is about the exclusion of hearsay evidence, and exceptions to\nthe hearsay rule.\n• Pt 3.3 is about exclusion of opinion evidence, and exceptions to the\nopinion rule.\n• Pt 3.4 is about admissions and the extent to which they are\nadmissible as exceptions to the hearsay rule and the opinion rule.\n• Pt 3.5 is about exclusion of certain evidence of judgments and\nconvictions.\n• Pt 3.6 is about exclusion of evidence of tendency or coincidence,\nand exceptions to the tendency rule and the coincidence rule.\n• Pt 3.7 is about exclusion of evidence relevant only to credibility, and\nexceptions to the credibility rule.\n• Pt 3.8 is about character evidence and the extent to which it is\nadmissible as exceptions to the hearsay rule, the opinion rule, the\ntendency rule and the credibility rule.\n• Pt 3.9 is about the requirements that must be satisfied before\nidentification evidence is admissible.\n• Pt 3.10 is about the various categories of privilege that may prevent\nevidence being presented.\n• Pt 3.11 provides for the discretionary and mandatory exclusion of\nevidence even if it would otherwise be admissible.\nThe following diagram shows how this chapter applies to particular\nevidence:\n\n▼\n▼\n▼\n▼\n▼\n▼\n▼\n▼\n▼\n►\n►\n►\n►\n►\n►\n►\n►\n►\nIs the evidence relevant? (See pt 3.1).\nTHE\nEVIDENCE IS\nNOT\nADMISSIBLE\nNo\nYes\nDoes the hearsay rule apply? (See pt 3.2. See\nalso pt 3.4 on admissions and pt 3.8 on\ncharacter evidence.) Yes\nNo\nDoes the opinion rule apply? (See pt 3.3.\nSee also pt 3.4 on admissions and pt 3.8 on\ncharacter evidence.) Yes\nNo\nDoes the evidence contravene the rule about\nevidence of judgments and convictions? (See\npt 3.5.) Yes\nNo\nDoes the tendency rule or the coincidence rule\napply? (See pt 3.6. See also pt 3.8 on character\nevidence.) Yes\nNo\nDoes the credibility rule apply? (See pt 3.7.\nSee also pt 3.8 on character evidence.) Yes\nNo\nDoes the evidence contravene the rules about\nidentification evidence? (See pt 3.9.) Yes\nNo\nDoes a privilege apply? (See pt 3.10.) Yes\nNo\nShould the evidence be excluded or must it be\nexcluded? (See pt 3.11.) Yes\nNo\nTHE EVIDENCE IS ADMISSIBLE\n\nRelevance Part 3.1\n","sortOrder":58},{"sectionNumber":"55","sectionType":"section","heading":"Relevant evidence","content":"55 Relevant evidence\n(1) The evidence that is relevant in a proceeding is evidence that, if it\nwere accepted, could rationally affect (directly or indirectly) the\nassessment of the probability of the existence of a fact in issue in the\n(2) In particular, evidence is not taken to be irrelevant only because it\nrelates only to—\n(a) the credibility of a witness; or\n(b) the admissibility of other evidence; or\n(c) a failure to present evidence.\n","sortOrder":59},{"sectionNumber":"56","sectionType":"section","heading":"Relevant evidence to be admissible","content":"56 Relevant evidence to be admissible\n(1) Except as otherwise provided by this Act, evidence that is relevant in\na proceeding is admissible in the proceeding.\n(2) Evidence that is not relevant in the proceeding is not admissible.\n","sortOrder":60},{"sectionNumber":"57","sectionType":"section","heading":"Provisional relevance","content":"57 Provisional relevance\n(1) If the decision about the question whether evidence presented by a\nparty is relevant depends on the court making another finding\n(including a finding that the evidence is what the party claims it to\nbe), the court may find that the evidence is relevant—\n(a) if it is reasonably open to make the finding; or\n(b) subject to further evidence being admitted at a later stage of the\nproceeding that will make it reasonably open to make the\nfinding.\n\n(2) Without limiting subsection (1), if the relevance of evidence of an act\ndone by a person depends on the court making a finding that the\nperson and 1 or more other people had, or were acting in furtherance\nof, a common purpose (whether to effect an unlawful conspiracy or\notherwise), the court may use the evidence itself in deciding whether\nthe common purpose existed.\n","sortOrder":61},{"sectionNumber":"58","sectionType":"section","heading":"Inferences as to relevance","content":"58 Inferences as to relevance\n(1) If a question arises as to the relevance of a document or thing, the\ncourt may examine it and may draw any reasonable inference from it,\nincluding an inference as to its authenticity or identity.\n(2) Subsection (1) does not limit the matters from which inferences may\nproperly be drawn.\n\nThe hearsay rule Division 3.2.1\n","sortOrder":62},{"sectionNumber":"59","sectionType":"section","heading":"The hearsay rule—exclusion of hearsay evidence","content":"59 The hearsay rule—exclusion of hearsay evidence\n(1) Evidence of a previous representation made by a person is not\nadmissible to prove the existence of a fact that it can reasonably be\nsupposed that the person intended to assert by the representation.\n(2) For this part, a fact mentioned in subsection (1) is an asserted fact.\n(3) For the purposes of deciding under subsection (1) whether it can\nreasonably be supposed that the person intended to assert a particular\nfact by the representation, the court may have regard to the\ncircumstances in which the representation was made.\nNote Subsection (3) was inserted as a response to the decision of the NSW\nSupreme Court in R v Hannes (2000) 158 FLR 359.\n(4) Subsection (1) does not apply to evidence of a representation\ncontained in a certificate or other document given or made under a\nregulation made under an Act other than this Act to the extent to\nwhich the regulation provides that the certificate or other document\nhas evidentiary effect.\nNote Specific exceptions to the hearsay rule are as follows:\n• evidence relevant for a non-hearsay purpose (s 60)\n• first-hand hearsay:\n– civil proceedings, if the maker of the representation is\nunavailable (s 63) or available (s 64)\n– criminal proceedings, if the maker of the representation is\nunavailable (s 65) or available (s 66)\n• contemporaneous statements about a person’s health etc (s 66A)\n• business records (s 69)\n• tags and labels (s 70)\n• electronic communications (s 71)\n\n• Aboriginal and Torres Strait Islander traditional laws and customs\n(s 72)\n• marriage, family history or family relationships (s 73)\n• public or general rights (s 74)\n• use of evidence in interlocutory proceedings (s 75)\n• admissions (s 81)\n• representations about employment or authority (s 87 (2))\n• exceptions to the rule excluding evidence of judgments and\nconvictions (s 92 (3))\n• character of and expert opinion about accused people (s 110 and\ns 111).\n1 D is the defendant in a sexual assault trial. W has made a statement to the\npolice that X told W that X had seen D leave a night club with the victim\nshortly before the sexual assault is alleged to have happened. Unless an\nexception to the hearsay rule applies, evidence of what X told W cannot be\ngiven at the trial.\n2 P had told W that the handbrake on W’s car did not work. Unless an exception\nto the hearsay rule applies, evidence of that statement cannot be given by P,\nW or anyone else to prove that the handbrake was defective.\n3 W had bought a video cassette recorder and written down its serial number on\na document. Unless an exception to the hearsay rule applies, the document is\ninadmissible to prove that a video cassette recorder later found in D’s\npossession was the video cassette recorder bought by W.\n","sortOrder":63},{"sectionNumber":"60","sectionType":"section","heading":"Exception—evidence relevant for a non-hearsay purpose","content":"60 Exception—evidence relevant for a non-hearsay purpose\n(1) The hearsay rule does not apply to evidence of a previous\nrepresentation that is admitted because it is relevant for a purpose\nother than proof of an asserted fact.\n\n(2) This section applies whether or not the person who made the\nrepresentation had personal knowledge of the asserted fact (within the\nmeaning of section 62 (2) (Restriction to first-hand hearsay)).\nNote Subsection (2) was inserted as a response to the decision of the High\nCourt in Lee v The Queen (1998) 195 CLR 594.\n(3) However, this section does not apply in a criminal proceeding to\nevidence of an admission.\nNote The admission might still be admissible under s 81 as an exception to the\nhearsay rule if it is first-hand hearsay—see s 82.\n","sortOrder":64},{"sectionNumber":"61","sectionType":"section","heading":"Exceptions to the hearsay rule dependent on competency","content":"61 Exceptions to the hearsay rule dependent on competency\n(1) This part does not enable use of a previous representation to prove\nthe existence of an asserted fact if, when the representation was made,\nthe person who made it was not competent to give evidence about the\nfact because of section 13 (1) (Competence—lack of capacity).\n(2) This section does not apply to a contemporaneous representation\nmade by a person about the person’s health, feelings, sensations,\nintention, knowledge or state of mind.\nNote For the admissibility of contemporaneous representations, see s 66A.\n(3) For this section, it is presumed, unless the contrary is proved, that\nwhen the representation was made the person who made it was\ncompetent to give evidence about the asserted fact.\n","sortOrder":65},{"sectionNumber":"62","sectionType":"section","heading":"Restriction to first-hand hearsay","content":"62 Restriction to first-hand hearsay\n(1) For this division (other than in subsection (2)), a previous\nrepresentation is a previous representation that was made by a person\nwho had personal knowledge of an asserted fact.\n\n(2) A person has personal knowledge of an asserted fact if the person’s\nknowledge of the fact was, or might reasonably be supposed to have\nbeen, based on something that the person saw, heard or otherwise\nperceived, other than a previous representation made by someone else\nabout the fact.\n(3) For section 66A (Exception—contemporaneous statements about a\nperson’s health etc), a person has personal knowledge of the asserted\nfact if it is a fact about the person’s health, feelings, sensations,\nintention, knowledge or state of mind at the time the representation\nmentioned in the section was made.\n","sortOrder":66},{"sectionNumber":"63","sectionType":"section","heading":"Exception—civil proceedings if maker not available","content":"63 Exception—civil proceedings if maker not available\n(1) This section applies in a civil proceeding if a person who made a\nprevious representation is not available to give evidence about an\nasserted fact.\n(2) The hearsay rule does not apply to—\n(a) evidence of the representation that is given by a person who saw,\nheard or otherwise perceived the representation being made; or\n(b) a document so far as it contains the representation, or another\nrepresentation to which it is reasonably necessary to refer in\norder to understand the representation.\nNote 1 Section 67 imposes notice requirements relating to this subsection.\nNote 2 The dictionary, pt 2, s 4 is about the availability of people.\n","sortOrder":67},{"sectionNumber":"64","sectionType":"section","heading":"Exception—civil proceedings if maker available","content":"64 Exception—civil proceedings if maker available\n(1) This section applies in a civil proceeding if a person who made a\nprevious representation is available to give evidence about an asserted\nfact.\n(2) The hearsay rule does not apply to—\n(a) evidence of the representation that is given by a person who saw,\nheard or otherwise perceived the representation being made; or\n\n(b) a document so far as it contains the representation, or another\nrepresentation to which it is reasonably necessary to refer in\norder to understand the representation;\nif it would cause undue expense or undue delay, or would not be\nreasonably practicable, to call the person who made the\nrepresentation to give evidence.\nNote 1 Section 67 imposes notice requirements relating to this subsection.\nNote 2 Section 68 is about objections to notices that relate to this subsection.\n(3) If the person who made the representation has been or is to be called\nto give evidence, the hearsay rule does not apply to evidence of the\nrepresentation that is given by—\n(a) the person; or\n(b) a person who saw, heard or otherwise perceived the\nrepresentation being made.\n(4) A document containing a representation to which subsection (3)\napplies must not be tendered before the conclusion of the\nexamination-in-chief of the person who made the representation,\n","sortOrder":68},{"sectionNumber":"65","sectionType":"section","heading":"Exception—criminal proceedings if maker not available","content":"65 Exception—criminal proceedings if maker not available\n(1) This section applies in a criminal proceeding if a person who made a\nprevious representation is not available to give evidence about an\nasserted fact.\n(2) The hearsay rule does not apply to evidence of a previous\nrepresentation that is given by a person who saw, heard or otherwise\nperceived the representation being made, if the representation—\n(a) was made under a duty to make that representation or to make\nrepresentations of that kind; or\n\n(b) was made when or shortly after the asserted fact happened and\nin circumstances that make it unlikely that the representation is\na fabrication; or\n(c) was made in circumstances that make it highly probable that the\nrepresentation is reliable; or\n(d) was—\n(i) against the interests of the person who made it at the time\nit was made; and\n(ii) made in circumstances that make it likely that the\nrepresentation is reliable.\n(3) The hearsay rule does not apply to evidence of a previous\nrepresentation made in the course of giving evidence in an Australian\nor overseas proceeding if, in the proceeding, the defendant in the\nproceeding to which this section is being applied—\n(a) cross-examined the person who made the representation about\nit; or\n(b) had a reasonable opportunity to cross-examine the person who\nmade the representation about it.\n(4) If there is more than 1 defendant in the criminal proceeding, evidence\nof a previous representation that—\n(a) is given in an Australian or overseas proceeding; and\n(b) is admitted into evidence in the criminal proceeding because of\nsubsection (3);\ncannot be used against a defendant who did not cross-examine, and\ndid not have a reasonable opportunity to cross-examine, the person\nabout the representation.\n\n(5) For subsection (3) and subsection (4), a defendant is taken to have\nhad a reasonable opportunity to cross-examine a person if the\ndefendant was not present at a time when the cross-examination of a\nperson might have been conducted but—\n(a) could reasonably have been present at the time; and\n(b) if present could have cross-examined the person.\n(6) Evidence of the making of a representation to which subsection (3)\napplies may be presented by producing a transcript, or a recording, of\nthe representation that is authenticated by—\n(a) the person to whom, or the court or other body to which, the\nrepresentation was made; or\n(b) if applicable, the registrar or other proper officer of the court or\nother body to which the representation was made; or\n(c) the entity responsible for producing the transcript or recording.\n(7) Without limiting subsection (2) (d), a representation is taken for\nsubsection (2) (d) to be against the interests of the person who made\nit if it tends—\n(a) to damage the person’s reputation; or\n(b) to show that the person has committed an offence for which the\nperson has not been convicted; or\n(c) to show that the person is liable in an action for damages.\n(8) The hearsay rule does not apply to—\n(a) evidence of a previous representation presented by a defendant\nif the evidence is given by a person who saw, heard or otherwise\nperceived the representation being made; or\n\n(b) a document tendered as evidence by a defendant so far as it\ncontains a previous representation, or another representation to\nwhich it is reasonably necessary to refer in order to understand\nthe representation.\n(9) If evidence of a previous representation about a matter has been\npresented by a defendant and has been admitted, the hearsay rule does\nnot apply to evidence of another representation about the matter\n(a) is presented by another party; and\n(b) is given by a person who saw, heard or otherwise perceived the\nother representation being made.\n","sortOrder":69},{"sectionNumber":"66","sectionType":"section","heading":"Exception—criminal proceedings if maker available","content":"66 Exception—criminal proceedings if maker available\n(1) This section applies in a criminal proceeding if a person who made a\nprevious representation is available to give evidence about an asserted\nfact.\n(2) If the person has been or is to be called to give evidence, the hearsay\nrule does not apply to evidence of the representation that is given\nby—\n(a) the person; or\n(b) a person who saw, heard or otherwise perceived the\nrepresentation being made;\nif, when the representation was made, the happening of the asserted\nfact was fresh in the memory of the person who made the\nrepresentation.\n\n(3) In deciding whether the happening of the asserted fact was fresh in\nthe memory of a person, the court may take into account all matters\nthat it considers are relevant to the question, including—\n(a) the nature of the event concerned; and\n(b) the age and health of the person; and\n(c) the time between the happening of the asserted fact and the\nmaking of the representation.\nNote Subsection (3) was inserted as a response to the decision of the High\nCourt in Graham v The Queen (1998) 195 CLR 606.\n(4) If a representation was made for the purpose of indicating the\nevidence that the person who made it would be able to give in an\nAustralian or overseas proceeding, subsection (2) does not apply to\nevidence presented by the prosecutor of the representation unless the\nrepresentation is about the identity of a person, place or thing.\n(5) A document containing a representation to which subsection (2)\napplies must not be tendered before the conclusion of the\nexamination-in-chief of the person who made the representation,\n","sortOrder":70},{"sectionNumber":"66A","sectionType":"section","heading":"Exception—contemporaneous statements about a","content":"66A Exception—contemporaneous statements about a\nperson’s health etc\nThe hearsay rule does not apply to evidence of a previous\nrepresentation made by a person if the representation was a\ncontemporaneous representation about the person’s health, feelings,\nsensations, intention, knowledge or state of mind.\n","sortOrder":71},{"sectionNumber":"67","sectionType":"section","heading":"Notice to be given","content":"67 Notice to be given\n(1) A relevant exception does not apply to evidence presented by a party\nunless the party has given reasonable notice in writing to each other\nparty of the party’s intention to present the evidence.\n\n(2) A notice given under subsection (1) must be given in accordance with\nany regulation or rules of court made for this section.\n(3) The notice must state—\n(a) each relevant exception on which the party intends to rely in\narguing that the hearsay rule does not apply to the evidence; and\n(b) if section 64 (2) (Exception—civil proceedings if maker\navailable) is to be relied on—the grounds, stated in the section,\non which the party intends to rely.\n(4) Despite subsection (1), if notice has not been given, the court may, on\nthe application of a party, direct that 1 or more relevant exceptions\napply despite the party’s failure to give notice.\n(5) The direction—\n(a) is subject to the conditions (if any) the court thinks fit; and\n(b) in particular, may provide that, in relation to stated evidence,\n1 or more relevant exceptions apply with the modifications the\ncourt states.\nrelevant exception means—\n(a) section 63 (2) (Exception—civil proceedings if maker not\navailable); or\n(b) section 64 (2) (Exception—civil proceedings if maker\navailable); or\n(c) section 65 (2), (3) and (8) (Exception—criminal proceedings if\nmaker not available).\n\n","sortOrder":72},{"sectionNumber":"68","sectionType":"section","heading":"Objections to tender of hearsay evidence in civil","content":"68 Objections to tender of hearsay evidence in civil\nproceedings if maker available\n(1) In a civil proceeding, if the notice discloses that it is not intended to\ncall the person who made the previous representation because it—\n(a) would cause undue expense or undue delay; or\n(b) would not be reasonably practicable;\na party may, not later than 21 days after the day notice has been given,\nobject to the tender of the evidence, or of a stated part of the evidence.\n(2) The objection must be made by giving to each other party a written\nnotice setting out the grounds on which the objection is made.\n(3) The court may, on the application of a party, decide the objection at\nor before the hearing.\n(4) If the objection is unreasonable, the court may order that, in any\nevent, the party objecting must bear the costs incurred by another\nparty—\n(a) in relation to the objection; and\n(b) in calling the person who made the representation to give\nevidence.\nNote Subsection (4) differs from the Commonwealth Act, s 68 (4) because of\nthe different way costs are worked out by ACT courts.\n","sortOrder":73},{"sectionNumber":"69","sectionType":"section","heading":"Exception—business records","content":"69 Exception—business records\n(1) This section applies to a document that—\n(a) either—\n(i) is or forms part of a record belonging to or kept by an entity\nin the course of, or for the purposes of, a business; or\n(ii) at any time was or formed part of the record; and\n\n(b) contains a previous representation made or recorded in the\ndocument in the course of, or for the purposes of, the business.\n(2) The hearsay rule does not apply to the document (so far as it contains\nthe representation) if the representation was made—\n(a) by a person who had or might reasonably be supposed to have\nhad personal knowledge of the asserted fact; or\n(b) on the basis of information directly or indirectly supplied by a\nperson who had or might reasonably be supposed to have had\npersonal knowledge of the asserted fact.\n(3) Subsection (2) does not apply if the representation—\n(a) was prepared or obtained for the purpose of conducting, or for\nor in contemplation of or in connection with, an Australian or\noverseas proceeding; or\n(b) was made in connection with an investigation relating or leading\nto a criminal proceeding.\n(4) If—\n(a) the happening of an event of a particular kind is in question; and\n(b) in the course of a business, a system has been followed of\nmaking and keeping a record of the happening of all events of\nthat kind;\nthe hearsay rule does not apply to evidence that tends to prove that\nthere is no record kept, in accordance with the system, of the\nhappening of the event.\n\n(5) For this section, a person is taken to have had personal knowledge of\na fact if the person’s knowledge of the fact was or might reasonably\nbe supposed to have been based on what the person saw, heard or\notherwise perceived (other than a previous representation made by a\nperson about the fact).\nNote 1 Sections 48, 49, 50, 146, 147 and 150 (1) are relevant to the mode of\nproof, and authentication, of business records.\nNote 2 The Commonwealth Act, s 182 gives the Commonwealth Act, s 69 a\n","sortOrder":74},{"sectionNumber":"70","sectionType":"section","heading":"Exception—contents of tags, labels and writing","content":"70 Exception—contents of tags, labels and writing\nThe hearsay rule does not apply to a tag or label attached to, or writing\nplaced on, an object (including a document) if the tag or label or\nwriting may reasonably be supposed to have been attached or\nplaced—\n(a) in the course of a business; and\n(b) for the purpose of describing or stating the identity, nature,\nownership, destination, origin or weight of the object, or of the\ncontents (if any) of the object.\nNote The Commonwealth Act, s 70 includes an additional subsection\nproviding that the exception does not apply to customs and excise\nprosecutions. The Commonwealth Act, s 5 extends the application of the\nsubsection to proceedings in all Australian courts.\n","sortOrder":75},{"sectionNumber":"71","sectionType":"section","heading":"Exception—electronic communications","content":"71 Exception—electronic communications\nThe hearsay rule does not apply to a representation contained in a\ndocument recording an electronic communication so far as the\nrepresentation is a representation as to—\n(a) the identity of the person from whom or on whose behalf the\ncommunication was sent; or\n(b) the date or time when the communication was sent; or\n\n(c) the communication’s destination or the identity of the person to\nwhom the communication was addressed.\nNote 1 Div 4.3.3 contains presumptions about electronic communications.\nNote 2 The Commonwealth Act, s 182 gives the Commonwealth Act, s 71 a\nNote 3 Electronic communication—see the dictionary.\n","sortOrder":76},{"sectionNumber":"72","sectionType":"section","heading":"Exception—Aboriginal and Torres Strait Islander","content":"72 Exception—Aboriginal and Torres Strait Islander\ntraditional laws and customs\nThe hearsay rule does not apply to evidence of a representation about\nthe existence or non-existence, or the content, of the traditional laws\nand customs of an Aboriginal or Torres Strait Islander group.\n","sortOrder":77},{"sectionNumber":"73","sectionType":"section","heading":"Exception—reputation as to relationships and age","content":"73 Exception—reputation as to relationships and age\n(1) The hearsay rule does not apply to evidence of reputation about—\n(a) whether a person was, at a particular time or at any time, a\nmarried person; or\n(b) whether 2 people cohabiting at a particular time were married to\neach other at the time; or\n(c) a person’s age; or\n(d) family history or a family relationship.\n(2) In a criminal proceeding, subsection (1) does not apply to evidence\npresented by a defendant unless—\n(a) it tends to contradict evidence mentioned in subsection (1) that\nhas been admitted; or\n(b) the defendant has given reasonable notice in writing to each\nother party of the defendant’s intention to present the evidence.\n(3) In a criminal proceeding, subsection (1) does not apply to evidence\npresented by the prosecutor unless it tends to contradict evidence\nmentioned in subsection (1) that has been admitted.\n\n","sortOrder":78},{"sectionNumber":"74","sectionType":"section","heading":"Exception—reputation of public or general rights","content":"74 Exception—reputation of public or general rights\n(1) The hearsay rule does not apply to evidence of reputation about the\nexistence, nature or extent of a public or general right.\n(2) In a criminal proceeding, subsection (1) does not apply to evidence\npresented by the prosecutor unless it tends to contradict evidence\nmentioned in subsection (1) that has been admitted.\n","sortOrder":79},{"sectionNumber":"75","sectionType":"section","heading":"Exception—interlocutory proceedings","content":"75 Exception—interlocutory proceedings\nIn an interlocutory proceeding, the hearsay rule does not apply to\nevidence if the party who presents it also presents evidence of its\nsource.\n\n","sortOrder":80},{"sectionNumber":"76","sectionType":"section","heading":"The opinion rule","content":"76 The opinion rule\n(1) Evidence of an opinion is not admissible to prove the existence of a\nfact about the existence of which the opinion was expressed.\n(2) Subsection (1) does not apply to evidence of an opinion contained in\na certificate or other document given or made under a regulation made\nunder an Act other than this Act to the extent to which the regulation\nprovides that the certificate or other document has evidentiary effect.\nNote Specific exceptions to the opinion rule are as follows:\n• summaries of voluminous or complex documents (s 50 (3))\n• evidence relevant otherwise than as opinion evidence (s 77)\n• lay opinion (s 78)\n• Aboriginal and Torres Strait Islander traditional laws and customs\n(s 78A)\n• expert opinion (s 79)\n• admissions (s 81)\n• exceptions to the rule excluding evidence of judgments and\nconvictions (s 92 (3))\n• character of and expert opinion about accused people (s 110 and\ns 111).\n1 P sues D, her doctor, for the negligent performance of a surgical operation.\nUnless an exception to the opinion rule applies, P’s neighbour, W, who had\nthe same operation, cannot give evidence of his opinion that D had not\nperformed the operation as well as his own.\n2 P considers that electrical work that D, an electrician, has done for her is\nunsatisfactory. Unless an exception to the opinion rule applies, P cannot give\nevidence of her opinion that D does not have the necessary skills to do\nelectrical work.\n\nOpinion Part 3.3\n","sortOrder":81},{"sectionNumber":"77","sectionType":"section","heading":"Exception—evidence relevant otherwise than as opinion","content":"77 Exception—evidence relevant otherwise than as opinion\nevidence\nThe opinion rule does not apply to evidence of an opinion that is\nadmitted because it is relevant for a purpose other than proof of the\nexistence of a fact about the existence of which the opinion was\nexpressed.\n","sortOrder":82},{"sectionNumber":"78","sectionType":"section","heading":"Exception—lay opinions","content":"78 Exception—lay opinions\nThe opinion rule does not apply to evidence of an opinion expressed\nby a person if—\n(a) the opinion is based on what the person saw, heard or otherwise\nperceived about a matter or event; and\n(b) evidence of the opinion is necessary to obtain an adequate\naccount or understanding of the person’s perception of the\nmatter or event.\n","sortOrder":83},{"sectionNumber":"78A","sectionType":"section","heading":"Exception—Aboriginal and Torres Strait Islander","content":"78A Exception—Aboriginal and Torres Strait Islander\ntraditional laws and customs\nThe opinion rule does not apply to evidence of an opinion expressed\nby a member of an Aboriginal or Torres Strait Islander group about\nthe existence or non-existence, or the content, of the traditional laws\nand customs of the group.\n","sortOrder":84},{"sectionNumber":"79","sectionType":"section","heading":"Exception—opinions based on specialised knowledge","content":"79 Exception—opinions based on specialised knowledge\n(1) If a person has specialised knowledge based on the person’s training,\nstudy or experience, the opinion rule does not apply to evidence of\nthe person’s opinion that is completely or substantially based on that\nknowledge.\n\n(2) To remove any doubt, and without limiting subsection (1)—\n(a) a reference in that subsection to specialised knowledge includes\na reference to specialised knowledge of child development and\nchild behaviour (including specialised knowledge of the impact\nof sexual abuse on children and their development and\nbehaviour during and following the abuse); and\n(b) a reference in that subsection to an opinion of a person includes,\nif the person has specialised knowledge mentioned in paragraph\n(a), a reference to an opinion relating to either or both of the\n(i) the development and behaviour of children generally;\n(ii) the development and behaviour of children who have been\nvictims of sexual offences, or offences similar to sexual\noffences.\n","sortOrder":85},{"sectionNumber":"80","sectionType":"section","heading":"Ultimate issue and common knowledge rules abolished","content":"80 Ultimate issue and common knowledge rules abolished\nEvidence of an opinion is not inadmissible only because it is about—\n(a) a fact in issue or an ultimate issue; or\n(b) a matter of common knowledge.\n\nNote Admission—see the dictionary.\n","sortOrder":86},{"sectionNumber":"81","sectionType":"section","heading":"Hearsay and opinion rules—exception for admissions","content":"81 Hearsay and opinion rules—exception for admissions\nand related representations\n(1) The hearsay rule and opinion rule do not apply to evidence of an\n(2) The hearsay rule and opinion rule do not apply to evidence of a\nprevious representation—\n(a) that was made in relation to an admission at the time the\nadmission was made, or shortly before or after that time; and\n(b) to which it is reasonably necessary to refer in order to\nunderstand the admission.\nNote Specific exclusionary rules relating to admissions are as follows:\n• evidence of admissions that is not first-hand (s 82)\n• use of admissions against third parties (s 83)\n• admissions influenced by violence etc (s 84)\n• unreliable admissions of accused people (s 85)\n• records of oral questioning of accused people (s 86).\nD admits to W, his best friend, that he sexually assaulted V. In D’s trial for the\nsexual assault, the prosecution may lead evidence from W—\n(a) that D made the admission to W as proof of the truth of the admission; and\n(b) that W formed the opinion that D was sane when he made the admission.\n","sortOrder":87},{"sectionNumber":"82","sectionType":"section","heading":"Exclusion of evidence of admissions that is not first-hand","content":"82 Exclusion of evidence of admissions that is not first-hand\nSection 81 does not prevent the application of the hearsay rule to\nevidence of an admission unless—\n(a) it is given by a person who saw, heard or otherwise perceived\nthe admission being made; or\n\n(b) it is a document in which the admission is made.\nNote Section 60 (Exception—evidence relevant for a non-hearsay purpose)\ndoes not apply in a criminal proceeding to evidence of an admission.\n","sortOrder":88},{"sectionNumber":"83","sectionType":"section","heading":"Exclusion of evidence of admissions as against third","content":"83 Exclusion of evidence of admissions as against third\nparties\n(1) Section 81 does not prevent the application of the hearsay rule or\nopinion rule to evidence of an admission in relation to the case of a\nthird party.\n(2) The evidence may be used in relation to the case of a third party if the\nthird party consents.\n(3) Consent cannot be given in relation to part only of the evidence.\nthird party means a party to the proceeding, other than the party\nwho—\n(a) made the admission; or\n(b) presented the evidence.\n","sortOrder":89},{"sectionNumber":"84","sectionType":"section","heading":"Exclusion of admissions influenced by violence and","content":"84 Exclusion of admissions influenced by violence and\ncertain other conduct\n(1) Evidence of an admission is not admissible unless the court is\nsatisfied that the admission, and the making of the admission, were\nnot influenced by—\n(a) violent, oppressive, inhuman or degrading conduct, whether\ntowards the person who made the admission or towards\nsomeone else; or\n(b) a threat of conduct mentioned in paragraph (a).\n\n(2) Subsection (1) only applies if the party against whom evidence of the\nadmission is presented has raised in the proceeding an issue about\nwhether the admission or its making were influenced in a way\nmentioned in subsection (1).\n","sortOrder":90},{"sectionNumber":"85","sectionType":"section","heading":"Criminal proceedings—reliability of admissions by","content":"85 Criminal proceedings—reliability of admissions by\ndefendants\n(1) This section applies only in a criminal proceeding and only to\nevidence of an admission made by a defendant—\n(a) to, or in the presence of, an investigating official who at the time\nwas exercising functions in connection with the investigation of\nthe commission, or possible commission, of an offence; or\n(b) as a result of an act of someone else who was, and who the\ndefendant knew or reasonably believed to be, capable of\ninfluencing the decision whether a prosecution of the defendant\nshould be brought or should be continued.\nNote Subsection (1) was inserted as a response to the decision of the High\nCourt of in Kelly v The Queen (2004) 218 CLR 216.\n(2) Evidence of the admission is not admissible unless the circumstances\nin which the admission was made make it unlikely that the truth of\nthe admission was adversely affected.\n(3) Without limiting the matters that the court may take into account for\nsubsection (2), it must take into account—\n(a) any relevant condition or characteristic of the person who made\nthe admission, including age, personality and education and any\nmental, intellectual or physical disability to which the person is\nor appears to be subject; and\n(b) if the admission was made in response to questioning—\n(i) the nature of the questions and the way in which they were\nput; and\n\n(ii) the nature of any threat, promise or other inducement made\nto the person questioned.\n","sortOrder":91},{"sectionNumber":"86","sectionType":"section","heading":"Exclusion of records of oral questioning","content":"86 Exclusion of records of oral questioning\n(1) This section applies only in a criminal proceeding and only if an oral\nadmission was made by a defendant to an investigating official in\nresponse to a question put or representation made by the official.\n(2) A document prepared by or on behalf of the official is not admissible\nto prove the contents of the question, representation or response\nunless the defendant has acknowledged that the document is a true\nrecord of the question, representation or response.\n(3) The acknowledgment must be made by signing, initialling or\notherwise marking the document.\ndocument does not include the following:\n(a) a sound recording, or a transcript of a sound recording;\n(b) a recording of visual images and sounds, or a transcript of the\nrecorded sounds.\n","sortOrder":92},{"sectionNumber":"87","sectionType":"section","heading":"Admissions made with authority","content":"87 Admissions made with authority\n(1) For the purpose of deciding whether a previous representation made\nby a person is also taken to be an admission by a party, the court must\nadmit the representation if it is reasonably open to find that—\n(a) when the representation was made, the person had authority to\nmake statements on behalf of the party in relation to the matter\nin relation to which the representation was made; or\n(b) when the representation was made, the person was an employee\nof the party, or had authority otherwise to act for the party, and\nthe representation related to a matter within the scope of the\nperson’s employment or authority; or\n\n(c) the representation was made by the person in furtherance of a\ncommon purpose (whether lawful or not) that the person had\nwith the party or 1 or more people including the party.\n(2) For this section, the hearsay rule does not apply to a previous\nrepresentation made by a person that tends to prove—\n(a) that the person had authority to make statements on behalf of\nsomeone else in relation to a matter; or\n(b) that the person was an employee of someone else or had\nauthority otherwise to act for someone else; or\n(c) the scope of the person’s employment or authority.\n","sortOrder":93},{"sectionNumber":"88","sectionType":"section","heading":"Proof of admissions","content":"88 Proof of admissions\nFor the purpose of deciding whether evidence of an admission is\nadmissible, the court must find that a particular person made the\nadmission if it is reasonably open to find that the person made the\n","sortOrder":94},{"sectionNumber":"89","sectionType":"section","heading":"Evidence of silence","content":"89 Evidence of silence\n(1) In a criminal proceeding, an inference unfavourable to a party must\nnot be drawn from evidence that the party or someone else failed—\n(a) to answer 1 or more questions; or\n(b) to respond to a representation;\nput or made to the party or other person by an investigating official\nwho at the time was exercising functions in connection with the\ninvestigation of the commission, or possible commission, of an\noffence.\n(2) Evidence of that kind is not admissible if it can only be used to draw\nan inference mentioned in subsection (1).\n\n(3) Subsection (1) does not prevent use of the evidence to prove that the\nparty or other person failed to answer the question or to respond to\nthe representation if the failure is a fact in issue in the proceeding.\ninference includes the following:\n(a) an inference of consciousness of guilt;\n(b) an inference relevant to a party’s credibility.\n","sortOrder":95},{"sectionNumber":"90","sectionType":"section","heading":"Discretion to exclude admissions","content":"90 Discretion to exclude admissions\nIn a criminal proceeding, the court may refuse to admit evidence of\nan admission, or refuse to admit the evidence to prove a particular\nfact, if—\n(a) the evidence is presented by the prosecution; and\n(b) having regard to the circumstances in which the admission was\nmade, it would be unfair to a defendant to use the evidence.\nNote Pt 3.11 contains other exclusionary discretions that apply to admissions.\n\nEvidence of judgments and convictions Part 3.5\n","sortOrder":96},{"sectionNumber":"Part 3","sectionType":"part","heading":"5 Evidence of judgments and","content":"Part 3.5 Evidence of judgments and\nconvictions\n","sortOrder":97},{"sectionNumber":"91","sectionType":"section","heading":"Exclusion of evidence of judgments and convictions","content":"91 Exclusion of evidence of judgments and convictions\n(1) Evidence of the decision, or of a finding of fact, in an Australian or\noverseas proceeding is not admissible to prove the existence of a fact\nthat was in issue in the proceeding.\n(2) Evidence that, under this part, is not admissible to prove the existence\nof a fact may not be used to prove the fact even if it is relevant for\nanother purpose.\nNote Section 178 (Convictions, acquittals and other judicial proceedings)\nprovides for certificate evidence of decisions.\n","sortOrder":98},{"sectionNumber":"92","sectionType":"section","heading":"Exceptions","content":"92 Exceptions\n(1) Section 91 (1) does not prevent the admission or use of evidence of\nthe grant of probate, letters of administration or a similar order of a\ncourt to prove—\n(a) the death, or date of death, of a person; or\n(b) the proper execution of a testamentary document.\n(2) In a civil proceeding, section 91 (1) does not prevent the admission\nor use of evidence that a party, or a person through or under whom a\nparty claims, has been convicted of an offence, other than a\nconviction—\n(a) in relation to which a review or appeal (however described) has\nbeen started but not finally decided; or\n(b) that has been quashed or set aside; or\n(c) in relation to which a pardon has been given.\n(3) The hearsay rule and the opinion rule do not apply to evidence\nmentioned in this section.\n\nPart 3.5 Evidence of judgments and convictions\n","sortOrder":99},{"sectionNumber":"93","sectionType":"section","heading":"Savings","content":"93 Savings\nThis part does not affect the operation of—\n(a) a law that relates to the admissibility or effect of evidence of a\nconviction tendered in a proceeding (including a criminal\nproceeding) for defamation; or\n(b) a judgment in rem; or\n(c) the law relating to res judicata or issue estoppel.\n\n","sortOrder":100},{"sectionNumber":"94","sectionType":"section","heading":"Application—pt 3.6","content":"94 Application—pt 3.6\n(1) This part does not apply to evidence that relates only to the witness’s\ncredibility.\n(2) This part does not apply so far as a proceeding relates to bail or\nsentencing.\n(3) This part does not apply to evidence of—\n(a) the character, reputation or conduct of a person; or\n(b) a tendency that a person has or had;\nif that character, reputation, conduct or tendency is a fact in issue.\n(4) To remove any doubt, any principle or rule of the common law or\nequity that prevents or restricts the admissibility of evidence about\npropensity or similar fact evidence in a proceeding is not relevant\nwhen applying this part to tendency evidence or coincidence evidence\nabout a defendant.\n(5) In determining the probative value of tendency evidence or\ncoincidence evidence for section 97 (1) (b), 97A (4), 98 (1) (b)\nor 101 (2), it is not open to the court to have regard to the possibility\nthat the evidence may be the result of collusion, concoction or\ncontamination.\n","sortOrder":101},{"sectionNumber":"95","sectionType":"section","heading":"Use of evidence for other purposes","content":"95 Use of evidence for other purposes\n(1) Evidence that under this part is not admissible to prove a particular\nmatter must not be used to prove the matter even if it is relevant for\nanother purpose.\n(2) Evidence that under this part cannot be used against a party to prove\na particular matter must not be used against the party to prove the\nmatter even if it is relevant for another purpose.\n\n","sortOrder":102},{"sectionNumber":"96","sectionType":"section","heading":"Failure to act","content":"96 Failure to act\nA reference in this part to doing an act includes a reference to failing\nto do that act.\n","sortOrder":103},{"sectionNumber":"97","sectionType":"section","heading":"The tendency rule","content":"97 The tendency rule\n(1) Evidence of the character, reputation or conduct of a person, or a\ntendency that a person has or had, is not admissible to prove that a\nperson has or had a tendency (whether because of the person’s\ncharacter or otherwise) to act in a particular way, or to have a\nparticular state of mind unless—\n(a) the party seeking to present the evidence gave reasonable notice\nin writing to each other party of the party’s intention to present\nthe evidence; and\n(b) the court thinks that the evidence will, either by itself or having\nregard to other evidence presented or to be presented by the\nparty seeking to present the evidence, have significant probative\nvalue.\n(2) Subsection (1) (a) does not apply if—\n(a) the evidence is presented in accordance with a direction made\nby the court under section 100 (Court may dispense with notice\nrequirements); or\n(b) the evidence is presented to explain or contradict tendency\nevidence presented by another party.\nNote The tendency rule is subject to specific exceptions about the character of\nand expert opinion about accused people (s 110 and s 111). Other\nprovisions of this Act, or of other laws, may operate as further exceptions.\n\n","sortOrder":104},{"sectionNumber":"97A","sectionType":"section","heading":"Admissibility of tendency evidence in proceedings","content":"97A Admissibility of tendency evidence in proceedings\ninvolving child sexual offences\n(1) This section applies in a criminal proceeding in which the\ncommission by the defendant of an act that constitutes, or may\nconstitute, a child sexual offence is a fact in issue.\n(2) It is presumed that the following tendency evidence about the\ndefendant will have significant probative value for section 97 (1) (b)\nand section 101 (2):\n(a) tendency evidence about the sexual interest the defendant has or\nhad in children (even if the defendant has not acted on the\ninterest);\n(b) tendency evidence about the defendant acting on a sexual\ninterest the defendant has or had in children.\n(3) Subsection (2) applies whether or not the sexual interest or act to\nwhich the tendency evidence relates was directed at a complainant in\nthe proceeding, or any other child or children generally.\n(4) Despite subsection (2), the court may determine that the tendency\nevidence does not have significant probative value if it is satisfied that\nthere are sufficient grounds to do so.\n(5) The following matters (whether considered individually or in\ncombination) are not to be taken into account when determining\nwhether there are sufficient grounds for subsection (4) unless the\ncourt considers there are exceptional circumstances in relation to\nthose matters (whether considered individually or in combination) to\nwarrant taking them into account:\n(a) the sexual interest or act to which the tendency evidence relates\n(the tendency sexual interest or act) is different from the sexual\ninterest or act alleged in the proceeding (the alleged sexual\ninterest or act);\n\n(b) the circumstances in which the tendency sexual interest or act\noccurred are different from circumstances in which the alleged\nsexual interest or act occurred;\n(c) the personal characteristics of the subject of the tendency sexual\ninterest or act (for example, the subject’s age, sex or gender) are\ndifferent to those of the subject of the alleged sexual interest or\nact;\n(d) the relationship between the defendant and the subject of the\ntendency sexual interest or act is different from the relationship\nbetween the defendant and the subject of the alleged sexual\ninterest or act;\n(e) the period of time between the occurrence of the tendency sexual\ninterest or act and the occurrence of the alleged sexual interest\nor act;\n(f) the tendency sexual interest or act and alleged sexual interest or\nact do not share distinctive or unusual features;\n(g) the level of generality of the tendency to which the tendency\nevidence relates.\nchild sexual offence—\n(a) means each of the following offences (however described and\nregardless of when it occurred):\n(i) an offence against, or arising under, a territory law\ninvolving sexual intercourse with, or any other sexual\noffence against, a person who was a child at the time of the\noffence;\n(ii) an offence against, or arising under, a territory law\ninvolving an unlawful sexual act with, or directed towards,\na person who was a child at the time of the offence;\n\n(iii) an offence against, or arising under, a law of the\nCommonwealth, a State or a foreign country that, if\ncommitted in the Territory, would have been an offence of\na kind mentioned in subparagraph (i) or (ii); but\nNote State includes the Northern Territory (see Legislation Act,\ndict, pt 1).\n(b) does not include conduct of a person that has ceased to be an\noffence since the time when the person engaged in the conduct.\n","sortOrder":105},{"sectionNumber":"98","sectionType":"section","heading":"The coincidence rule","content":"98 The coincidence rule\n(1) Evidence that 2 or more events happened is not admissible to prove\nthat a person did a particular act or had a particular state of mind on\nthe basis that, having regard to any similarities in the events or the\ncircumstances in which they happened, or any similarities in both the\nevents and the circumstances in which they happened, it is\nimprobable that the events happened coincidentally unless—\n(a) the party seeking to present the evidence gave reasonable notice\nin writing to each other party of the party’s intention to present\nthe evidence; and\n(b) the court thinks that the evidence will, either by itself or having\nregard to other evidence presented or to be presented by the\nparty seeking to present the evidence, have significant probative\nvalue.\nNote One of the events referred to in s (1) may be an event the happening of\nwhich is a fact in issue in the proceeding.\n(1A) To remove any doubt, subsection (1) includes the use of evidence\nfrom 2 or more witnesses claiming they are victims of offences\ncommitted by a person who is a defendant in a criminal proceeding\nto prove, on the basis of similarities in the claimed acts or the\ncircumstances in which they occurred, that the defendant did an act\nin issue in the proceeding.\n\n(2) Subsection (1) (a) does not apply if—\n(a) the evidence is presented in accordance with a direction made\nby the court under section 100 (Court may dispense with notice\nrequirements); or\n(b) the evidence is presented to explain or contradict coincidence\nevidence presented by another party.\nNote Other provisions of this Act, or of other laws, may operate as exceptions\nto the coincidence rule.\n","sortOrder":106},{"sectionNumber":"99","sectionType":"section","heading":"Requirements for notices","content":"99 Requirements for notices\nA notice given under section 97 (The tendency rule) or section 98\n(The coincidence rule) must be given in accordance with any\nregulation or rules of court made for this section.\n","sortOrder":107},{"sectionNumber":"100","sectionType":"section","heading":"Court may dispense with notice requirements","content":"100 Court may dispense with notice requirements\n(1) The court may, on the application of a party, direct that the tendency\nrule is not to apply to particular tendency evidence despite the party’s\nfailure to give notice under section 97 (The tendency rule).\n(2) The court may, on the application of a party, direct that the\ncoincidence rule is not to apply to particular coincidence evidence\ndespite the party’s failure to give notice under section 98 (The\ncoincidence rule).\n(3) The application may be made either before or after the time by which\nthe party would, apart from this section, be required to give, or to have\ngiven, the notice.\n(4) In a civil proceeding, the party’s application may be made without\nnotice of it having been given to 1 or more of the other parties.\n(5) The direction—\n(a) is subject to the conditions (if any) the court thinks fit; and\n(b) may be given at or before the hearing.\n\n(6) Without limiting the court’s power to impose conditions under this\nsection, the conditions may include 1 or more of the following:\n(a) a condition that the party give notice of its intention to present\nthe evidence to a stated party, or to each party other than a stated\nparty;\n(b) a condition that the party give the notice only in relation to stated\ntendency evidence, or all tendency evidence that the party\nintends to present other than stated tendency evidence;\n(c) a condition that the party give the notice only in relation to stated\ncoincidence evidence, or all coincidence evidence that the party\nintends to present other than stated coincidence evidence.\n","sortOrder":108},{"sectionNumber":"101","sectionType":"section","heading":"Further restrictions on tendency evidence and","content":"101 Further restrictions on tendency evidence and\ncoincidence evidence presented by prosecution\n(1) This section applies only in a criminal proceeding and applies in\naddition to section 97 (The tendency rule) and section 98 (The\ncoincidence rule).\n(2) Tendency evidence about a defendant, or coincidence evidence about\na defendant, that is presented by the prosecution cannot be used\nagainst the defendant unless the probative value of the evidence\noutweighs the danger of unfair prejudice to the defendant.\n(3) This section does not apply to tendency evidence that the prosecution\npresents to explain or contradict tendency evidence presented by the\ndefendant.\n(4) This section does not apply to coincidence evidence that the\nprosecution presents to explain or contradict coincidence evidence\npresented by the defendant.\n\n","sortOrder":109},{"sectionNumber":"101A","sectionType":"section","heading":"Credibility evidence","content":"101A Credibility evidence\nCredibility evidence, in relation to a witness or someone else, is\nevidence relevant to the credibility of the witness or person that—\n(a) is relevant only because it affects the assessment of the\ncredibility of the witness or person; or\n(b) is relevant—\n(i) because it affects the assessment of the credibility of the\nwitness or person; and\n(ii) for some other purpose for which it is not admissible, or\ncannot be used, because of a provision of parts 3.2 to 3.6.\nNote 1 Section 60 and s 77 will not affect the application of par (b), because they\ncannot apply to evidence that is yet to be admitted.\nNote 2 Section 101A was inserted as a response to the decision of the High Court\nin Adam v The Queen (2001) 207 CLR 96.\n","sortOrder":110},{"sectionNumber":"102","sectionType":"section","heading":"The credibility rule","content":"102 The credibility rule\nCredibility evidence about a witness is not admissible.\nNote 1 Specific exceptions to the credibility rule are as follows:\n• evidence given in cross-examination (s 103 and s 104)\n• evidence in rebuttal of denials (s 106)\n• evidence to re-establish credibility (s 108)\n• evidence of people with specialised knowledge (s 108C)\n• character of accused people (s 110).\n\nCredibility of witnesses Division 3.7.2\nNote 2 Section 108A and s 108B deal with the admission of credibility evidence\nabout a person who has made a previous representation but is not a\nwitness.\n","sortOrder":111},{"sectionNumber":"103","sectionType":"section","heading":"Exception—cross-examination as to credibility","content":"103 Exception—cross-examination as to credibility\n(1) The credibility rule does not apply to evidence given by a witness in\ncross-examination if the evidence could substantially affect the\nassessment of the witness’s credibility.\n(2) Without limiting the matters to which the court may have regard for\nsubsection (1), it must have regard to—\n(a) whether the evidence tends to prove that the witness knowingly\nor recklessly made a false representation when the witness was\nunder an obligation to tell the truth; and\n(b) the period that has elapsed since the acts or events to which the\nevidence relates were done or happened.\n","sortOrder":112},{"sectionNumber":"104","sectionType":"section","heading":"Further protections—cross-examination as to credibility","content":"104 Further protections—cross-examination as to credibility\n(1) This section applies only to credibility evidence in a criminal\nproceeding and applies in addition to section 103.\n(2) A defendant must not be cross-examined about a matter that is\nrelevant to the assessment of the defendant’s credibility, unless the\ncourt gives leave.\n(3) Despite subsection (2), leave is not required for cross-examination by\nthe prosecutor about whether the defendant—\n(a) is biased or has a motive to be untruthful; or\n(b) is, or was, unable to be aware of or recall matters to which the\ndefendant’s evidence relates; or\n(c) has made a prior inconsistent statement.\n\n(4) The prosecutor must not be given leave under subsection (2) unless\nevidence presented by the defendant has been admitted that—\n(a) tends to prove that a witness called by the prosecutor has a\ntendency to be untruthful; and\n(b) is relevant solely or mainly to the witness’s credibility.\n(5) A reference in subsection (4) to evidence does not include a reference\nto evidence of conduct in relation to—\n(a) the events in relation to which the defendant is being prosecuted;\nor\n(b) the investigation of the offence for which the defendant is being\nprosecuted.\n(6) Leave must not be given for cross-examination by another defendant\nunless—\n(a) the evidence that the defendant to be cross-examined has given\nincludes evidence adverse to the defendant seeking leave to\ncross-examine; and\n(b) that evidence has been admitted.\n","sortOrder":113},{"sectionNumber":"106","sectionType":"section","heading":"Exception—rebutting denials by other evidence","content":"106 Exception—rebutting denials by other evidence\n(1) The credibility rule does not apply to evidence that is relevant to a\nwitness’s credibility and that is presented otherwise than from the\nwitness if—\n(a) in cross-examination of the witness—\n(i) the substance of the evidence was put to the witness; and\n(ii) the witness denied, or did not admit or agree to, the\nsubstance of the evidence; and\n(b) the court gives leave to present the evidence.\n\nCredibility of witnesses Division 3.7.2\n(2) Leave under subsection (1) (b) is not required if the evidence tends to\nprove that the witness—\n(a) is biased or has a motive for being untruthful; or\n(b) has been convicted of an offence, including an offence against\nthe law of a foreign country; or\n(c) has made a prior inconsistent statement; or\n(d) is, or was, unable to be aware of matters to which the witness’s\nevidence relates; or\n(e) has knowingly or recklessly made a false representation while\nunder an obligation, imposed by or under an Australian law or a\nlaw of a foreign country, to tell the truth.\n","sortOrder":114},{"sectionNumber":"108","sectionType":"section","heading":"Exception—re-establishing credibility","content":"108 Exception—re-establishing credibility\n(1) The credibility rule does not apply to evidence given by a witness in\nre-examination.\n(2) The credibility rule does not apply to evidence of a prior consistent\nstatement of a witness if—\n(a) evidence of a prior inconsistent statement of the witness has\nbeen admitted; or\n(b) it is or will be suggested (either expressly or by implication) that\nevidence given by the witness has been fabricated or\nreconstructed (whether deliberately or otherwise) or is the result\nof a suggestion;\nand the court gives leave to present the evidence of the prior\nconsistent statement.\n\nDivision 3.7.3 Credibility of people who are not witnesses\nDivision 3.7.3 Credibility of people who are not\nwitnesses\n108A Admissibility of evidence of credibility of person who has\nmade a previous representation\n(a) evidence of a previous representation has been admitted in a\nproceeding; and\n(b) the person who made the representation has not been called, and\nwill not be called, to give evidence in the proceeding;\ncredibility evidence about the person who made the representation is\nnot admissible unless the evidence could substantially affect the\nassessment of the person’s credibility.\n(2) Without limiting the matters to which the court may have regard for\nsubsection (1), it must have regard to—\n(a) whether the evidence tends to prove that the person who made\nthe representation knowingly or recklessly made a false\nrepresentation when the person was under an obligation to tell\nthe truth; and\n(b) the period that elapsed between the doing of the acts or the\nhappening of the events to which the representation related and\nthe making of the representation.\n","sortOrder":115},{"sectionNumber":"108B","sectionType":"section","heading":"Further protections—previous representations of an","content":"108B Further protections—previous representations of an\naccused who is not a witness\n(1) This section applies only in a criminal proceeding and applies in\naddition to section 108A.\n(2) If the person mentioned in section 108A is a defendant, the credibility\nevidence is not admissible unless the court gives leave.\n\nPeople with specialised knowledge Division 3.7.4\n(3) Despite subsection (2), leave is not required if the evidence is about\nwhether the defendant—\n(a) is biased or has a motive to be untruthful; or\n(b) is, or was, unable to be aware of or recall matters to which the\ndefendant’s previous representation relates; or\n(c) has made a prior inconsistent statement.\n(4) The prosecution must not be given leave under subsection (2) unless\nevidence presented by the defendant has been admitted that—\n(a) tends to prove that a witness called by the prosecution has a\ntendency to be untruthful; and\n(b) is relevant solely or mainly to the witness’s credibility.\n(5) A reference in subsection (4) to evidence does not include a reference\nto evidence of conduct in relation to—\n(a) the events in relation to which the defendant is being prosecuted;\nor\n(b) the investigation of the offence for which the defendant is being\nprosecuted.\n(6) Another defendant must not be given leave under subsection (2)\nunless the previous representation of the defendant that has been\nadmitted includes evidence adverse to the defendant seeking leave.\n","sortOrder":116},{"sectionNumber":"108C","sectionType":"section","heading":"Exception—evidence of people with specialised","content":"108C Exception—evidence of people with specialised\nknowledge\n(1) The credibility rule does not apply to evidence given by a person\nabout the credibility of another witness if—\n(a) the person has specialised knowledge based on the person’s\ntraining, study or experience; and\n\n(b) the evidence is evidence of an opinion of the person that—\n(i) is completely or substantially based on that knowledge;\nand\n(ii) could substantially affect the assessment of the credibility\nof the witness; and\n(c) the court gives leave to present the evidence.\n(2) To remove any doubt, and without limiting subsection (1)—\n(a) a reference in that subsection to specialised knowledge includes\na reference to specialised knowledge of child development and\nchild behaviour (including specialised knowledge of the impact\nof sexual abuse on children and their behaviour during and\nfollowing the abuse); and\n(b) a reference in that subsection to an opinion of a person includes,\nif the person has specialised knowledge mentioned in paragraph\n(a), a reference to an opinion relating to either or both of the\n(i) the development and behaviour of children generally;\n(ii) the development and behaviour of children who have been\nvictims of sexual offences, or offences similar to sexual\noffences.\n\nCharacter Part 3.8\n","sortOrder":117},{"sectionNumber":"109","sectionType":"section","heading":"Application—pt 3.8","content":"109 Application—pt 3.8\nThis part applies only in a criminal proceeding.\n","sortOrder":118},{"sectionNumber":"110","sectionType":"section","heading":"Evidence about character of accused people","content":"110 Evidence about character of accused people\n(1) The hearsay rule, opinion rule, tendency rule and credibility rule do\nnot apply to evidence presented by a defendant to prove (directly or\nby implication) that the defendant is, either generally or in a particular\nrespect, a person of good character.\n(2) If evidence presented to prove (directly or by implication) that a\ndefendant is generally a person of good character has been admitted,\nthe hearsay rule, opinion rule, tendency rule and credibility rule do\nnot apply to evidence presented to prove (directly or by implication)\nthat the defendant is not generally a person of good character.\n(3) If evidence presented to prove (directly or by implication) that a\ndefendant is a person of good character in a particular respect has\nbeen admitted, the hearsay rule, opinion rule, tendency rule and\ncredibility rule do not apply to evidence presented to prove (directly\nor by implication) that the defendant is not a person of good character\nin that respect.\n","sortOrder":119},{"sectionNumber":"111","sectionType":"section","heading":"Evidence about character of co-accused","content":"111 Evidence about character of co-accused\n(1) The hearsay rule and tendency rule do not apply to evidence of a\ndefendant’s character if—\n(a) the evidence is evidence of an opinion about the defendant\npresented by another defendant; and\n(b) the person whose opinion it is has specialised knowledge based\non the person’s training, study or experience; and\n(c) the opinion is completely or substantially based on that\nknowledge.\n\n(2) If evidence mentioned in subsection (1) has been admitted, the\nhearsay rule, opinion rule and tendency rule do not apply to evidence\npresented to prove that the evidence should not be accepted.\n","sortOrder":120},{"sectionNumber":"112","sectionType":"section","heading":"Leave required to cross-examine about character of","content":"112 Leave required to cross-examine about character of\naccused or co-accused\nA defendant must not be cross-examined about matters arising out of\nevidence mentioned in this part unless the court gives leave.\n\nNote Identification evidence—see the dictionary.\n","sortOrder":121},{"sectionNumber":"113","sectionType":"section","heading":"Application—pt 3.9","content":"113 Application—pt 3.9\nThis part applies only in a criminal proceeding.\n","sortOrder":122},{"sectionNumber":"114","sectionType":"section","heading":"Exclusion of visual identification evidence","content":"114 Exclusion of visual identification evidence\npicture identification evidence—see section 115.\nvisual identification evidence means identification evidence relating\nto an identification based completely or partly on what a person saw\nbut does not include picture identification evidence.\n(2) Visual identification evidence presented by the prosecutor is not\nadmissible unless—\n(a) an identification parade that included the defendant was held\nbefore the identification was made; or\n(b) it would not have been reasonable to have held the parade; or\n(c) the defendant refused to take part in the parade;\nand the identification was made without the person who made it\nhaving been intentionally influenced to identify the defendant.\n(3) Without limiting the matters that may be taken into account by the\ncourt in deciding whether it was reasonable to hold an identification\nparade, it must take into account—\n(a) the kind of offence, and the gravity of the offence; and\n(b) the importance of the evidence; and\n\n(c) the practicality of holding an identification parade having\nregard, among other things—\n(i) if the defendant failed to cooperate in the conduct of the\nparade—to the manner and extent of, and the reason (if\nany) for, the failure; and\n(ii) in any case—to whether the identification was made at or\nabout the time of the commission of the offence; and\n(d) the appropriateness of holding an identification parade having\nregard, among other things, to the relationship (if any) between\nthe defendant and the person who made the identification.\n(4) It is presumed that it would not have been reasonable to have held an\nidentification parade if it would have been unfair to the defendant for\nthe parade to have been held.\n(5) If—\n(a) the defendant refused to take part in an identification parade\nunless an Australian legal practitioner or legal counsel acting for\nthe defendant, or someone else chosen by the defendant, was\npresent while it was being held; and\n(b) there were, at the time when the parade was to have been\nconducted, reasonable grounds to believe that it was not\nreasonably practicable for a person mentioned in paragraph (a)\nto be present;\nit is presumed that it would not have been reasonable to have held an\nidentification parade at that time.\n(6) In deciding whether it was reasonable to have held an identification\nparade, the court must not take into account the availability of\npictures or photographs that could be used in making identifications.\n\n","sortOrder":123},{"sectionNumber":"115","sectionType":"section","heading":"Exclusion of evidence of identification by pictures","content":"115 Exclusion of evidence of identification by pictures\npicture identification evidence means identification evidence\nrelating to an identification made completely or partly by the person\nwho made the identification examining pictures kept for the use of\npolice officers.\n(2) Picture identification evidence presented by the prosecutor is not\nadmissible if the pictures examined suggest that they are pictures of\npeople in police custody.\n(3) Subject to subsection (4), picture identification evidence presented by\nthe prosecutor is not admissible if—\n(a) when the pictures were examined, the defendant was in the\ncustody of a police officer of the police force investigating the\ncommission of the offence with which the defendant has been\ncharged; and\n(b) the picture of the defendant that was examined was made before\nthe defendant was taken into police custody.\n(4) Subsection (3) does not apply if—\n(a) the defendant’s appearance had changed significantly between\nthe time the offence was committed and the time the defendant\nwas taken into the custody; or\n(b) it was not reasonably practicable to make a picture of the\ndefendant after the defendant was taken into the custody.\n(5) Picture identification evidence presented by the prosecutor is not\nadmissible if, when the pictures were examined, the defendant was in\nthe custody of a police officer of the police force investigating the\ncommission of the offence with which the defendant has been\ncharged, unless—\n(a) the defendant refused to take part in an identification parade; or\n\n(b) the defendant’s appearance had changed significantly between\nthe time the offence was committed and the time the defendant\nwas taken into the custody; or\n(c) it would not have been reasonable to have held an identification\nparade that included the defendant.\n(6) Sections 114 (3) to (6) (Exclusion of visual identification evidence)\napply in deciding, for subsection (5) (c), whether it would have been\nreasonable to have held an identification parade.\n(7) If picture identification evidence presented by the prosecutor is\nadmitted into evidence, the judge must, on the defendant’s request—\n(a) if the picture of the defendant was made after the defendant was\ntaken into the custody—tell the jury that the picture was made\nafter the defendant was taken into the custody; or\n(b) otherwise—warn the jury that they must not assume that the\ndefendant has a criminal record or has previously been charged\nwith an offence.\nNote Section 116 (Directions to jury) and s 165 (Unreliable evidence) also deal\nwith warnings about identification evidence.\n(8) This section does not render inadmissible picture identification\nevidence presented by the prosecutor that contradicts or qualifies\npicture identification evidence presented by the defendant.\n(9) This section applies in addition to section 114 (Exclusion of visual\nidentification evidence).\n(10) In this section:\n(a) a reference to a picture includes a reference to a photograph; and\n(b) a reference to making a picture includes a reference to taking a\nphotograph.\n\n","sortOrder":124},{"sectionNumber":"116","sectionType":"section","heading":"Directions to jury","content":"116 Directions to jury\n(1) If identification evidence has been admitted, the judge must tell the\njury—\n(a) that there is a special need for caution before accepting\nidentification evidence; and\n(b) of the reasons for the need for caution, both generally and in the\ncircumstances of the case.\n(2) It is not necessary that a particular form of words be used in telling\nthe jury.\n\n","sortOrder":125},{"sectionNumber":"117","sectionType":"section","heading":"Definitions—div 3.10.1","content":"117 Definitions—div 3.10.1\n(1) In this division:\nclient includes the following:\n(a) an entity that engages a lawyer to provide legal services or that\nemploys a lawyer (including under a contract of service);\n(b) an employee or agent of a client;\n(c) an employer of a lawyer if the employer is—\n(i) the Commonwealth or a State or Territory; or\n(ii) a body established by a law of the Commonwealth or a\nState or Territory;\n(d) if, under a law of a State or Territory relating to people of\nunsound mind, a manager, committee or person (however\ndescribed) is acting in relation to the person, estate or property\nof a client—the manager, committee or person;\n(e) if a client has died—the client’s personal representative;\n(f) a successor to the rights and obligations of a client, that are rights\nand obligations in relation to which a confidential\ncommunication was made.\nconfidential communication means a communication made in\ncircumstances that, when it was made—\n(a) the person who made it; or\n(b) the person to whom it was made;\nwas under an express or implied obligation not to disclose its\ncontents, whether or not the obligation arises under law.\n\nconfidential document means a document prepared in circumstances\nthat, when it was prepared—\n(a) the person who prepared it; or\n(b) the person for whom it was prepared;\nwas under an express or implied obligation not to disclose its\ncontents, whether or not the obligation arises under law.\nlawyer means—\n(a) an Australian lawyer; and\n(b) an Australian-registered foreign lawyer; and\n(c) an overseas-registered foreign lawyer or an individual who,\nunder the law of a foreign country, is permitted to engage in\nlegal practice in that country; and\n(d) an employee or agent of a lawyer mentioned in paragraph (a),\n(b) or (c).\nparty includes the following:\n(a) an employee or agent of a party;\n(b) if, under a law of a State or Territory relating to people of\nunsound mind, a manager, committee or person (however\ndescribed) is acting in relation to the person, estate or property\nof a party—the manager, committee or person;\n(c) if a party has died—the party’s personal representative;\n(d) a successor to the rights and obligations of a party, that are rights\nand obligations in relation to which a confidential\ncommunication was made.\n(2) A reference in this division to the commission of an act includes a\nreference to a failure to act.\n\n","sortOrder":126},{"sectionNumber":"118","sectionType":"section","heading":"Legal advice","content":"118 Legal advice\nEvidence must not be presented if, on objection by a client, the court\nfinds that presenting the evidence would result in disclosure of—\n(a) a confidential communication made between the client and a\nlawyer; or\n(b) a confidential communication made between 2 or more lawyers\nacting for the client; or\n(c) the contents of a confidential document (whether delivered or\nnot) prepared by the client, lawyer or someone else;\nfor the dominant purpose of the lawyer, or 1 or more of the lawyers,\nproviding legal advice to the client.\n","sortOrder":127},{"sectionNumber":"119","sectionType":"section","heading":"Litigation","content":"119 Litigation\nEvidence must not be presented if, on objection by a client, the court\nfinds that presenting the evidence would result in disclosure of—\n(a) a confidential communication between the client and someone\nelse, or between a lawyer acting for the client and someone else,\nthat was made; or\n(b) the contents of a confidential document (whether delivered or\nnot) that was prepared;\nfor the dominant purpose of the client being provided with\nprofessional legal services relating to an Australian or overseas\nproceeding (including the proceeding before the court), or an\nanticipated or pending Australian or overseas proceeding, in which\nthe client is or may be, or was or might have been, a party.\n\n","sortOrder":128},{"sectionNumber":"120","sectionType":"section","heading":"Unrepresented parties","content":"120 Unrepresented parties\nEvidence must not be presented if, on objection by a party who is not\nrepresented in the proceeding by a lawyer, the court finds that\npresenting the evidence would result in disclosure of—\n(a) a confidential communication between the party and someone\nelse; or\n(b) the contents of a confidential document (whether delivered or\nnot) that was prepared by or at the direction or request of the\nparty;\nfor the dominant purpose of preparing for or conducting the\n","sortOrder":129},{"sectionNumber":"121","sectionType":"section","heading":"Loss of client legal privilege—generally","content":"121 Loss of client legal privilege—generally\n(1) This division does not prevent the presenting of evidence relevant to\na question about the intentions, or competence in law, of a client or\nparty who has died.\n(2) This division does not prevent the presenting of evidence if, were the\nevidence not presented, the court would be prevented, or it could\nreasonably be expected that the court would be prevented, from\nenforcing an order of an Australian court.\n(3) This division does not prevent the presenting of evidence of a\ncommunication or document that affects a right of a person.\n","sortOrder":130},{"sectionNumber":"122","sectionType":"section","heading":"Loss of client legal privilege—consent and related","content":"122 Loss of client legal privilege—consent and related\nmatters\n(1) This division does not prevent the presenting of evidence given with\nthe consent of the client or party.\n\n(2) Subject to subsection (5), this division does not prevent the presenting\nof evidence if the client or party has acted in a way that is inconsistent\nwith the client or party objecting to the presenting of the evidence\nbecause it would result in a disclosure mentioned in section 118\n(Legal advice), section 119 (Litigation) or section 120\n(Unrepresented parties).\n(3) Without limiting subsection (2), the client or party is taken to have\nacted in the way mentioned in subsection (2) if—\n(a) the client or party knowingly and voluntarily disclosed the\nsubstance of the evidence to someone else; or\n(b) the substance of the evidence has been disclosed with the\nexpress or implied consent of the client or party.\n(4) The reference in subsection (3) (a) to a knowing and voluntary\ndisclosure does not include a reference to a disclosure by a person\nwho was, at the time of the disclosure, an employee or agent of the\nclient or party, or of a lawyer of the client or party, unless the\nemployee or agent was authorised by the client, party or lawyer to\nmake the disclosure.\n(5) A client or party is not taken to have acted in a way inconsistent with\nthe client or party objecting to the presenting of the evidence only\nbecause—\n(a) the substance of the evidence has been disclosed—\n(i) in the course of making a confidential communication or\npreparing a confidential document; or\n(ii) as a result of duress or deception; or\n(iii) under compulsion of law; or\n\n(iv) if the client or party is a body established by, or a person\nholding an office under, an Australian law—to the\nMinister, or the Minister of the Commonwealth, the State\nor Territory, administering the law, or part of the law,\nunder which the body is established or the office is held; or\n(b) of a disclosure by a client to someone else if the disclosure is\nabout a matter in relation to which the same lawyer is providing,\nor is to provide, professional legal services to both the client and\nthe other person; or\n(c) of a disclosure to a person with whom the client or party had, at\nthe time of the disclosure, a common interest relating to the\nproceeding or an anticipated or pending Australian or overseas\n(6) This division does not prevent the presenting of evidence of a\ndocument that a witness has used—\n(a) to try to revive the witness’s memory about a fact or opinion; or\n(b) in a way mentioned in section 32 (Attempts to revive memory\nin court) or section 33 (Evidence given by police officers).\n","sortOrder":131},{"sectionNumber":"123","sectionType":"section","heading":"Loss of client legal privilege—defendants","content":"123 Loss of client legal privilege—defendants\nIn a criminal proceeding, this division does not prevent a defendant\nfrom presenting evidence unless it is evidence of—\n(a) a confidential communication made between an associated\ndefendant and a lawyer acting for the associated defendant in\nconnection with the prosecution of the associated defendant; or\n(b) the contents of a confidential document prepared by an\nassociated defendant or by a lawyer acting for an associated\ndefendant in connection with the prosecution of the associated\ndefendant.\nNote Associated defendant—see the dictionary.\n\n","sortOrder":132},{"sectionNumber":"124","sectionType":"section","heading":"Loss of client legal privilege—joint clients","content":"124 Loss of client legal privilege—joint clients\n(1) This section only applies to a civil proceeding in connection with\nwhich 2 or more parties have, before the start of the proceeding,\njointly retained a lawyer in relation to the same matter.\n(2) This division does not prevent 1 of those parties from presenting\nevidence of—\n(a) a communication made by any 1 of them to the lawyer; or\n(b) the contents of a confidential document prepared by or at the\ndirection or request of any 1 of them;\nin connection with that matter.\n","sortOrder":133},{"sectionNumber":"125","sectionType":"section","heading":"Loss of client legal privilege—misconduct","content":"125 Loss of client legal privilege—misconduct\n(1) This division does not prevent the presenting of evidence of—\n(a) a communication made or the contents of a document prepared\nby a client or lawyer (or both), or a party who is not represented\nin the proceeding by a lawyer, in furtherance of the commission\nof a fraud or an offence or the commission of an act that renders\na person liable to a civil penalty; or\n(b) a communication or the contents of a document that the client or\nlawyer (or both), or the party, knew or ought reasonably to have\nknown was made or prepared in furtherance of a deliberate\nabuse of a power.\n(2) For this section, if the commission of the fraud, offence or act, or the\nabuse of power, is a fact in issue and there are reasonable grounds for\nfinding that—\n(a) the fraud, offence or act, or the abuse of power, was committed;\nand\n\n(b) a communication was made or document prepared in\nfurtherance of the commission of the fraud, offence or act or the\nabuse of power;\npower means a power given by or under an Australian law.\n","sortOrder":134},{"sectionNumber":"126","sectionType":"section","heading":"Loss of client legal privilege—related communications","content":"126 Loss of client legal privilege—related communications\nand documents\n(1) If, because of the application of a relevant section, this division does\nnot prevent the presenting of evidence of a communication or the\ncontents of a document, the relevant section does not prevent the\npresenting of evidence of another communication or document if it is\nreasonably necessary to enable a proper understanding of the\ncommunication or document.\nA lawyer advises his client to understate her income for the previous year to evade\ntaxation because of her potential tax liability ‘as set out in my previous letter to you\ndated 11 August 1994’. In a proceeding against the taxpayer for tax evasion,\nevidence of the contents of the letter dated 11 August 1994 may be admissible (even\nif that letter would otherwise be privileged) to enable a proper understanding of the\nsecond letter.\n(2) In this section:\nrelevant section means:\n(a) section 121 (Loss of client legal privilege—generally); or\n(b) section 122 (Loss of client legal privilege—consent and related\nmatters); or\n(c) section 123 (Loss of client legal privilege—defendants); or\n(d) section 124 (Loss of client legal privilege—joint clients); or\n\n(e) section 125 (Loss of client legal privilege—misconduct).\n","sortOrder":135},{"sectionNumber":"Div 3","sectionType":"division","heading":"10.1A Professional confidential relationship","content":"Division 3.10.1A Professional confidential relationship\nprivilege\n","sortOrder":136},{"sectionNumber":"126A","sectionType":"section","heading":"Definitions—div 3.10.1A","content":"126A Definitions—div 3.10.1A\n(1) In this division:\nconfidant—see the definition of protected confidence.\nharm includes actual physical bodily harm, financial loss, stress or\nshock, damage to reputation or emotional or psychological harm (for\nexample, shame, humiliation and fear).\nprotected confidence means a communication made by a person in\nconfidence to someone else (the confidant)—\n(a) in the course of a relationship in which the confidant was acting\nin a professional capacity; and\n(b) when the confidant was under an express or implied obligation\nnot to disclose its contents, whether or not the obligation arises\nunder law or can be inferred from the nature of the relationship\nbetween the person and the confidant.\nprotected confider means a person who made a protected confidence.\nprotected identity information means information about, or enabling\na person to ascertain, the identity of the person who made a protected\nconfidence.\n(2) For this division, a communication may be made in confidence even\nif it is made in the presence of a third party if the third party’s presence\nis necessary to facilitate communication.\n\nProfessional confidential relationship privilege Division 3.10.1A\n","sortOrder":137},{"sectionNumber":"126B","sectionType":"section","heading":"Exclusion of evidence of protected confidences","content":"126B Exclusion of evidence of protected confidences\n(1) The court may direct that evidence not be presented in a proceeding\nif the court finds that presenting it would disclose—\n(a) a protected confidence; or\n(b) the contents of a document recording a protected confidence; or\n(c) protected identity information.\n(2) The court may give a direction under this section—\n(a) on its own initiative; or\n(b) on the application of the protected confider or confidant\n(whether or not either is a party).\n(3) The court must give a direction under this section if it is satisfied\n(a) it is likely that harm would or might be caused (whether directly\nor indirectly) to a protected confider if the evidence is presented;\nand\n(b) the nature and extent of the harm outweighs the desirability of\nthe evidence being presented.\n(4) Without limiting the matters that the court may take into account for\nthis section, it must take into account the following matters:\n(a) the probative value of the evidence in the proceeding;\n(b) the importance of the evidence in the proceeding;\n(c) the nature and gravity of the offence, cause of action or defence\nand the nature of the subject matter of the proceeding;\n(d) the availability of any other evidence relating to the matters to\nwhich the protected confidence or protected identity information\nrelates;\n\n(e) the likely effect of presenting evidence of the protected\nconfidence or protected identity information, including the\nlikelihood of harm, and the nature and extent of harm that would\nbe caused to the protected confider;\n(f) the means (including any ancillary orders that may be made\nunder section 126E) available to the court to limit the harm or\nextent of the harm that is likely to be caused if evidence of the\nprotected confidence or the protected identity information is\ndisclosed;\n(g) if the proceeding is a criminal proceeding—whether the party\nseeking to present evidence of the protected confidence or\nprotected identity information is a defendant or the prosecutor;\n(h) whether the substance of the protected confidence or the\nprotected identity information has already been disclosed by the\nprotected confider or someone else;\n(i) the public interest in preserving the confidentiality of protected\nconfidences;\n(j) the public interest in preserving the confidentiality of protected\nidentity information.\n(5) The court must state its reasons for giving or refusing to give a\ndirection under this section.\n","sortOrder":138},{"sectionNumber":"126C","sectionType":"section","heading":"Loss of professional confidential relationship privilege—","content":"126C Loss of professional confidential relationship privilege—\nconsent\nThis division does not prevent the presenting of evidence with the\nprotected confider’s consent.\n\nProfessional confidential relationship privilege Division 3.10.1A\n","sortOrder":139},{"sectionNumber":"126D","sectionType":"section","heading":"Loss of professional confidential relationship privilege—","content":"126D Loss of professional confidential relationship privilege—\nmisconduct\n(1) This division does not prevent the presenting of evidence of a\ncommunication made or the contents of a document prepared in the\nfurtherance of the commission of a fraud or an offence or the\ncommission of an act that renders a person liable to a civil penalty.\n(2) For this section, if the commission of the fraud, offence or act is a fact\nin issue and there are reasonable grounds for finding that—\n(a) the fraud, offence or act was committed; and\n(b) a communication was made or document prepared in\nfurtherance of the commission of the fraud, offence or act;\n","sortOrder":140},{"sectionNumber":"126E","sectionType":"section","heading":"Ancillary orders","content":"126E Ancillary orders\nWithout limiting any action the court may take to limit the possible\nharm, or extent of the harm, likely to be caused by the disclosure of\nevidence of a protected confidence or protected identity information,\nthe court may—\n(a) order that all or part of the evidence be heard in closed court;\nand\n(b) make an order relating to the suppression of publication of all or\npart of the evidence given before the court as, in its opinion, is\nnecessary to protect the safety and welfare of the protected\nconfider.\n","sortOrder":141},{"sectionNumber":"126F","sectionType":"section","heading":"Application—div 3.10.1A","content":"126F Application—div 3.10.1A\n(1) This division extends to a protected confidence made before the\n\n(2) This division does not apply in relation to a proceeding the hearing of\nwhich began before the commencement of this division.\n(3) This division does not apply in relation to a protected confidence\nwithin the meaning of the Evidence (Miscellaneous Provisions)\nAct 1991, division 4.4.3 (Sexual and family violence offence\nproceedings—protection of counselling communications).\nNote The Commonwealth Act does not include this subsection.\n(4) The court may give a direction under this division in relation to a\nprotected confidence or protected identity information whether or not\nthe protected confidence or protected identity information is\nprivileged under another section of this part or would be privileged\nexcept for a limitation or restriction imposed by that section.\n(5) For subsection (2), the hearing of a proceeding has begun if the court\nhas begun to take oral or written evidence in the proceeding (other\nthan in relation to bail or any other interlocutory matter).\nNote The Commonwealth Act and NSW Act do not include this subsection.\n","sortOrder":142},{"sectionNumber":"126J","sectionType":"section","heading":"Definitions—div 3.10.1C","content":"126J Definitions—div 3.10.1C\nIn this division:\ninformant means a person who gives information to a journalist in\nthe normal course of the journalist’s work in the expectation that the\ninformation may be published in a news medium.\njournalist means a person who is engaged and active in the\npublication of news and who may be given information by an\ninformant in the expectation that the information may be published in\na news medium.\nnews medium means a medium for the dissemination to the public or\na section of the public of news and observations on news.\n\nJournalist privilege Division 3.10.1C\n","sortOrder":143},{"sectionNumber":"126K","sectionType":"section","heading":"Journalist privilege relating to informant’s identity","content":"126K Journalist privilege relating to informant’s identity\n(1) If a journalist has promised an informant not to disclose the\ninformant’s identity, neither the journalist nor the journalist’s\nemployer is compellable to answer any question or produce any\ndocument that would disclose the informant’s identity or enable that\nidentity to be ascertained.\n(2) The court may, on the application of a party, order that subsection (1)\nis not to apply if it is satisfied that, having regard to the issues to be\ndecided in the proceeding, the public interest in the disclosure of the\ninformant’s identity outweighs—\n(a) any likely adverse effect of the disclosure on the informant or\nanyone else; and\n(b) the public interest in the communication of facts and opinion to\nthe public by the news media and, accordingly also, in the news\nmedia’s ability to access sources of facts.\n(3) An order under subsection (2) may be made subject to the conditions\n(if any) the court thinks fit.\nNote The Commonwealth Act, s 126H is equivalent to this section.\n","sortOrder":144},{"sectionNumber":"126L","sectionType":"section","heading":"Application—div 3.10.1C","content":"126L Application—div 3.10.1C\n(1) This division extends to information given by an informant before the\n(2) This division does not apply in relation to a proceeding the hearing of\nwhich began before the commencement of this division.\n(3) This division (as applied by section 131A) does not apply to a\ndisclosure requirement mentioned in that section made before the\n\n(4) For subsection (2), the hearing of a proceeding has begun if the court\nhas begun to take oral or written evidence in the proceeding (other\nthan in relation to bail or any other interlocutory matter).\nNote The NSW Act does not include this subsection and the Commonwealth\nAct does not include this section.\n","sortOrder":145},{"sectionNumber":"127","sectionType":"section","heading":"Religious confessions","content":"127 Religious confessions\n(1) A person who is or was a member of the clergy of a church or\nreligious denomination is entitled to refuse to divulge that a religious\nconfession was made, or the contents of a religious confession made,\nto the person when a member of the clergy.\n(2) Subsection (1) does not apply if—\n(a) the communication involved in the religious confession was\nmade for a criminal purpose; or\n(b) the religious confession includes information relating to—\n(i) a child or young person that is experiencing, or that has\nexperienced, sexual abuse or non-accidental physical\ninjury; or\n(ii) a substantial risk that a child or young person may\nexperience sexual abuse or non-accidental physical injury.\n(3) This section applies even if an Act provides—\n(a) that the rules of evidence do not apply or that an entity is not\nbound by the rules of evidence; or\n(b) that a person is not excused from answering a question or\nproducing a document or other thing on the ground of privilege\nor any other ground.\n\nreligious confession means a confession made by a person to a\nmember of the clergy in the member’s professional capacity\naccording to the ritual of the member’s church or religious\ndenomination.\n","sortOrder":146},{"sectionNumber":"128","sectionType":"section","heading":"Privilege in relation to self-incrimination in other","content":"128 Privilege in relation to self-incrimination in other\n(1) This section applies if a witness objects to giving particular evidence,\nor evidence on a particular matter, on the ground that the evidence\nmay tend to prove that the witness—\n(a) has committed an offence against or arising under an Australian\n(b) is liable to a civil penalty.\n(2) The court must decide whether or not there are reasonable grounds\nfor the objection.\n(3) Subject to subsection (4), if the court decides that there are reasonable\ngrounds for the objection, the court must not require the witness to\ngive the evidence and must tell the witness—\n(a) that the witness need not give the evidence unless required by\nthe court to do so under subsection (4); and\n(b) that the court will give a certificate under this section if—\n(i) the witness willingly gives the evidence without being\nrequired to do so under subsection (4); or\n(ii) the witness gives the evidence after being required to do so\nunder subsection (4); and\n(c) of the effect of the certificate.\n\n(4) The court may require the witness to give the evidence if the court is\nsatisfied that—\n(a) the evidence does not tend to prove that the witness has\ncommitted an offence against or arising under, or is liable to a\ncivil penalty under, a law of a foreign country; and\n(b) the interests of justice require that the witness give the evidence.\n(5) If the witness either willingly gives the evidence without being\nrequired to do so under subsection (4), or gives it after being required\nto do so under that subsection, the court must give the witness a\ncertificate under this section in relation to the evidence.\n(6) The court must also give a witness a certificate under this section if—\n(a) the objection has been overruled; and\n(b) after the evidence has been given, the court finds that there were\nreasonable grounds for the objection.\n(7) In any proceeding in an ACT court or before any entity authorised by\na territory law, or by consent of parties, to hear, receive and examine\nevidence—\n(a) evidence given by a person in relation to which a certificate\nunder this section has been given; and\n(b) evidence of any information, document or thing obtained as a\ndirect or indirect consequence of the person having given\nevidence;\ncannot be used against the person.\nNote This subsection differs from the Commonwealth Act, s 128 (7). The\nCommonwealth provision refers to an ‘Australian court’ instead of an\n‘ACT court’.\n(8) However, subsection (7) does not apply to a criminal proceeding in\nrelation to the falsity of the evidence.\n\n(9) Subsection (7) has effect despite any challenge, review, quashing or\ncalling into question on any ground of the decision to give, or the\nvalidity of, the certificate.\n(10) If a defendant in a criminal proceeding for an offence is given a\ncertificate under this section, subsection (7) does not apply in a\nproceeding that is a retrial of the defendant for the same offence or a\ntrial of the defendant for an offence arising out of the same facts that\ngave rise to that offence.\n(11) In a criminal proceeding, this section does not apply in relation to the\ngiving of evidence by a defendant, if the evidence is the defendant—\n(a) did an act the doing of which is a fact in issue; or\n(b) had a state of mind the existence of which is a fact in issue.\n(12) A reference in this section to doing an act includes a reference to\nfailing to act.\n(13) If a person has been given a certificate under a prescribed State or\nTerritory provision in relation to evidence given by a person in a\nproceeding in a State or Territory court, the certificate has the same\neffect, in a proceeding to which this subsection applies, as if it had\nbeen given under this section.\n(14) For subsection (13), a prescribed State or Territory provision is a\nprovision of a State or Territory law declared by regulation to be a\nprescribed State or Territory provision for that subsection.\n(15) Subsection (13) applies to a proceeding in relation to which this Act\napplies because of section 4, other than a proceeding for an offence\nagainst a Commonwealth law or for the recovery of a civil penalty\nunder a Commonwealth law.\nNote 1 The Commonwealth Act, s 128 (12) to (14) gives effect to certificates in\nrelation to self-incriminating evidence under this Act in proceedings in\nfederal courts and in prosecutions for Commonwealth offences.\nNote 2 Bodies corporate cannot claim this privilege—see s 187.\n\nNote 3 The dictionary, pt 2, s 3 sets out what is a civil penalty.\nNote 4 The Commonwealth Act, s 128 (12) to (14) gives effect to certificates in\nrelation to self-incriminating evidence under this Act in proceedings in\nfederal courts and in prosecutions for Commonwealth offences.\nNote 5 Subsections (9) and (10) were inserted as a response to the decision of\nthe High Court in Cornwell v The Queen [2007] HCA 12\n(22 March 2007).\n","sortOrder":147},{"sectionNumber":"128A","sectionType":"section","heading":"Privilege in relation to self-incrimination—exception for","content":"128A Privilege in relation to self-incrimination—exception for\ncertain orders etc\ndisclosure order means an order made by an ACT court in a civil\nproceeding requiring a person to disclose information as part of, or in\nconnection with, a freezing, search or other order under the Court\nProcedures Rules 2006, division 2.9.4 but does not include an order\nmade by a court under the Proceeds of Crime Act 2002 (Cwlth) or the\nConfiscation of Criminal Assets Act 2003.\nrelevant person means a person to whom a disclosure order is\ndirected.\n(2) If a relevant person objects to complying with a disclosure order on\nthe grounds that some or all of the information required to be\ndisclosed may tend to prove that the person—\n(a) has committed an offence against or arising under an Australian\n(b) is liable to a civil penalty;\nthe person must—\n(c) disclose the information in relation to which no objection is\ntaken; and\n(d) prepare an affidavit containing the information in relation to\nwhich objection is taken (the privilege affidavit) and deliver it\nto the court in a sealed envelope; and\n\n(e) file and serve on each other party a separate affidavit setting out\nthe basis of the objection.\n(3) The sealed envelope containing the privilege affidavit must not be\nopened except as directed by the court.\n(4) The court must decide whether or not there are reasonable grounds\nfor the objection.\n(5) Subject to subsection (6), if the court finds that there are reasonable\ngrounds for the objection, the court must not require the information\ncontained in the privilege affidavit to be disclosed and must return it\nto the relevant person.\n(6) If the court is satisfied that—\n(a) any information disclosed in the privilege affidavit may tend to\nprove that the relevant person has committed an offence against\nor arising under, or is liable to a civil penalty under, an\nAustralian law; and\n(b) the information does not tend to prove that the relevant person\nhas committed an offence against or arising under, or is liable to\na civil penalty under, a law of a foreign country; and\n(c) the interests of justice require the information to be disclosed;\nthe court may make an order requiring all or any part of the privilege\naffidavit containing information mentioned in paragraph (a) to be\nfiled and served on the parties.\n(7) If all or any part of the privilege affidavit is disclosed (including by\norder under subsection (6)), the court must give the relevant person a\ncertificate in relation to the information mentioned in\nsubsection (6) (a).\n\n(8) In any proceeding in an ACT court or before any entity authorised by\na territory law, or by consent of parties, to hear, receive and examine\nevidence—\n(a) evidence of information disclosed by a relevant person in\nrelation to which a certificate has been given under this section;\nand\n(b) any information, document or thing obtained as a direct result or\nindirect consequence of the relevant person having disclosed\nthat information;\ncannot be used against the person.\nNote This subsection differs from the Commonwealth Act, s 128A (8). The\nCommonwealth provision refers to an ‘Australian court’ instead of an\n‘ACT court’.\n(9) However, subsection (8) does not apply to a criminal proceeding in\nrelation to the falsity of the evidence.\n(10) Subsection (8) does not prevent the use against the relevant person of\nany information disclosed by a document—\n(a) that is an annexure or exhibit to a privilege affidavit prepared by\nthe person in response to a disclosure order; and\n(b) that was in existence before the order was made.\n(11) Subsection (8) has effect despite any challenge, review, quashing or\ncalling into question on any ground of the decision to give, or the\nvalidity of, the certificate.\n(12) If a person has been given a certificate under a prescribed State or\nTerritory provision in relation to information mentioned in\nsubsection (6) (a), the certificate has the same effect, in a proceeding\nto which this subsection applies, as if it had been given under this\nsection.\n\n(13) For subsection (12), a prescribed State or Territory provision is a\nprovision of a State or Territory law declared by regulation to be a\nprescribed State or Territory provision for that subsection.\n(14) Subsection (12) applies to a proceeding in relation to which this Act\napplies because of section 4, other than a proceeding for an offence\nagainst a Commonwealth law or for the recovery of a civil penalty\nunder a Commonwealth law.\nNote The Commonwealth Act does not contain provisions corresponding to\ns 128A (12) to (14).\nDivision 3.10.3 Evidence excluded in the public\ninterest\n","sortOrder":148},{"sectionNumber":"129","sectionType":"section","heading":"Exclusion of evidence of reasons for judicial etc","content":"129 Exclusion of evidence of reasons for judicial etc\ndecisions\n(1) Evidence of the reasons for a decision made by a person who is—\n(a) a judge in an Australian or overseas proceeding; or\n(b) an arbitrator in relation to a dispute that has been submitted to\nthe person, or to the person and 1 or more other people, for\narbitration;\nor the deliberations of the person in relation to the decision, must not\nbe given by the person, or a person who was, in relation to the\nproceeding or arbitration, under the direction or control of the person.\n(2) Also, the evidence must not be given by tendering as evidence a\ndocument prepared by the person.\n(3) This section does not prevent the admission or use, in a proceeding,\nof published reasons for a decision.\n(4) In a proceeding, evidence of the reasons for a decision made by a\nmember of a jury in another Australian or overseas proceeding, or of\nthe deliberations of a member of a jury in relation to the decision,\nmust not be given by any of the jury members.\n\n(5) This section does not apply in a proceeding that is—\n(a) a prosecution for 1 or more of the following offences:\n(i) an offence against or arising under the Criminal\nCode 2002, sections 707 to 709 or section 713;\n(ii) an offence against or arising under the Juries Act 1967,\nsection 42BA or section 43;\n(iii) an offence connected with an offence mentioned in\nsubparagraph (i) or (ii), including an offence of conspiring\nto commit the offence; or\n(b) in relation to a contempt of a court; or\n(c) an appeal from, or judicial review of, a judgment, decree, order\nor sentence of a court; or\n(d) a review of an arbitral award; or\n(e) a civil proceeding in relation to an act of a judicial officer or\narbitrator that was, and that was known at the time by the judicial\nofficer or arbitrator to be, outside the scope of the matters in\nrelation to which the judicial officer or arbitrator had authority\nto act.\nNote Subsection (5) (a) differs from the Commonwealth Act, s 129 (5) (a).\n","sortOrder":149},{"sectionNumber":"130","sectionType":"section","heading":"Exclusion of evidence of matters of state","content":"130 Exclusion of evidence of matters of state\n(1) If the public interest in admitting into evidence information or a\ndocument that relates to matters of state is outweighed by the public\ninterest in preserving secrecy or confidentiality in relation to the\ninformation or document, the court may direct that the information or\ndocument not be presented as evidence.\n(2) The court may give a direction under subsection (1) on its own\ninitiative or on the application of any person (whether or not the\nperson is a party).\n\n(3) In deciding whether to give the direction, the court may inform itself\nin any way it thinks fit.\n(4) Without limiting the circumstances in which information or a\ndocument may be taken for subsection (1) to relate to matters of state,\nthe information or document is taken for that subsection to relate to\nmatters of state if presenting it as evidence would—\n(a) prejudice the security, defence or international relations of\nAustralia; or\n(b) damage relations between the Commonwealth and a State or\nbetween 2 or more States; or\n(c) prejudice the prevention, investigation or prosecution of an\noffence; or\n(d) prejudice the prevention or investigation of, or the conduct of\nproceedings for recovery of civil penalties brought in relation to,\nother contraventions of the law; or\n(e) disclose, or enable a person to ascertain, the existence or identity\nof a confidential source of information relating to the\nenforcement or administration of a law of the Commonwealth\nor a State; or\n(f) prejudice the proper functioning of the government of the\nCommonwealth or a State.\n(5) Without limiting the matters the court may take into account for\nsubsection (1), it must take into account the following matters:\n(a) the importance of the information or the document in the\nproceeding;\n(b) if the proceeding is a criminal proceeding—whether the party\nseeking to present evidence of the information or document is a\ndefendant or the prosecutor;\n\n(c) the nature of the offence, cause of action or defence to which the\ninformation or document relates, and the nature of the subject\nmatter of the proceeding;\n(d) the likely effect of presenting evidence of the information or\ndocument, and the means available to limit its publication;\n(e) whether the substance of the information or document has\nalready been published;\n(f) if the proceeding is a criminal proceeding and the party seeking\nto present evidence of the information or document is a\ndefendant—whether the direction is to be made subject to the\ncondition that the prosecution be stayed.\n(6) A reference in this section to a State includes a reference to a\nTerritory.\n","sortOrder":150},{"sectionNumber":"131","sectionType":"section","heading":"Exclusion of evidence of settlement negotiations","content":"131 Exclusion of evidence of settlement negotiations\n(1) Evidence must not be presented of—\n(a) a communication that is made between people in dispute, or\nbetween 1 or more people in dispute and a third party, in\nconnection with an attempt to negotiate a settlement of the\ndispute; or\n(b) a document (whether delivered or not) that has been prepared in\nconnection with an attempt to negotiate a settlement of a dispute.\n(2) Subsection (1) does not apply if—\n(a) the people in dispute consent to the evidence being presented in\nthe proceeding or, if any of the people has tendered the\ncommunication or document in evidence in another Australian\nor overseas proceeding, all the other people consent; or\n(b) the substance of the evidence has been disclosed with the\nexpress or implied consent of all the people in dispute; or\n\n(c) the substance of the evidence has been partly disclosed with the\nexpress or implied consent of the people in dispute, and full\ndisclosure of the evidence is reasonably necessary to enable a\nproper understanding of the other evidence that has already been\npresented; or\n(d) the communication or document included a statement to the\neffect that it was not to be treated as confidential; or\n(e) the evidence tends to contradict or to qualify evidence that has\nalready been admitted about the course of an attempt to settle\nthe dispute; or\n(f) the proceeding in which it is sought to present the evidence is a\nproceeding to enforce an agreement between the people in\ndispute to settle the dispute, or a proceeding in which the making\nof the agreement is in issue; or\n(g) evidence that has been presented in the proceeding, or an\ninference from evidence that has been presented in the\nproceeding, is likely to mislead the court unless evidence of the\ncommunication or document is presented to contradict or to\nqualify that evidence; or\n(h) the communication or document is relevant to deciding liability\nfor costs; or\n(i) making the communication, or preparing the document, affects\na right of a person; or\n(j) the communication was made, or the document was prepared, in\nfurtherance of the commission of a fraud or an offence or the\ncommission of an act that renders a person liable to a civil\npenalty; or\n(k) one of the people in dispute, or an employee or agent of 1 of\nthem, knew or ought reasonably to have known that the\ncommunication was made, or the document was prepared, in\nfurtherance of a deliberate abuse of a power.\n\n(3) For subsection (2) (j), if commission of the fraud, offence or act is a\nfact in issue and there are reasonable grounds for finding that—\n(a) the fraud, offence or act was committed; and\n(b) a communication was made or document was prepared in\nfurtherance of the commission of the fraud, offence or act;\n(4) For subsection (2) (k), if—\n(a) the abuse of power is a fact in issue; and\n(b) there are reasonable grounds for finding that a communication\nwas made or document was prepared in furtherance of the abuse\nof power;\n(5) In this section—\n(a) a reference to a dispute is a reference to a dispute of a kind in\nrelation to which relief may be given in an Australian or\noverseas proceeding; and\n(b) a reference to an attempt to negotiate the settlement of a dispute\ndoes not include a reference to an attempt to negotiate the\nsettlement of a criminal proceeding or an anticipated criminal\nproceeding; and\n(c) a reference to a communication made by a person in dispute\nincludes a reference to a communication made by an employee\nor agent of the person; and\n(d) a reference to the consent of a person in dispute includes a\nreference to the consent of an employee or agent of the person,\nif the employee or agent is authorised to consent; and\n\nGeneral Division 3.10.4\n(e) a reference to commission of an act includes a reference to a\nfailure to act.\npower means a power given by or under an Australian law.\n","sortOrder":151},{"sectionNumber":"131A","sectionType":"section","heading":"Application of div 3.10.4 to preliminary proceedings of","content":"131A Application of div 3.10.4 to preliminary proceedings of\ncourts\n(a) a person is required by a disclosure requirement to give\ninformation, or to produce a document, which would result in\nthe disclosure of a communication, a document or its contents\nor other information mentioned in division 3.10.1,\ndivision 3.10.1A, division 3.10.1C or division 3.10.3; and\n(b) the person objects to giving the information or providing the\ndocument;\nthe court must decide the objection by applying the provisions of this\npart (other than section 123 (Loss of client legal privilege—\ndefendants) and section 128 (Privilege in relation to\nself-incrimination in other proceedings)) with any necessary\nmodification as if the objection to giving information or producing\nthe document were an objection to the giving or presenting of\nevidence.\n(2) For this section, disclosure requirement means a process or order of\na court that requires the disclosure of information or a document and\nincludes the following:\n(a) a summons or subpoena to produce documents or give evidence;\n(b) pre-trial discovery;\n(c) non-party discovery;\n\n(d) interrogatories;\n(e) a notice to produce;\n(f) a request to produce a document under division 4.6.1 (Requests\nto produce documents or call witnesses).\nNote 1 The Commonwealth Act, s 131A applies only to that Act, div 1C\n(Journalist privilege).\nNote 2 The Commonwealth Act includes a provision (s 131B) that extends the\napplication of that Act, div 1C to proceedings in all Australian courts for\nCommonwealth offences.\n","sortOrder":152},{"sectionNumber":"132","sectionType":"section","heading":"Court to inform of rights to make applications and","content":"132 Court to inform of rights to make applications and\nobjections\nIf it appears to the court that a witness or party may have grounds for\nmaking an application or objection under a provision of this part, the\ncourt must satisfy itself (if there is a jury, in the jury’s absence) that\nthe witness or party is aware of the effect of the provision.\n","sortOrder":153},{"sectionNumber":"133","sectionType":"section","heading":"Court may inspect etc documents","content":"133 Court may inspect etc documents\nIf a question arises under this part in relation to a document, the court\nmay order that the document be produced to it and may inspect the\ndocument for the purpose of deciding the question.\n","sortOrder":154},{"sectionNumber":"134","sectionType":"section","heading":"Inadmissibility of evidence that must not be presented or","content":"134 Inadmissibility of evidence that must not be presented or\ngiven\nEvidence that, because of this part, must not be presented or given in\na proceeding is not admissible in the proceeding.\n\nDiscretionary and mandatory exclusions Part 3.11\nPart 3.11 Discretionary and mandatory\nexclusions\n","sortOrder":155},{"sectionNumber":"135","sectionType":"section","heading":"General discretion to exclude evidence","content":"135 General discretion to exclude evidence\nThe court may refuse to admit evidence if its probative value is\nsubstantially outweighed by the danger that the evidence might—\n(a) be unfairly prejudicial to a party; or\n(b) be misleading or confusing; or\n(c) cause or result in undue waste of time.\n","sortOrder":156},{"sectionNumber":"136","sectionType":"section","heading":"General discretion to limit use of evidence","content":"136 General discretion to limit use of evidence\nThe court may limit the use to be made of evidence if there is a danger\nthat a particular use of the evidence might—\n(a) be unfairly prejudicial to a party; or\n(b) be misleading or confusing.\n","sortOrder":157},{"sectionNumber":"137","sectionType":"section","heading":"Exclusion of prejudicial evidence in criminal proceedings","content":"137 Exclusion of prejudicial evidence in criminal proceedings\nIn a criminal proceeding, the court must refuse to admit evidence\npresented by the prosecutor if its probative value is outweighed by\nthe danger of unfair prejudice to the defendant.\n","sortOrder":158},{"sectionNumber":"138","sectionType":"section","heading":"Exclusion of improperly or illegally obtained evidence","content":"138 Exclusion of improperly or illegally obtained evidence\n(1) Evidence that was obtained—\n(a) improperly or in contravention of an Australian law; or\n(b) in consequence of an impropriety or of a contravention of an\nAustralian law;\nmust not be admitted unless the desirability of admitting the evidence\noutweighs the undesirability of admitting evidence that has been\nobtained in the way in which the evidence was obtained.\n\n(2) Without limiting subsection (1), evidence of an admission that was\nmade during or in consequence of questioning, and evidence obtained\nin consequence of the admission, is taken to have been obtained\nimproperly if the person conducting the questioning—\n(a) did, or omitted to do, an act in the course of the questioning even\nthough the person knew or ought reasonably to have known that\nthe act or omission was likely to impair substantially the ability\nof the person being questioned to respond rationally to the\nquestioning; or\n(b) made a false statement in the course of the questioning even\nthough the person knew or ought reasonably to have known that\nthe statement was false and that making the false statement was\nlikely to cause the person who was being questioned to make an\n(3) Without limiting the matters that the court may take into account\nunder subsection (1), it must take into account—\n(a) the probative value of the evidence; and\n(b) the importance of the evidence in the proceeding; and\n(c) the nature of the relevant offence, cause of action or defence and\nthe nature of the subject matter of the proceeding; and\n(d) the gravity of the impropriety or contravention; and\n(e) whether the impropriety or contravention was deliberate or\nreckless; and\n(f) whether the impropriety or contravention was contrary to or\ninconsistent with a right of a person recognised by the\nInternational Covenant on Civil and Political Rights; and\n(g) whether any other proceeding (whether or not in a court) has\nbeen or is likely to be taken in relation to the impropriety or\ncontravention; and\n\nDiscretionary and mandatory exclusions Part 3.11\n(h) the difficulty (if any) of obtaining the evidence without\nimpropriety or contravention of an Australian law.\nNote The International Covenant on Civil and Political Rights\nis accessible at www.legislation.act.gov.au/updates/humanrights/.\n","sortOrder":159},{"sectionNumber":"139","sectionType":"section","heading":"Cautioning of people","content":"139 Cautioning of people\n(1) For section 138 (1) (a), evidence of a statement made or act done by\na person during questioning is taken to have been obtained\nimproperly if—\n(a) the person was under arrest for an offence at the time; and\n(b) the questioning was conducted by an investigating official who\nwas at the time empowered, because of the office that the official\nheld, to arrest the person; and\n(c) before starting the questioning the investigating official did not\ncaution the person that the person does not have to say or do\nanything but that anything the person does say or do may be used\nin evidence.\n(2) For section 138 (1) (a), evidence of a statement made or an act done\nby a person during questioning is taken to have been obtained\nimproperly if—\n(a) the questioning was conducted by an investigating official who\ndid not have the power to arrest the person; and\n(b) the statement was made, or the act was done, after the\ninvestigating official formed a belief that there was sufficient\nevidence to establish that the person has committed an offence;\nand\n(c) the investigating official did not, before the statement was made\nor act was done, caution the person that the person does not have\nto say or do anything but that anything the person does say or do\nmay be used in evidence.\n\n(3) The caution must be given in, or translated into, a language in which\nthe person is able to communicate with reasonable fluency, but need\nnot be given in writing unless the person cannot hear adequately.\n(4) Subsections (1), (2) and (3) do not apply so far as any Australian law\nrequires the person to answer questions put by, or do things required\nby, the investigating official.\n(5) A reference in subsection (1) to a person who is under arrest includes\na reference to a person who is in the company of an investigating\nofficial for the purpose of being questioned, if—\n(a) the official believes that there is sufficient evidence to establish\nthat the person has committed an offence that is to be the subject\nof the questioning; or\n(b) the official would not allow the person to leave if the person\nwished to do so; or\n(c) the official has given the person reasonable grounds for\nbelieving that the person would not be allowed to leave if the\nperson wished to do so.\n(6) A person is not treated as being under arrest only because of\nsubsection (5) if—\n(a) the official is exercising functions in relation to people or goods\nentering or leaving Australia and the official does not believe\nthe person has committed an offence against a Commonwealth\nlaw; or\n(b) the official is exercising a function under an Australian law to\ndetain and search the person or to require the person to provide\ninformation or to answer questions.\n\nStandard of proof Part 4.1\nNote This chapter is about the proof of matters in a proceeding.\n• Pt 4.1 is about the standard of proof in civil proceedings and\ncriminal proceedings.\n• Pt 4.2 is about matters that do not require proof in a proceeding.\n• Pt 4.3 makes easier the proof of the matters dealt with in that part.\n• Pt 4.4 is about requirements that evidence be corroborated.\n• Pt 4.5 requires judges to warn juries about the potential unreliability\nof certain kinds of evidence.\n• Pt 4.6 sets out procedures for proving certain other matters.\n","sortOrder":160},{"sectionNumber":"140","sectionType":"section","heading":"Civil proceedings—standard of proof","content":"140 Civil proceedings—standard of proof\n(1) In a civil proceeding, the court must find the case of a party proved if\nit is satisfied that the case has been proved on the balance of\nprobabilities.\ndeciding whether it is satisfied, it must take into account—\n(a) the nature of the cause of action or defence; and\n(b) the nature of the subject matter of the proceeding; and\n(c) the gravity of the matters alleged.\n","sortOrder":161},{"sectionNumber":"141","sectionType":"section","heading":"Criminal proceedings—standard of proof","content":"141 Criminal proceedings—standard of proof\n(1) In a criminal proceeding, the court must not find the case of the\nprosecution proved unless it is satisfied that it has been proved\nbeyond reasonable doubt.\n(2) In a criminal proceeding, the court must find the case of a defendant\nproved if it is satisfied that the case has been proved on the balance\nof probabilities.\n\n","sortOrder":162},{"sectionNumber":"142","sectionType":"section","heading":"Admissibility of evidence—standard of proof","content":"142 Admissibility of evidence—standard of proof\n(1) Except as otherwise provided by this Act, in a proceeding the court\nmust find that the facts necessary for deciding—\n(a) a question whether evidence should be admitted or not admitted,\nwhether in the exercise of a discretion or not; or\n(b) any other question arising under this Act;\nhave been proved if it is satisfied that they have been proved on the\nbalance of probabilities.\n(2) In deciding whether it is satisfied, the matters that the court must take\ninto account include—\n(a) the importance of the evidence in the proceeding; and\n(b) the gravity of the matters alleged in relation to the question.\n\nJudicial notice Part 4.2\n","sortOrder":163},{"sectionNumber":"143","sectionType":"section","heading":"Matters of law","content":"143 Matters of law\n(1) Proof is not required about the provisions and coming into operation\n(all or in part) of—\n(a) an Act or Territory ordinance, an Imperial Act in force in\nAustralia, a Commonwealth Act, a State Act or an Act or\nordinance of another Territory; or\n(b) a regulation, rule or by-law made, or purporting to be made,\nunder an Act or ordinance mentioned in paragraph (a); or\n(c) a proclamation or order of the Governor-General, the Governor\nof a State or the Administrator or Executive of a Territory made,\nor purporting to be made, under an Act or ordinance mentioned\nin paragraph (a); or\n(d) an instrument of a legislative character (for example, a rule of\ncourt) made, or purporting to be made, under an Act or\nordinance mentioned in paragraph (a), that is an instrument\nrequired by or under a law to be published, or the making of\nwhich is required by or under a law to be notified, in any\ngovernment or official gazette (however described).\n(2) A judge may inform himself or herself about those matters in any way\nthe judge thinks fit.\n(3) A reference in this section to an Act that is an Act of an Australian\nParliament includes a reference to a private Act passed by the\nParliament.\nNote The Commonwealth Act, s 5 extends the operation of the equivalent\nCommonwealth section to proceedings in all Australian courts.\n\n","sortOrder":164},{"sectionNumber":"144","sectionType":"section","heading":"Matters of common knowledge","content":"144 Matters of common knowledge\n(1) Proof is not required about knowledge that is not reasonably open to\nquestion and is—\n(a) common knowledge in the place in which the proceeding is\nbeing held or generally; or\n(b) capable of verification by reference to a document the authority\nof which cannot reasonably be questioned.\n(2) The judge may acquire knowledge mentioned in subsection (1) in any\nway the judge thinks fit.\n(3) The court (including, if there is a jury, the jury) must take knowledge\nmentioned in subsection (1) into account.\n(4) The judge must give a party the opportunity to make submissions, and\nto refer to relevant information, relating to the acquiring or taking into\naccount of knowledge mentioned in subsection (1) that is necessary\nto ensure that the party is not unfairly prejudiced.\n","sortOrder":165},{"sectionNumber":"145","sectionType":"section","heading":"Certain Crown certificates","content":"145 Certain Crown certificates\nThis part does not exclude the application of the principles and rules\nof common law and equity relating to the effect of a certificate given\nby or on behalf of the Crown in relation to a matter of international\naffairs.\n\nGeneral Division 4.3.1\n","sortOrder":166},{"sectionNumber":"146","sectionType":"section","heading":"Evidence produced by processes, machines and other","content":"146 Evidence produced by processes, machines and other\ndevices\n(1) This section applies to a document or thing—\n(a) that is produced completely or partly by a device or process; and\n(b) that is tendered by a party who asserts that, in producing the\ndocument or thing, the device or process has produced a\nparticular outcome.\n(2) If it is reasonably open to find that the device or process is one that,\nor is of a kind that, if properly used, ordinarily produces that outcome,\nit is presumed (unless evidence sufficient to raise doubt about the\npresumption is presented) that, in producing the document or thing on\nthe occasion in question, the device or process produced that\noutcome.\nIt would not be necessary to call evidence to prove that a photocopier normally\nproduced complete copies of documents and that it was working properly when it\nwas used to photocopy a particular document.\n","sortOrder":167},{"sectionNumber":"147","sectionType":"section","heading":"Documents produced by processes, machines and other","content":"147 Documents produced by processes, machines and other\ndevices in the course of business\n(1) This section applies to a document—\n(a) that is produced completely or partly by a device or process; and\n(b) that is tendered by a party who asserts that, in producing the\ndocument, the device or process has produced a particular\noutcome.\n\n(2) If—\n(a) the document is, or was at the time it was produced, part of the\nrecords of, or kept for the purposes of, a business (whether or\nnot the business is still in existence); and\n(b) the device or process is or was at that time used for the purposes\nof the business;\nit is presumed (unless evidence sufficient to raise doubt about the\npresumption is presented) that, in producing the document on the\noccasion in question, the device or process produced that outcome.\n(3) Subsection (2) does not apply to the contents of a document that was\nproduced—\n(a) for the purpose of conducting, or for or in contemplation of or\nin connection with, an Australian or overseas proceeding; or\n(b) in connection with an investigation relating or leading to a\ncriminal proceeding.\nNote The Commonwealth Act, s 182 gives the Commonwealth Act, s 147 a\n","sortOrder":168},{"sectionNumber":"148","sectionType":"section","heading":"Evidence of certain acts of justices, Australian lawyers","content":"148 Evidence of certain acts of justices, Australian lawyers\nand notaries public\nIt is presumed, unless the contrary is proved, that a document was\nattested or verified by, or signed or acknowledged before, a justice of\nthe peace, Australian lawyer or notary public, if—\n(a) an Australian law requires, authorises or permits it to be attested,\nverified, signed or acknowledged by a justice of the peace,\nAustralian lawyer or notary public; and\n(b) it purports to have been attested, verified, signed or\nacknowledged in that way.\n\nGeneral Division 4.3.1\n","sortOrder":169},{"sectionNumber":"149","sectionType":"section","heading":"Attestation of documents","content":"149 Attestation of documents\nIt is not necessary to present the evidence of an attesting witness to a\ndocument (other than a testamentary document) to prove that the\ndocument was signed or attested as it purports to have been signed or\nattested.\nNote The Commonwealth Act, s 182 gives the Commonwealth Act, s 149 a\n","sortOrder":170},{"sectionNumber":"150","sectionType":"section","heading":"Seals and signatures","content":"150 Seals and signatures\n(1) If the imprint of a seal appears on a document and purports to be the\nimprint of—\n(a) a Royal Great Seal; or\n(b) the Great Seal of Australia; or\n(c) another seal of the Commonwealth; or\n(d) a seal of a State, another Territory or a foreign country; or\n(e) the seal of a body (including a court or a tribunal), or a body\ncorporate, established by or under Royal Charter or by an\nAustralian law or the law of a foreign country;\nit is presumed, unless the contrary is proved, that the imprint is the\nimprint of the seal, and the document was sealed as it purports to have\nbeen sealed.\nNote The Commonwealth Act has a different s (1).\n(2) If the imprint of a seal appears on a document and purports to be the\nimprint of the seal of an office holder, it is presumed, unless the\ncontrary is proved, that—\n(a) the imprint is the imprint of the seal; and\n(b) the document was sealed by the office holder acting in the office\nholder’s official capacity; and\n\n(c) the office holder held the relevant office when the document was\nsealed.\n(3) If a document purports to have been signed by an office holder in the\noffice holder’s official capacity, it is presumed, unless the contrary is\nproved, that—\n(a) the document was signed by the office holder acting in that\ncapacity; and\n(b) the office holder held the relevant office when the document was\nsigned.\noffice holder means—\n(a) the Sovereign; or\n(b) the Governor-General; or\n(c) the Governor of a State; or\n(d) the Administrator of a Territory; or\n(e) a person holding any other office under an Australian law or a\nlaw of a foreign country.\n(5) This section extends to documents sealed, and documents signed,\nbefore the commencement of this section.\nNote 1 The Commonwealth Act, s 5 extends the operation of the Commonwealth\nAct, s 150 to proceedings in all Australian courts.\nNote 2 Australian law—see the dictionary.\n","sortOrder":171},{"sectionNumber":"151","sectionType":"section","heading":"Seals of bodies established under State law","content":"151 Seals of bodies established under State law\nNote The Commonwealth Act includes a provision dealing with certain seals\nof bodies established by Royal Charter or a law of a State.\n\n","sortOrder":172},{"sectionNumber":"152","sectionType":"section","heading":"Documents produced from proper custody","content":"152 Documents produced from proper custody\nIf a document that is or purports to be more than 20 years old is\nproduced from proper custody, it is presumed, unless the contrary is\nproved, that—\n(a) the document is the document that it purports to be; and\n(b) if it purports to have been executed or attested by a person—it\nwas executed or attested by the person.\nNote The Commonwealth Act, s 182 gives the Commonwealth Act, s 152 a\n","sortOrder":173},{"sectionNumber":"153","sectionType":"section","heading":"Gazettes and other official documents","content":"153 Gazettes and other official documents\n(1) It is presumed, unless the contrary is proved, that a document\npurporting—\n(a) to be any government or official gazette (however described) of\nthe Territory, the Commonwealth, a State, another Territory or\na foreign country; or\n(b) to have been printed by the government printer or the\ngovernment or official printer of the Commonwealth, a State or\nanother Territory; or\n(c) to have been printed by authority of the government of the\nTerritory, the Commonwealth, a State, another Territory or a\nforeign country;\nis what it purports to be and was published on the day on which it\npurports to have been published.\n\n(2) If—\n(a) there is produced to a court—\n(i) a copy of any government or official gazette (however\ndescribed) of the Territory, the Commonwealth, a State,\nanother Territory or a foreign country; or\n(ii) a document that purports to have been printed by the\ngovernment printer or the government or official printer of\nthe Commonwealth, a State or another Territory; or\n(iii) a document that purports to have been printed by authority\nof the government of the Territory, the Commonwealth, a\nState, another Territory or a foreign country; and\n(b) the doing of an act—\n(i) by the Governor-General or by the Governor of a State or\nthe Administrator of a Territory; or\n(ii) by a person authorised or empowered to do the act by an\nAustralian law or a law of a foreign country;\nis notified or published in the copy or document;\nit is presumed, unless the contrary is proved, that the act was done\nand, if the day on which the act was done appears in the copy or\ndocument, it was done on that day.\nAct, s 153 to proceedings in all Australian courts.\n\n","sortOrder":174},{"sectionNumber":"154","sectionType":"section","heading":"Documents published by authority of Parliaments etc","content":"154 Documents published by authority of Parliaments etc\nIt is presumed, unless the contrary is proved, that a document\npurporting to have been printed by authority of an Australian\nParliament, a house of an Australian Parliament, a committee of an\nAustralian Parliament or of a house of an Australian Parliament—\n(a) is what it purports to be; and\n(b) was published on the day on which it purports to have been\npublished.\n","sortOrder":175},{"sectionNumber":"155","sectionType":"section","heading":"Evidence of official records","content":"155 Evidence of official records\n(1) Evidence of a Commonwealth record or public document of the\nTerritory, a State or another Territory may be presented by producing\na document that—\n(a) purports to be the record or document and to be signed or sealed\nby—\n(i) a Minister; or\n(ii) a person who might reasonably be supposed to have\ncustody of the record or document; or\n(b) purports to be a copy of or extract from the record or document\nthat is certified to be a true copy or extract by—\n(i) a Minister; or\n(ii) a person who might reasonably be supposed to have\ncustody of the record or document.\n(2) If the document is produced, it is presumed (unless evidence\nsufficient to raise doubt about the presumption is presented) that—\n(a) the document is the record, public document, copy or extract that\nit purports to be; and\n\n(b) the Minister or person—\n(i) signed or sealed the record; or\n(ii) certified the copy or extract as a true copy or extract.\nMinister means—\n(a) in relation to a Commonwealth record—a Commonwealth\nMinister; and\n(b) in relation to a public document of a State or another Territory—\na Minister of the State or Territory.\nNote 1 For the meaning of Minister in relation to an ACT public document, see\nthe Legislation Act, s 162.\nNote 2 Subsection (3) is not in the Commonwealth Act or NSW Act.\n","sortOrder":176},{"sectionNumber":"155A","sectionType":"section","heading":"Evidence of Commonwealth documents","content":"155A Evidence of Commonwealth documents\nNote The Commonwealth Act includes a provision that relates to evidence of\n","sortOrder":177},{"sectionNumber":"156","sectionType":"section","heading":"Public documents","content":"156 Public documents\n(1) A document that purports to be a copy of, or an extract from or\nsummary of, a public document and to have been—\n(a) sealed with the seal of a person who, or a body that, might\nreasonably be supposed to have the custody of the public\ndocument; or\n(b) certified as a copy, extract or summary by a person who might\nreasonably be supposed to have custody of the public document;\nis presumed, unless the contrary is proved, to be a copy of the public\ndocument, or an extract from or summary of the public document.\n\n(2) If an officer entrusted with the custody of a public document is\nrequired by a court to produce the public document, it is sufficient\ncompliance with the requirement for the officer to produce a copy of,\nor extract from, the public document if it purports to be signed and\ncertified by the officer as a true copy or extract.\n(3) It is sufficient production of a copy or extract for subsection (2) if the\nofficer sends it by prepaid post, or delivers it, to—\n(a) the proper officer of the court in which it is to be produced; or\n(b) the person before whom it is to be produced.\n(4) The court before which a copy or extract is produced under\nsubsection (2) may direct the officer to produce the original public\ndocument.\nNote The Commonwealth Act, s 182 gives the Commonwealth Act, s 156 a\n","sortOrder":178},{"sectionNumber":"157","sectionType":"section","heading":"Public documents relating to court processes","content":"157 Public documents relating to court processes\nEvidence of a public document that is a judgment, act or other process\nof an Australian court or foreign court, or that is a document lodged\nwith an Australian court or foreign court, may be presented by\nproducing a document that purports to be a copy of the public\ndocument and that—\n(a) is proved to be an examined copy; or\n(b) purports to be sealed with the seal of that court; or\n(c) purports to be signed by a judge, magistrate, registrar or other\nproper officer of that court.\nAct, s 157 to proceedings in all Australian courts.\n\n","sortOrder":179},{"sectionNumber":"158","sectionType":"section","heading":"Evidence of certain public documents","content":"158 Evidence of certain public documents\n(a) a public document, or a certified copy of a public document, of\na State or another Territory is admissible for a purpose in the\nState or other Territory under the law of the State or other\nTerritory; and\n(b) it purports to be sealed, or signed and sealed, or signed alone, as\ndirected by the law of the State or other Territory;\nit is admissible in evidence to the same extent and for that purpose in\nall ACT courts—\n(c) without proof of—\n(i) the seal or signature; or\n(ii) the official character of the person appearing to have\nsigned it; and\n(d) without further proof in every case in which the original\ndocument could have been received in evidence.\n(2) A public document of a State or another Territory that is admissible\nin evidence for any purpose in the State or other Territory under the\nlaw of that State or Territory without proof of—\n(a) the seal or signature authenticating the document; or\n(b) the judicial or official character of the person appearing to have\nsigned the document;\nis admissible in evidence to the same extent and for any purpose in\nall ACT courts without that proof.\n(3) This section only applies to documents that are public records of a\nState or another Territory.\n\nMatters relating to post and communications Division 4.3.3\n","sortOrder":180},{"sectionNumber":"159","sectionType":"section","heading":"Official statistics","content":"159 Official statistics\nA document that purports—\n(a) to be published by the Australian statistician; and\n(b) to contain statistics or abstracts compiled and analysed by the\nAustralian statistician under the Census and Statistics Act 1905\n(Cwlth);\nis evidence that the statistics or abstracts were compiled and analysed\nby the Australian statistician under that Act.\nAct, s 159 to proceedings in all Australian courts.\n","sortOrder":181},{"sectionNumber":"Div 4","sectionType":"division","heading":"3.3 Matters relating to post and","content":"Division 4.3.3 Matters relating to post and\ncommunications\n","sortOrder":182},{"sectionNumber":"160","sectionType":"section","heading":"Postal articles","content":"160 Postal articles\n(1) It is presumed (unless evidence sufficient to raise doubt about the\npresumption is presented) that a postal article sent by prepaid post\naddressed to a person at a stated address in Australia or in an external\nterritory was received at that address on the 7th working day after the\nday it was posted.\nworking day means a day that is not—\n(a) a Saturday or a Sunday; or\n\nDivision 4.3.3 Matters relating to post and communications\n(b) a public holiday or a bank holiday in the place to which the\npostal article was addressed.\nNote The Commonwealth Act, s 182 gives the Commonwealth Act, s 160 a\nwider application in relation to postal articles sent by a Commonwealth\nagency.\n","sortOrder":183},{"sectionNumber":"161","sectionType":"section","heading":"Electronic communications","content":"161 Electronic communications\n(1) If a document purports to contain a record of an electronic\ncommunication other than one mentioned in section 162, it is\npresumed (unless evidence sufficient to raise doubt about the\npresumption is presented) that the communication—\n(a) was sent or made in the form of electronic communication that\nappears from the document to have been the form by which it\nwas sent or made; and\n(b) was sent or made by or on behalf of the person by or on whose\nbehalf it appears from the document to have been sent or made;\nand\n(c) was sent or made on the day on which, at the time at which and\nfrom the place from which it appears from the document to have\nbeen sent or made; and\n(d) was received at the destination to which it appears from the\ndocument to have been sent; and\n(e) if it appears from the document that the sending of the\ncommunication ended at a particular time—was received at that\ndestination at that time.\n\nMatters relating to post and communications Division 4.3.3\nNote The Commonwealth Act, s 182 gives the Commonwealth Act, s 161 a\n","sortOrder":184},{"sectionNumber":"162","sectionType":"section","heading":"Lettergrams and telegrams","content":"162 Lettergrams and telegrams\n(1) If a document purports to contain a record of a message transmitted\nby means of a lettergram or telegram, it is presumed (unless evidence\nsufficient to raise doubt about the presumption is presented) that the\nmessage was received by the person to whom it was addressed 24\nhours after the message was delivered to a post office for transmission\nas a lettergram or telegram.\nNote The Commonwealth Act, s 182 gives the Commonwealth Act, s 162 a\n","sortOrder":185},{"sectionNumber":"163","sectionType":"section","heading":"Proof of letters having been sent by Commonwealth","content":"163 Proof of letters having been sent by Commonwealth\nagencies\nNote The Commonwealth Act, s 163 includes a presumption about letters sent\nby Commonwealth agencies. The Commonwealth Act, s 5 extends the\noperation of the Commonwealth Act, s 163 to proceedings in all\nAustralian courts.\n\n","sortOrder":186},{"sectionNumber":"164","sectionType":"section","heading":"Corroboration requirements abolished","content":"164 Corroboration requirements abolished\n(1) It is not necessary that evidence on which a party relies be\ncorroborated.\n(2) Subsection (1) does not affect the operation of a rule of law that\nrequires corroboration in relation to the offence of perjury or a similar\nor related offence.\n(3) Despite any rule, whether of law or practice, to the contrary, but\nsubject to the other provisions of this Act, if there is a jury, it is not\nnecessary that the judge—\n(a) warn the jury that it is dangerous to act on uncorroborated\nevidence or give a warning to the same or similar effect; or\n(b) give a direction relating to the absence of corroboration.\n\nWarnings and information Part 4.5\n","sortOrder":187},{"sectionNumber":"165","sectionType":"section","heading":"Unreliable evidence","content":"165 Unreliable evidence\n(1) This section applies to evidence of a kind that may be unreliable,\nincluding the following kinds of evidence:\n(a) evidence in relation to which part 3.2 (Hearsay) or part 3.4\n(Admissions) applies;\n(b) identification evidence;\n(c) evidence the reliability of which may be affected by age, ill\nhealth (whether physical or mental), injury or the like;\n(d) evidence given in a criminal proceeding by a witness who might\nreasonably be supposed to have been criminally concerned in\nthe events giving rise to the proceeding;\n(e) evidence given in a criminal proceeding by a witness who is a\nprison informer;\n(f) oral evidence of questioning by an investigating official of a\ndefendant that is recorded in writing and has not been signed, or\notherwise acknowledged in writing, by the defendant;\n(g) in a proceeding against the estate of a deceased person—\nevidence presented by or on behalf of a person seeking relief in\nthe proceeding about a matter about which the deceased person\ncould have given evidence if the deceased person were alive.\n(2) If there is a jury and a party requests, the judge must—\n(a) warn the jury that the evidence may be unreliable; and\n(b) tell the jury about matters that may cause it to be unreliable; and\n(c) warn the jury of the need for caution in deciding whether to\naccept the evidence and the weight to be given to it.\n\n(3) The judge need not comply with subsection (2) if there are good\nreasons for not doing so.\n(4) It is not necessary that a particular form of words be used in giving\nthe warning or information.\n(5) This section does not affect any other power of the judge to give a\nwarning to, or to inform, the jury.\n(6) Subsection (2) does not permit a judge to warn or tell a jury in\nproceedings before it in which a child gives evidence that the\nreliability of the child’s evidence may be affected by the age of the\nchild.\n(7) Any warning or information in relation to that matter may be given\nonly in accordance with section 165A (2) and (3).\n","sortOrder":188},{"sectionNumber":"165A","sectionType":"section","heading":"Warnings in relation to children’s evidence","content":"165A Warnings in relation to children’s evidence\n(1) A judge in a proceeding in which evidence is given by a child before\na jury must not do any of the following:\n(a) warn the jury, or suggest to the jury, that children as a class are\nunreliable witnesses;\n(b) warn the jury, or suggest to the jury, that the evidence of children\nas a class is inherently less credible or reliable, or requires more\ncareful scrutiny, than the evidence of adults;\n(c) give a warning, or suggestion to the jury, about the unreliability\nof the particular child’s evidence solely on account of the child’s\nage;\n(d) in a criminal proceeding—give a general warning to the jury of\nthe danger of convicting on the uncorroborated evidence of a\nwitness who is a child.\n\nWarnings and information Part 4.5\n(2) Subsection (1) does not prevent the judge, at the request of a party,\nfrom—\n(a) telling the jury that the evidence of the particular child may be\nunreliable and the reasons why it may be unreliable; and\n(b) warning or telling the jury about the need for caution in deciding\nwhether to accept the evidence of the particular child and the\nweight to be given to it;\nif the party has satisfied the court that there are circumstances (other\nthan solely the age of the child) particular to the child that affect the\nreliability of the child’s evidence and that warrant the giving of the\nwarning or information.\n(3) This section does not affect any other power of a judge to give a\nwarning to, or to inform, the jury.\n","sortOrder":189},{"sectionNumber":"165B","sectionType":"section","heading":"Delay in prosecution","content":"165B Delay in prosecution\n(1) This section applies in a criminal proceeding in which there is a jury.\n(2) If the court, on application by the defendant, is satisfied that the\ndefendant has suffered a significant forensic disadvantage because of\nthe consequences of delay, the court must tell the jury about the nature\nof that disadvantage and the need to take that disadvantage into\naccount when considering the evidence.\n(3) The judge need not comply with subsection (2) if there is a good\nreason for not doing so.\n(4) It is not necessary that a particular form of words be used in telling\nthe jury about the nature of the significant forensic disadvantage\nsuffered and the need to take the disadvantage into account, but the\njudge must not in any way suggest to the jury that it would be\ndangerous or unsafe to convict the defendant solely because of the\ndelay or the forensic disadvantage suffered because of the\nconsequences of the delay.\n\n(5) The judge must not warn or tell the jury about any forensic\ndisadvantage the defendant may have suffered because of delay\nexcept in accordance with this section, but this section does not affect\nany other power of the judge to give a warning to, or to inform, the\njury.\n(6) For this section:\n(a) delay includes delay between the alleged offence and its being\nreported; and\n(b) significant forensic disadvantage is not to be regarded as being\nestablished by the mere existence of a delay.\n\nDivision 4.6.1 Requests to produce documents or\ncall witnesses\nNote The Commonwealth Act, s 182 gives the Commonwealth Act, pt 4.6,\ndiv 1 a wider application in relation to Commonwealth records and\ncertain Commonwealth documents.\n","sortOrder":190},{"sectionNumber":"166","sectionType":"section","heading":"Meaning of request—div 4.6.1","content":"166 Meaning of request—div 4.6.1\nIn this division:\nrequest means a request that a party (the requesting party) makes to\nanother party to do 1 or more of the following:\n(a) to produce to the requesting party all or part of a stated document\nor thing;\n(b) to permit the requesting party, adequately and in an appropriate\nway, to examine, test or copy all or part of a stated document or\nthing;\n(c) to call as a witness a stated person believed to be concerned in\nproduction or maintenance of a stated document or thing;\n(d) to call as a witness a stated person in whose possession or under\nwhose control a stated document or thing is believed to be or to\nhave been at any time;\n(e) in relation to a document of the kind mentioned in the dictionary,\npart 2, section 8, definition of document, paragraph (b) or (c)—\nto permit the requesting party, adequately and in an appropriate\nway, to examine and test the document and the way in which it\nwas produced and has been kept;\n(f) in relation to evidence of a previous representation—to call as a\nwitness the person who made the previous representation;\n\n(g) in relation to evidence that a person has been convicted of an\noffence, that is evidence to which section 92 (2) (Exceptions)\napplies—to call as a witness a person who gave evidence in the\nproceeding in which the person was convicted of the offence.\n","sortOrder":191},{"sectionNumber":"167","sectionType":"section","heading":"Requests may be made about certain matters","content":"167 Requests may be made about certain matters\nA party may make a reasonable request to another party for the\npurpose of deciding a question that relates to—\n(a) a previous representation; or\n(b) evidence of a conviction of a person for an offence; or\n(c) the authenticity, identity or admissibility of a document or thing.\n","sortOrder":192},{"sectionNumber":"168","sectionType":"section","heading":"Time limits for making certain requests","content":"168 Time limits for making certain requests\n(1) If a party has given to another party written notice of its intention to\npresent evidence of a previous representation, the other party may\nonly make a request to the party relating to the representation if the\nrequest is made before the end of 21 days after the day the notice is\ngiven.\n(2) Despite subsection (1), the court may give the other party leave to\nmake a request relating to the representation after the end of the\n21-day period if it is satisfied that there is good reason to do so.\n(3) If a party has given to another party written notice of its intention to\npresent evidence of a person’s conviction of an offence in order to\nprove a fact in issue, the other party may only make a request relating\nto evidence of the conviction if the request is made before the end of\n21 days after the day the notice is given.\n(4) Despite subsection (3), the court may give the other party leave to\nmake a request relating to evidence of the conviction after the end of\nthe 21-day period if it is satisfied that there is good reason to do so.\n\n(5) If a party has served on another party a copy of a document that it\nintends to tender in evidence, the other party may only make a request\nrelating to the document if the request is made before the end of 21\ndays after the day the copy is served.\n(6) If the copy of the document served under subsection (5) is\naccompanied by, or has endorsed on it, a notice stating that the\ndocument must be tendered to prove the contents of another\ndocument, the other party may only make a request relating to the\nother document if the request is made before the end of 21 days after\nthe day the copy is served.\n(7) Despite subsections (5) and (6), the court may give the other party\nleave to make a request relating to the document, or other document,\nafter the end of the 21-day period if it is satisfied that there is good\nreason to do so.\n","sortOrder":193},{"sectionNumber":"169","sectionType":"section","heading":"Failure to comply with requests","content":"169 Failure to comply with requests\n(1) If a party has, without reasonable cause, failed to comply with a\nrequest mentioned in section 168, the court may, on application, make\n1 or more of the following orders:\n(a) an order directing the party to comply with the request;\n(b) an order that the party produce a stated document or thing, or\ncall as a witness a stated person, as mentioned in section 166\n(Meaning of request—div 4.6.1);\n(c) an order that the evidence in relation to which the request was\nmade is not to be admitted in evidence;\n(d) an order in relation to adjournment or costs that is just.\n(2) If the party had, within a reasonable time after receiving the request,\ntold the other party that it refuses to comply with the request, any\napplication under subsection (1) by the other party must be made\nwithin a reasonable time after being told about the refusal.\n\n(3) The court may, on application, direct that evidence in relation to\nwhich a request was made must not be admitted in evidence if an\norder made by it under subsection (1) (a) or (b) is not complied with.\n(4) Without limiting the circumstances that may constitute reasonable\ncause for a party to fail to comply with a request, it is reasonable cause\nto fail to comply with a request if—\n(a) the document or thing to be produced is not available to the\nparty; or\n(b) the existence and contents of the document are not in issue in\nthe proceeding in which evidence of the document is proposed\nto be presented; or\n(c) the person to be called as a witness is not available.\n(5) Without limiting the matters that the court may take into account in\nrelation to the exercise of a power under subsection (1), it must take\ninto account—\n(a) the importance in the proceeding of the evidence in relation to\nwhich the request was made; and\n(b) whether there is likely to be a dispute about the matter to which\nthe evidence relates; and\n(c) whether there is a reasonable doubt as to the authenticity or\naccuracy of the evidence that is, or the document the contents of\nwhich are, sought to be proved; and\n(d) whether there is a reasonable doubt as to the authenticity of the\ndocument or thing that is sought to be tendered; and\n(e) if the request relates to evidence of a previous representation—\nwhether there is a reasonable doubt as to the accuracy of the\nrepresentation or of the evidence on which it was based; and\n\n(f) for a request mentioned in section 166, definition of request,\nparagraph (g)—whether someone else is available to give\nevidence about the conviction or the facts that were in issue in\nthe proceeding in which the conviction was obtained; and\n(g) whether compliance with the request would involve undue\nexpense or delay or would not be reasonably practicable; and\n(h) the nature of the proceeding.\nNote The dictionary, pt 2, s 5 is about the availability of documents and things\nand pt 2, s 4 is about the availability of people.\n\nDivision 4.6.2 Proof of certain matters by affidavits or written statements\nDivision 4.6.2 Proof of certain matters by affidavits\nor written statements\n170 Evidence relating to certain matters\n(1) Evidence of a fact that is, because of a provision of this Act mentioned\nin table 170, to be proved in relation to a document or thing may be\ngiven by a person permitted under section 171 to give the evidence.\nTable 170\ncolumn 1\nitem\ncolumn 2\nprovisions of this Act\ncolumn 3\nsubject matter\n1 section 48 proof of contents of\ndocuments\n2 section 63, section 64\nand section 65\nhearsay exceptions for\nfirst-hand hearsay\n3 section 69 hearsay exception for\nbusiness records\n4 section 70 hearsay exception for tags,\nlabels and other writing\n5 section 71 hearsay exception for\nelectronic communications\n6 the provisions of\npart 4.3\nfacilitation of proof\nNote The Commonwealth Act, s 170, table includes a reference to the\nCommonwealth Act, s 182 (Commonwealth records).\n(2) Evidence may be given by affidavit or, if the evidence relates to a\npublic document, by a written statement.\n\nProof of certain matters by affidavits or written statements Division 4.6.2\n","sortOrder":194},{"sectionNumber":"171","sectionType":"section","heading":"People who may give evidence mentioned in s 170","content":"171 People who may give evidence mentioned in s 170\n(1) Evidence mentioned in section 170 may be given by—\n(a) a person who, at the relevant time or afterwards, had a position\nof responsibility in relation to making or keeping the document\nor thing; or\n(b) except in the case of evidence of a fact that is to be proved in\nrelation to a document or thing because of section 63\n(Exception—civil proceedings if maker not available),\nsection 64 (Exception—civil proceedings if maker available) or\nsection 65 (Exception—criminal proceedings if maker not\navailable)—an authorised person.\n(2) Despite subsection (1) (b), evidence must not be given under this\nsection by an authorised person who, at the relevant time or\nafterwards, did not have a position of responsibility in relation to\nmaking or keeping the document or thing unless it appears to the court\n(a) it is not reasonably practicable for the evidence to be given by a\nperson who had, at the relevant time or afterwards, a position of\nresponsibility in relation to making or keeping the document or\nthing; or\n(b) having regard to all the circumstances of the case, undue\nexpense would be caused by calling the person mentioned in\nparagraph (a) as a witness.\nauthorised person means—\n(a) a person before whom an oath, declaration or affidavit may be\ntaken or made outside the ACT (including outside Australia)\nunder the Oaths and Affirmations Act 1984, section 11\n(Authority to administer oath etc); or\n(b) a police officer of or above the rank of sergeant; or\n\n(c) a person authorised by the Minister for this section.\nNote 1 Oath includes affirmation (see Legislation Act, dict, pt 1).\nNote 2 The Commonwealth Act and NSW Act contain a different definition of\nauthorised person.\n","sortOrder":195},{"sectionNumber":"172","sectionType":"section","heading":"Evidence based on knowledge, belief or information","content":"172 Evidence based on knowledge, belief or information\n(1) Despite chapter 3, the evidence may include evidence based on the\nknowledge and belief of the person who gives it, or on information\nthat the person has.\n(2) An affidavit or statement that includes evidence based on knowledge,\ninformation or belief must set out the source of the knowledge or\ninformation or the basis of the belief.\n","sortOrder":196},{"sectionNumber":"173","sectionType":"section","heading":"Notification of other parties","content":"173 Notification of other parties\n(1) A copy of the affidavit or statement must be served on each party a\nreasonable time before the hearing of the proceeding.\n(2) The party who tenders the affidavit or statement must, if another party\nrequests, call the deponent or person who made the statement to give\nevidence but need not otherwise do so.\n","sortOrder":197},{"sectionNumber":"174","sectionType":"section","heading":"Evidence of foreign law","content":"174 Evidence of foreign law\n(1) Evidence of a statute, proclamation, treaty or act of state of a foreign\ncountry may be presented in a proceeding by producing—\n(a) a book or pamphlet, containing the statute, proclamation, treaty\nor act of state, that purports to have been printed by the\ngovernment or official printer of the country or by authority of\nthe government or administration of the country; or\n(b) a book or other publication, containing the statute, proclamation,\ntreaty or act of state, that appears to the court to be a reliable\nsource of information; or\n\n(c) a book or pamphlet that is or would be used in the courts of the\ncountry to inform the courts about, or to prove, the statute,\nproclamation, treaty or act of state; or\n(d) a copy of the statute, proclamation, treaty or act of state that is\nproved to be an examined copy.\n(2) A reference in this section to a statute of a foreign country includes a\nreference to a regulation or by-law of the country.\n","sortOrder":198},{"sectionNumber":"175","sectionType":"section","heading":"Evidence of law reports of foreign countries","content":"175 Evidence of law reports of foreign countries\n(1) Evidence of the unwritten or common law of a foreign country may\nbe presented by producing a book containing reports of judgments of\ncourts of the country if the book is or would be used in the courts of\nthe country to inform the courts about the unwritten or common law\nof the country.\n(2) Evidence of the interpretation of a statute of a foreign country may be\npresented by producing a book containing reports of judgments of\ncourts of the country if the book is or would be used in the courts of\nthe country to inform the courts about the interpretation of the statute.\n","sortOrder":199},{"sectionNumber":"176","sectionType":"section","heading":"Questions of foreign law to be decided by judge","content":"176 Questions of foreign law to be decided by judge\nIf, in a proceeding in which there is a jury, it is necessary to ascertain\nthe law of another country which is applicable to the facts of the case,\nany question as to the effect of the evidence presented in relation to\nthat law is to be decided by the judge alone.\n","sortOrder":200},{"sectionNumber":"177","sectionType":"section","heading":"Certificates of expert evidence","content":"177 Certificates of expert evidence\n(1) Evidence of a person’s opinion may be presented by tendering a\ncertificate (an expert certificate) signed by the person that—\n(a) states the person’s name and address; and\n\n(b) states that the person has specialised knowledge based on the\nperson’s training, study or experience, as stated in the\ncertificate; and\n(c) sets out an opinion that the person holds and that is expressed to\nbe completely or substantially based on that knowledge.\n(2) Subsection (1) does not apply unless the party seeking to tender the\nexpert certificate has served on each other party—\n(a) a copy of the certificate; and\n(b) a written notice stating that the party proposes to tender the\ncertificate as evidence of the opinion.\n(3) Service must be effected not later than—\n(a) 21 days before the day of the hearing; or\n(b) if, on application by the party before or after service, the court\nsubstitutes a different period—the beginning of that period.\n(4) Service for subsection (2) may be proved by affidavit.\n(5) A party on whom the documents mentioned in subsection (2) are\nserved may, by written notice served on the party proposing to tender\nthe expert certificate, require the party to call the person who signed\nthe certificate to give evidence.\n(6) The expert certificate is not admissible as evidence if a requirement\nmentioned in subsection (5) is made.\n(7) The court may make an order in relation to costs that it considers just\nagainst a party who has, without reasonable cause, required a party to\ncall a person to give evidence under this section.\n","sortOrder":201},{"sectionNumber":"178","sectionType":"section","heading":"Convictions, acquittals and other judicial proceedings","content":"178 Convictions, acquittals and other judicial proceedings\n(1) This section applies to the following facts:\n(a) the conviction or acquittal before or by an applicable court of a\nperson charged with an offence;\n\n(b) the sentencing of a person to any punishment or pecuniary\npenalty by an applicable court;\n(c) an order by an applicable court;\n(d) the pendency or existence at any time before an applicable court\nof a civil or criminal proceeding.\n(2) Evidence of a fact to which this section applies may be given by a\ncertificate signed by a judge, magistrate or registrar or other proper\nofficer of the applicable court—\n(a) showing the fact, or purporting to contain particulars, of the\nrecord, indictment, conviction, acquittal, sentence, order or\nproceeding in question; and\n(b) stating the time and place of the conviction, acquittal, sentence,\norder or proceeding; and\n(c) stating the title of the applicable court.\n(3) A certificate given under this section showing a conviction, acquittal,\nsentence or order is also evidence of the particular offence or matter\nin relation to which the conviction, acquittal, sentence or order was\nhad, passed or made, if stated in the certificate.\n(4) A certificate given under this section showing the pendency or\nexistence of a proceeding is also evidence of the particular nature and\noccasion, or ground and cause, of the proceeding, if stated in the\ncertificate.\n(5) A certificate given under this section purporting to contain particulars\nof a record, indictment, conviction, acquittal, sentence, order or\nproceeding is also evidence of the matters stated in the certificate.\nacquittal includes the dismissal of the charge in question by an\napplicable court.\n\napplicable court means an Australian court or foreign court.\nNote Section 91 excludes evidence of certain judgments and convictions.\n","sortOrder":202},{"sectionNumber":"179","sectionType":"section","heading":"Proof of identity of convicted people—affidavits by","content":"179 Proof of identity of convicted people—affidavits by\nmembers of State or Territory police forces\n(1) This section applies if a member of a police force of a State or\nTerritory—\n(a) makes an affidavit in the form prescribed by regulation; and\n(b) states in the affidavit that the member is a fingerprint expert for\nthat police force.\n(2) For the purpose of proving before a court the identity of a person\nalleged to have been convicted in that State or Territory of an offence,\nthe affidavit is evidence in a proceeding that the person whose\nfingerprints are shown on a fingerprint card mentioned in the affidavit\nand marked for identification—\n(a) is the person mentioned in a certificate of conviction, or certified\ncopy of conviction annexed to the affidavit, as having been\nconvicted of an offence; and\n(b) was convicted of the offence; and\n(c) was convicted of any other offence of which the person is stated\nin the affidavit to have been convicted.\n(3) For this section, if a Territory does not have its own police force, the\npolice force exercising the policing functions of that Territory is taken\nto be the police force of that Territory.\n","sortOrder":203},{"sectionNumber":"180","sectionType":"section","heading":"Proof of identity of convicted people—affidavits by","content":"180 Proof of identity of convicted people—affidavits by\nmembers of Australian Federal Police\n(1) This section applies if a member of the Australian Federal Police—\n(a) makes an affidavit in the form prescribed by regulation; and\n\n(b) states in the affidavit that the member is a fingerprint expert for\nthe Australian Federal Police.\n(2) For the purpose of proving before a court the identity of a person\nalleged to have been convicted of an offence against a\nCommonwealth law, the affidavit is evidence in a proceeding that the\nperson whose fingerprints are shown on a fingerprint card mentioned\nin the affidavit and marked for identification—\n(a) is the person mentioned in a certificate of conviction, or certified\ncopy of conviction annexed to the affidavit, as having been\nconvicted of an offence; and\n(b) was convicted of the offence; and\n(c) was convicted of any other offence of which the person is stated\nin the affidavit to have been convicted.\n","sortOrder":204},{"sectionNumber":"181","sectionType":"section","heading":"Proof of service of statutory notifications, notices, orders","content":"181 Proof of service of statutory notifications, notices, orders\nand directions\n(1) The service, giving or sending under an Australian law of a written\nnotification, notice, order or direction may be proved by affidavit of\nthe person who served, gave or sent it.\n(2) A person who, for the purposes of a proceeding, makes an affidavit\nmentioned in this section is not, because of making the affidavit,\nexcused from attending for cross-examination if required to do so by\na party to the proceeding.\n\n","sortOrder":205},{"sectionNumber":"182","sectionType":"section","heading":"Application of certain sections in relation to","content":"182 Application of certain sections in relation to\nCommonwealth records\nNote The Commonwealth Act includes a provision that extends the operation\nof certain provisions of that Act to Commonwealth records.\n","sortOrder":206},{"sectionNumber":"183","sectionType":"section","heading":"Inferences","content":"183 Inferences\nIf a question arises about the application of a provision of this Act in\nrelation to a document or thing, the court may—\n(a) examine the document or thing; and\n(b) draw any reasonable inferences from it as well as from other\nmatters from which inferences may properly be drawn.\nNote The Commonwealth Act, s 182 gives the Commonwealth Act, s 183 a\n","sortOrder":207},{"sectionNumber":"184","sectionType":"section","heading":"Accused may admit matters and give consents","content":"184 Accused may admit matters and give consents\n(1) In or before a criminal proceeding, a defendant may—\n(a) admit matters of fact; and\n(b) give any consent;\nthat a party to a civil proceeding may make or give.\n(2) A defendant’s admission or consent is not effective for subsection (1)\nunless—\n(a) the defendant has been advised to do so by the defendant’s\nAustralian legal practitioner or legal counsel; or\n(b) the court is satisfied that the defendant understands the\nconsequences of making the admission or giving the consent.\n\n","sortOrder":208},{"sectionNumber":"185","sectionType":"section","heading":"Faith and credit to be given to documents properly","content":"185 Faith and credit to be given to documents properly\nauthenticated\nNote The Commonwealth Act includes a provision requiring faith and credit\nto be given to the public acts, records and judicial proceedings of a State\nor Territory.\n","sortOrder":209},{"sectionNumber":"186","sectionType":"section","heading":"Swearing of affidavits before justices of the peace,","content":"186 Swearing of affidavits before justices of the peace,\nnotaries public and lawyers\nNote The Commonwealth Act includes a provision about swearing of\naffidavits before justices of the peace, notaries public and lawyers for use\nin court proceedings involving the exercise of federal jurisdiction and in\ncourts of a Territory.\n","sortOrder":210},{"sectionNumber":"187","sectionType":"section","heading":"No privilege against self-incrimination for bodies","content":"187 No privilege against self-incrimination for bodies\ncorporate\n(1) This section applies if, under a territory law or in a proceeding, a body\ncorporate is required to—\n(a) answer a question or give information; or\n(b) produce a document or anything else; or\n(c) do any other act.\n(2) The body corporate is not entitled to fail to comply with the\nrequirement on the ground that answering the question, giving the\ninformation, producing the document or other thing or doing the other\nact might tend to incriminate the body or make the body liable to a\npenalty.\n\n","sortOrder":211},{"sectionNumber":"188","sectionType":"section","heading":"Impounding documents","content":"188 Impounding documents\nThe court may direct that a document that has been tendered or\nproduced before the court (whether or not it is admitted in evidence)\nmust be impounded and kept in the custody of an officer of the court\nor someone else for the period, and subject to the conditions, that the\ncourt thinks fit.\n","sortOrder":212},{"sectionNumber":"189","sectionType":"section","heading":"The voir dire","content":"189 The voir dire\n(1) If the decision about a question whether—\n(a) evidence should be admitted (whether in the exercise of a\ndiscretion or not); or\n(b) evidence can be used against a person; or\n(c) a witness is competent or compellable;\ndepends on the court finding that a particular fact exists, the question\nwhether that fact exists is, for this section, a preliminary question.\n(2) If there is a jury, a preliminary question whether—\n(a) particular evidence is evidence of an admission, or evidence to\nwhich section 138 (Exclusion of improperly or illegally obtained\nevidence) applies; or\n(b) evidence of an admission, or evidence to which section 138\napplies, should be admitted;\nis to be heard and decided in the jury’s absence.\n(3) In the hearing of a preliminary question about whether a defendant’s\nadmission should be admitted into evidence (whether in the exercise\nof a discretion or not) in a criminal proceeding, the issue of the\nadmission’s truth or untruth is to be disregarded unless the issue is\nintroduced by the defendant.\n(4) If there is a jury, the jury must not be present at a hearing to decide\nany other preliminary question unless the court otherwise orders.\n\n(5) Without limiting the matters that the court may take into account in\ndeciding whether to make an order under subsection (4), it must take\ninto account—\n(a) whether the evidence to be presented in the course of the hearing\nis likely to be prejudicial to the defendant; and\n(b) whether the evidence will be presented in the course of the\nhearing to decide the preliminary question; and\n(c) whether the evidence to be presented in the course of the hearing\nwould be admitted if presented at another stage of the hearing\n(other than in another hearing to decide a preliminary question\nor, in a criminal proceeding, a hearing in relation to sentencing).\n(6) Section 128 (11) (Privilege in relation to self-incrimination in other\nproceedings) does not apply to a hearing to decide a preliminary\nquestion.\n(7) In the application of chapter 3 to a hearing to decide a preliminary\nquestion, the facts in issue are taken to include the fact to which the\nhearing relates.\n(8) If a jury in a proceeding was not present at a hearing to decide a\npreliminary question, evidence must not be presented in the\nproceeding of evidence given by a witness at the hearing unless—\n(a) it is inconsistent with other evidence given by the witness in the\n(b) the witness has died.\n","sortOrder":213},{"sectionNumber":"190","sectionType":"section","heading":"Waiver of rules of evidence","content":"190 Waiver of rules of evidence\n(1) The court may, if the parties consent, by order dispense with the\napplication of any 1 or more of the provisions of—\n(a) division 2.1.3 (General rules about giving evidence),\ndivision 2.1.4 (Examination-in-chief and re-examination) or\ndivision 2.1.5 (Cross-examination); or\n\n(b) part 2.2 (Documents) or 2.3 (Other evidence); or\n(c) parts 3.2 to 3.8;\nin relation to particular evidence or generally.\n(2) In a criminal proceeding, a defendant’s consent is not effective for\nsubsection (1) unless—\n(a) the defendant has been advised to consent by the defendant’s\nAustralian legal practitioner or legal counsel; or\n(b) the court is satisfied that the defendant understands the\nconsequences of giving the consent.\n(3) In a civil proceeding, the court may order that any 1 or more of the\nprovisions mentioned in subsection (1) do not apply in relation to\nevidence if—\n(a) the matter to which the evidence relates is not genuinely in\ndispute; or\n(b) the application of the provisions would cause or involve\nunnecessary expense or delay.\n(4) Without limiting the matters that the court may take into account in\ndeciding whether to exercise the power given by subsection (3), it\nmust take into account—\n(a) the importance of the evidence in the proceeding; and\n(b) the nature of the cause of action or defence and the nature of the\nsubject matter of the proceeding; and\n(c) the probative value of the evidence; and\n(d) the powers of the court (if any) to adjourn the hearing, to make\nanother order or to give a direction in relation to the evidence.\n\n","sortOrder":214},{"sectionNumber":"191","sectionType":"section","heading":"Agreements as to facts","content":"191 Agreements as to facts\nagreed fact means a fact that the parties to a proceeding have agreed\nis not, for the purposes of the proceeding, to be disputed.\n(2) In a proceeding—\n(a) evidence is not required to prove the existence of an agreed fact;\nand\n(b) evidence may not be presented to contradict or qualify an agreed\nfact;\n(3) Subsection (2) does not apply unless the agreed fact—\n(a) is stated in an agreement in writing signed by the parties or by\nAustralian legal practitioners, legal counsel or prosecutors\nrepresenting the parties and presented in evidence in the\n(b) with the leave of the court, is stated by a party before the court\nwith the agreement of all other parties.\n","sortOrder":215},{"sectionNumber":"192","sectionType":"section","heading":"Leave, permission or direction may be given on","content":"192 Leave, permission or direction may be given on\nconditions\n(1) If, because of this Act, a court may give any leave, permission or\ndirection, the leave, permission or direction may be given on the\nconditions that the court thinks fit.\ndeciding whether to give the leave, permission or direction, it must\ntake into account—\n(a) the extent to which to do so would be likely to add unduly to, or\nto shorten, the length of the hearing; and\n\n(b) the extent to which to do so would be unfair to a party or witness;\nand\n(c) the importance of the evidence in relation to which the leave,\npermission or direction is sought; and\n(d) the nature of the proceeding; and\n(e) the power (if any) of the court to adjourn the hearing or to make\nanother order or to give a direction in relation to the evidence.\n","sortOrder":216},{"sectionNumber":"192A","sectionType":"section","heading":"Advance rulings and findings","content":"192A Advance rulings and findings\nWhere a question arises in a proceeding, that is a question about—\n(a) the admissibility or use of evidence proposed to be presented; or\n(b) the operation of a provision of this Act or another law in relation\nto evidence proposed to be presented; or\n(c) the giving of leave, permission or direction under section 192;\nthe court may, if it considers it to be appropriate to do so, give a ruling\nor make a finding in relation to the question before the evidence is\npresented in the proceeding.\n","sortOrder":217},{"sectionNumber":"193","sectionType":"section","heading":"Additional powers","content":"193 Additional powers\n(1) The powers of a court in relation to—\n(a) the discovery or inspection of documents; and\n(b) ordering disclosure and exchange of evidence, intended\nevidence, documents and reports;\nextend to enabling the court to make the orders that the court thinks\nfit (including orders about methods of inspection, adjournments and\ncosts) to ensure that the parties to a proceeding can adequately, and\nin an appropriate manner, inspect documents mentioned in the\ndictionary, part 2, section 8, definition of document, paragraph (b) or\n(c).\n\n(2) The power of an entity to make rules of court extends to making rules,\nnot inconsistent with this Act, prescribing matters—\n(a) required or permitted by this Act to be prescribed; or\n(b) necessary or convenient to be prescribed for carrying out or\ngiving effect to this Act.\nNote A reference to an Act includes a reference to the statutory instruments\nmade or in force under the Act (see Legislation Act, s 104).\n(3) Without limiting subsection (2), rules made under that subsection\nmay provide for the discovery, exchange, inspection or disclosure of\nintended evidence, documents and reports of people intended to be\ncalled by a party to give evidence in a proceeding.\n(4) Without limiting subsection (2), rules made under that subsection\nmay provide for the exclusion of evidence, or for its admission on\nstated conditions, if the rules are not complied with.\n","sortOrder":218},{"sectionNumber":"194","sectionType":"section","heading":"Witnesses failing to attend proceedings","content":"194 Witnesses failing to attend proceedings\nNote 1 The NSW Act includes a provision about the consequences of a witness\nfailing to appear when called in a civil or criminal proceeding.\nNote 2 The Commonwealth Act does not include an equivalent provision to\ns 194. There are provisions to the same effect in federal court rules and\nACT legislation applying to proceedings before federal courts and ACT\ncourts.\n","sortOrder":219},{"sectionNumber":"195","sectionType":"section","heading":"Prohibited question not to be published","content":"195 Prohibited question not to be published\nA person commits an offence if—\n(a) the person prints or publishes—\n(i) a question the court has disallowed under section 41\n(Improper questions); or\n(ii) a question the court has disallowed because any answer\nthat is likely to be given to the question would contravene\nthe credibility rule; or\n\n(iii) a question in relation to which the court has refused to give\nleave under part 3.7 (Credibility); and\n(b) the person does not have the court’s express permission to do\nso.\nMaximum penalty: 60 penalty units.\n","sortOrder":220},{"sectionNumber":"196","sectionType":"section","heading":"Proceedings for offences","content":"196 Proceedings for offences\nNote 1 The NSW Act includes a provision about procedures for dealing with\noffences against the NSW Act or regulations.\nNote 2 The Commonwealth Act does not include an equivalent provision.\n","sortOrder":221},{"sectionNumber":"197","sectionType":"section","heading":"Regulation-making power","content":"197 Regulation-making power\nThe Executive may make regulations for this Act.\nNote A regulation must be notified, and presented to the Legislative Assembly,\nunder the Legislation Act.\n\nOaths and affirmations Schedule 1\n","sortOrder":222},{"sectionNumber":"Sch 1","sectionType":"schedule","heading":"Oaths and affirmations","content":"Schedule 1 Oaths and affirmations\n(see s 21 (4) and s 22 (3))\nOaths by witnesses\nname a god recognised by the person’s religion) that the evidence I give will be the\ntruth, the whole truth and nothing but the truth.\nOaths by interpreters\nname a god recognised by the person’s religion) that I will well and truly interpret the\nevidence that will be given and do all other matters and things that are required\nof me in this case to the best of my ability.\nOaths by intermediaries\nname a god recognised by the person’s religion) that I will impartially and faithfully\ninform the court about the witness’s communication needs and communicate\nquestions and answers, make true explanation of all matters and things that are\nrequired of me, and do all other matters and things that are required of me in\nthis case, to the best of my ability.\n\nSchedule 1 Oaths and affirmations\nAffirmations by witnesses\nI solemnly and sincerely declare and affirm that the evidence I give will be the\ntruth, the whole truth and nothing but the truth.\nAffirmations by interpreters\nI solemnly and sincerely declare and affirm that I will well and truly interpret\nthe evidence that will be given and do all other matters and things that are\nrequired of me in this case to the best of my ability.\nAffirmations by intermediaries\nI solemnly and sincerely declare and affirm that I will impartially and faithfully\ninform the court about the witness’s communication needs and communicate\nquestions and answers, make true explanation of all matters and things that are\nrequired of me, and do all other matters and things that are required of me in\nthis case, to the best of my ability.\n\n(see s 3)\nNote 1 The Legislation Act contains definitions and other provisions relevant to\nthis Act.\nNote 2 For example, the Legislation Act, dict, pt 1, defines the following terms:\n• Australian statistician\n• child\n• Corporations Act\n• domestic partner (see s 169 (1))\n• entity\n• exercise (a function)\n• external territory\n• fail\n• foreign country\n• function\n• gazette\n• government printer\n• indictable offence (see s 190)\n• individual\n• Minister (see s 162)\n• office\n• parent\n• police officer\n• territory law.\n\nACT court means the Supreme Court or Magistrates Court, and\nincludes an entity that, in exercising a function under a territory law,\nis required to apply the laws of evidence.\nNote This definition differs from the definition in the Commonwealth Act.\nadmission means a previous representation that is—\n(a) made by a person who is or becomes a party to a proceeding\n(including a defendant in a criminal proceeding); and\n(b) adverse to the person’s interest in the outcome of the\nasserted fact, for part 3.2 (Hearsay)—see section 59.\nassociated defendant, in relation to a defendant in a criminal\nproceeding, means a person against whom a prosecution has been\nstarted, but not yet completed or terminated, for—\n(a) an offence that arose in relation to the same events as those in\nrelation to which the offence for which the defendant is being\nprosecuted arose; or\n(b) an offence that relates to, or is connected with, the offence for\nwhich the defendant is being prosecuted.\nAustralia includes the external territories.\nAustralian court means—\n(a) the High Court; or\n(b) a court exercising federal jurisdiction; or\n(c) a court of a State or Territory; or\n(d) a judge, justice or arbitrator under an Australian law; or\n(e) an entity authorised by an Australian law, or by consent of\nparties, to hear, receive and examine evidence; or\n\n(f) an entity that, in exercising a function under an Australian law,\nis required to apply the laws of evidence.\nAustralian law means a law of the Commonwealth, a State or\nTerritory.\nNote Law—see the dictionary, pt 2.\nAustralian lawyer—see the Legal Profession Act 2006, dictionary.\nAustralian legal practitioner—see the Legal Profession Act 2006,\ndictionary.\nAustralian or overseas proceeding means a proceeding (however\ndescribed) in an Australian court or foreign court.\nAustralian Parliament means the Legislative Assembly, the\nCommonwealth Parliament, a Parliament of a State or a Legislative\nAssembly of another Territory.\nAustralian practising certificate—see the Legal Profession\nAustralian-registered foreign lawyer—see the Legal Profession\nNote The Commonwealth Act and NSW Act include a definition of Australian\nstatistician. In the ACT, that term is defined in the Legislation Act,\nbusiness—see the dictionary, part 2, section 1.\ncase of a party means the facts in issue in relation to which the party\nbears the legal burden of proof.\nchild—see the dictionary, part 2, section 10 (1).\nNote Child is also defined in the Legislation Act, dictionary, pt 1.\ncivil penalty—see the dictionary, part 2, section 3.\ncivil proceeding means a proceeding other than a criminal\n\nclient, for division 3.10.1 (Client legal privilege)—see section 117.\ncoincidence evidence means evidence of a kind mentioned in section\n98 (1) that a party seeks to present for the purpose mentioned in that\nsubsection.\ncoincidence rule means the rule mentioned in section 98 (1).\nCommonwealth Act means the Evidence Act 1995 (Cwlth).\nNote The Commonwealth Act does not include this definition.\nCommonwealth-owned body corporate means a body corporate that,\nwere the Commonwealth a body corporate, would, for the purposes\nof the Corporations Act, be—\n(a) a wholly-owned subsidiary of the Commonwealth; or\n(b) a wholly-owned subsidiary of another body corporate that is,\nunder this definition, a Commonwealth-owned body corporate\nbecause of the application of paragraph (a) (including the\napplication of that paragraph together with another application\nor other applications of this paragraph).\nCommonwealth record—see the Evidence Act 1995 (Cwlth),\ndictionary.\nconfidant, for division 3.10.1A (Professional confidential\nconfidential communication, for division 3.10.1 (Client legal\nprivilege)—see section 117.\nconfidential document, for division 3.10.1 (Client legal privilege)—\nsee section 117.\ncourt means ACT court.\nNote The Commonwealth Act does not include this definition.\n\ncredibility—\n(a) of a person who has made a representation that has been\nadmitted in evidence—means the credibility of the\nrepresentation, and includes the person’s ability to observe or\nremember facts and events about which the person made the\nrepresentation; and\n(b) of a witness—means the credibility of any part or all of the\nevidence of the witness, and includes the witness’s ability to\nobserve or remember facts and events about which the witness\nhas given, is giving or is to give evidence.\ncredibility evidence—see section 101A.\ncredibility rule means the rule mentioned in section 102.\ncriminal proceeding means a prosecution for an offence and\nincludes—\n(a) a proceeding for the committal of a person for trial or sentence\nfor an offence; and\n(b) a proceeding relating to bail;\nbut does not include a prosecution for an offence that is a prescribed\ntaxation offence within the meaning of the Taxation Administration\nAct 1953 (Cwlth), part 3.\ncross-examination—see the dictionary, part 2, section 2 (2).\ncross-examiner means a party who is cross-examining a witness.\nNote The Commonwealth Act and NSW Act include a definition of de facto\npartner. In the ACT, the term domestic partner is used. That term is\ndefined in the Legislation Act, s 169 (1).\ndocument—see the dictionary, part 2, section 8.\nNote Document is also defined in the Legislation Act, dictionary, pt 1.\ndocument in question, for part 2.2 (Documents)—see section 47.\n\nelectronic communication—see the Electronic Transactions\nAct 2001, dictionary.\nexamination-in-chief—see the dictionary, part 2, section 2 (1).\nNote The Commonwealth Act and NSW Act include a definition of exercise\nof a function. In the ACT, that term is defined in the Legislation Act,\nfax, in relation to a document, means a copy of the document that has\nbeen reproduced by facsimile telegraphy.\nNote The Commonwealth Act includes a definition of federal court.\nforeign court means any court (including any entity authorised to\ntake or receive evidence, whether on behalf of a court or otherwise\nand whether or not the entity is empowered to require the answering\nof questions or the production of documents) of a foreign country or\npart of that country.\nNote The Commonwealth Act and NSW Act include a definition of function.\nIn the ACT, that term is defined in the Legislation Act, dictionary, pt 1.\ngovernment or official gazette includes the gazette.\nNote 1 This definition differs from the Commonwealth Act and NSW Act.\nNote 2 The NSW Act includes definitions of Governor of a State and Governor-\nGeneral. In the ACT, those terms are defined in the Legislation Act,\nharm, for division 3.10.1A (Professional confidential relationship\nprivilege)—see section 126A (1).\nhearsay rule means the rule mentioned in section 59 (1).\nidentification evidence means evidence that is—\n(a) an assertion by a person to the effect that a defendant was, or\nresembles (visually, aurally or otherwise) a person who was,\npresent at or near a place where—\n(i) the offence for which the defendant is being prosecuted\nwas committed; or\n\n(ii) an act connected to the offence was done;\nat or about the time at which the offence was committed or act was\ndone, that is an assertion based completely or partly on what the\nperson making the assertion saw, heard or otherwise perceived at that\nplace and time; or\n(b) a report (whether oral or in writing) of the assertion.\ninformant, for division 3.10.1C (Journalist privilege)—see\nintermediary, in relation to a proceeding, means a person appointed\nas an intermediary for a witness in the proceeding under the Evidence\n(Miscellaneous Provisions) Act 1991 chapter 1B (Witness\nintermediaries—criminal proceedings).\ninvestigating official means—\n(a) a police officer (other than a police officer who is engaged in\ncovert investigations under the orders of a superior); or\n(b) a person appointed by or under an Australian law (other than a\nperson who is engaged in covert investigations under the orders\nof a superior) whose functions include functions in relation to\nthe prevention or investigation of offences.\njoint sitting means—\n(a) in relation to the Commonwealth Parliament—a joint sitting of\nthe members of the Senate and House of Representatives\nconvened by the Governor-General under the Constitution,\nsection 57 or convened under any Commonwealth Act; or\n(b) in relation to a bicameral legislature of a State—a joint sitting of\nboth houses of the legislature convened under a law of the State.\njournalist, for division 3.10.1C (Journalist privilege)—see\n\njudge, in relation to a proceeding, means the judge, magistrate or\nother person before whom the proceeding is being held.\nlaw—see the dictionary, part 2, section 9.\nlawyer, for division 3.10.1 (Client legal privilege)—see section 117.\nleading question means a question asked of a witness that—\n(a) directly or indirectly suggests a particular answer to the\nquestion; or\n(b) assumes the existence of a fact the existence of which is in\ndispute in the proceeding and as to the existence of which the\nwitness has not given evidence before the question is asked.\nlegal counsel means an Australian lawyer employed in or by a\ngovernment agency or other body who by law is exempted from\nholding an Australian practising certificate, or who does not require\nan Australian practising certificate, to engage in legal practice in the\ncourse of that employment.\n1 in-house counsel\n2 government solicitor\nLegislative Assembly, of another Territory, includes any present or\nformer Legislative Assembly of that Territory.\nNote Legislative Assembly is also defined in the Legislation Act, dictionary,\npt 1.\nmember of the Australian Federal Police includes a special member\nor staff member of the Australian Federal Police.\nnews medium, for division 3.10.1C (Journalist privilege)—see\nNSW Act means the Evidence Act 1995 (NSW).\nNote The Commonwealth Act and NSW Act do not include this definition.\noffence means an offence against or arising under an Australian law.\n\nopinion rule means the rule mentioned in section 76.\noverseas-registered foreign lawyer—see the Legal Profession\nparent—see the dictionary, part 2, section 10 (2).\nparty, for division 3.10.1 (Client legal privilege)—see section 117.\npolice officer includes a member of the police force of a State or\nanother Territory.\nNote Police officer is also defined in the Legislation Act, dictionary, pt 1.\npostal article—see the Australian Postal Corporation Act 1989\n(Cwlth), section 3.\nprevious representation—\n(a) for this Act generally—means a representation made otherwise\nthan in the course of giving evidence in the proceeding in which\nevidence of the representation is sought to be presented; and\n(b) for division 3.2.2 (First-hand hearsay) (other than\nsection 62 (2))—see section 62.\nprior consistent statement of a witness means a previous\nrepresentation that is consistent with evidence given by the witness.\nprior inconsistent statement of a witness means a previous\nrepresentation that is inconsistent with evidence given by the witness.\nprobative value of evidence means the extent to which the evidence\ncould rationally affect the assessment of the probability of the\nexistence of a fact in issue.\nprosecutor means a person who starts, or is responsible for the\nconduct of, a prosecution.\nprotected confidence, for division 3.10.1A (Professional confidential\n\nprotected confider, for division 3.10.1A (Professional confidential\nprotected identity information, for division 3.10.1A (Professional\nconfidential relationship privilege)—see section 126A (1).\npublic document means a document that—\n(a) forms part of the records of the Commonwealth, a State or a\nTerritory; or\n(b) forms part of the records of the government of a foreign country;\nor\n(c) forms part of the records of an entity holding office or exercising\na function under or because of the Constitution, an Australian\n(d) is being kept by or on behalf of an entity mentioned in paragraph\n(a), (b) or (c);\nand includes the records of the proceedings of, and papers presented\nto—\n(e) an Australian Parliament, a house of an Australian Parliament, a\ncommittee of an Australian Parliament or of a house of an\nAustralian Parliament; and\n(f) a legislature of a foreign country, including a house or\ncommittee (however described) of that legislature.\nre-examination—see the dictionary, part 2, section 2 (3) and (4).\nrepresentation includes—\n(a) an express or implied representation (whether oral or in writing);\nor\n(b) a representation to be inferred from conduct; or\n(c) a representation not intended by its maker to be communicated\nto or seen by someone else; or\n\n(d) a representation that for any reason is not communicated.\nrequest, for division 4.6.1 (Requests to produce documents or call\nwitnesses)—see section 166.\nseal includes a stamp.\ntendency evidence means evidence of a kind mentioned in\nsection 97 (1) that a party seeks to present for the purpose mentioned\nin that subsection.\ntendency rule means the rule mentioned in section 97 (1).\ntraditional laws and customs of an Aboriginal or Torres Strait\nIslander group (including a kinship group) includes any of the\ntraditions, customary laws, customs, observances, practices,\nknowledge and beliefs of the group.\nwitness—see the dictionary, part 2, section 7.\n\n1 References to business\n(1) For this Act, a business includes the following:\n(a) a profession, calling, occupation, trade or undertaking;\n(b) an activity engaged in or carried on by the Commonwealth,\na State or a Territory;\n(c) an activity engaged in or carried on by the government of a\nforeign country;\n(d) for an entity holding office or exercising power under or because\nof the Constitution, an Australian law or a law of a foreign\ncountry—an activity engaged in or carried on by the entity in the\nexercise of the functions of the office or the exercise of the\npower (otherwise than in a private capacity);\n(e) the proceedings of an Australian Parliament, a house of an\nAustralian Parliament, a committee of an Australian Parliament\nor of a house of an Australian Parliament;\n(f) the proceedings of a legislature of a foreign country, including a\nhouse or committee (however described) of the legislature.\n(2) For this Act, a business also includes the following:\n(a) a business that is not engaged in or carried on for profit;\n(b) a business engaged in or carried on outside Australia.\n2 References to examination-in-chief, cross-examination\nand re-examination\n(1) For this Act, a reference to examination-in-chief of a witness is a\nreference to the questioning of a witness by the party who called the\nwitness to give evidence, other than questioning that is\nre-examination.\n\n(2) For this Act, a reference to cross-examination of a witness is a\nreference to the questioning of a witness by a party other than the\nparty who called the witness to give evidence.\n(3) For this Act, a reference to re-examination of a witness is a reference\nto the questioning of a witness by the party who called the witness to\ngive evidence, that is questioning (other than further examination-in-\nchief with the leave of the court) conducted after the\ncross-examination of the witness by another party.\n(4) For this Act, if a party has recalled a witness who has already given\nevidence, a reference to re-examination of a witness does not include\na reference to the questioning of the witness by that party before the\nwitness is questioned by another party.\n3 References to civil penalties\nFor this Act, a person is taken to be liable to a civil penalty if, in an\nAustralian or overseas proceeding (other than a criminal proceeding),\nthe person would be liable to a penalty arising under an Australian\nlaw or a law of a foreign country.\n4 Unavailability of people\n(1) For this Act, a person is taken not to be available to give evidence\nabout a fact if—\n(a) the person is dead; or\n(b) the person is, for any reason other than the application of\nsection 16 (Competence and compellability—judges and\njurors), not competent to give the evidence; or\n(c) the person is mentally or physically unable to give the evidence\nand it is not reasonably practicable to overcome that inability; or\n(d) it would be unlawful for the person to give the evidence; or\n(e) a provision of this Act prohibits the evidence being given; or\n\n(f) all reasonable steps have been taken, by the party seeking to\nprove the person is not available, to find the person or to secure\nthe person’s attendance, but without success; or\n(g) all reasonable steps have been taken, by the party seeking to\nprove the person is not available, to compel the person to give\nthe evidence, but without success.\n(2) In all other cases the person is taken to be available to give evidence\nabout the fact.\n5 Unavailability of documents and things\nFor this Act, a document or thing is taken not to be available to a party\nif and only if—\n(a) it cannot be found after reasonable inquiry and search by the\nparty; or\n(b) it was destroyed by the party, or by a person on behalf of the\nparty, otherwise than in bad faith, or was destroyed by someone\nelse; or\n(c) it would be impractical to produce the document or thing in the\n(d) production of the document or thing in the proceeding could\nrender a person liable to conviction for an offence; or\n(e) it is not in the possession or under the control of the party and—\n(i) it cannot be obtained by any judicial procedure of the court;\nor\n(ii) it is in the possession or under the control of another party\nto the proceeding who knows or might reasonably be\nexpected to know that evidence of the contents of the\ndocument, or evidence of the thing, is likely to be relevant\nin the proceeding; or\n\n(iii) it was in the possession or under the control of that other\nparty at a time when that party knew or might reasonably\nbe expected to have known that the evidence was likely to\nbe relevant in the proceeding.\n6 Representations in documents\nFor this Act, a representation contained in a document is taken to have\nbeen made by a person if—\n(a) the document was written, made or otherwise produced by the\nperson; or\n(b) the representation was recognised by the person as the person’s\nrepresentation by signing, initialling or otherwise marking the\ndocument.\n7 Witnesses\n(1) For this Act, a reference to a witness includes a reference to a party\ngiving evidence.\n(2) For this Act, a reference to a witness who has been called by a party\nto give evidence includes a reference to the party giving evidence.\n(3) For this section, a reference to a party includes a defendant in a\ncriminal proceeding.\n8 References to documents\nFor this Act, a reference to a document includes a reference to the\n(a) any part of the document;\n(b) any copy, reproduction or duplicate of the document or of any\npart of the document;\n(c) any part of the copy, reproduction or duplicate.\n\n8A References to offices etc\nFor this Act—\n(a) a reference to a person appointed or holding office under or\nbecause of an Australian law includes a reference to an APS\nemployee within the meaning of the Public Service Act 1999\n(Cwlth); and\n(b) in that context, a reference to an office is a reference to the\nposition occupied by the APS employee and a reference to an\nofficer includes a reference to a Secretary, or APS employee,\nwithin the meaning of that Act.\n9 References to laws\n(1) For this Act, a reference to a law of the Commonwealth, a State,\na Territory or a foreign country is a reference to a law (whether\nwritten or unwritten) of or in force in that place.\n(2) For this Act, a reference to an Australian law is a reference to an\nAustralian law (whether written or unwritten) of or in force in\nAustralia.\n10 References to children and parents\n(1) For this Act, a child of a person includes the following:\n(a) an adopted child of the person;\n(b) a child of the person born outside the person’s domestic\npartnership;\n(c) a child living with the person as if the child were a member of\nthe person’s family.\n(2) For this Act, a parent of a person includes the following:\n(a) if the person is adopted—an adoptive parent of the person;\n\n(b) if the person is a child mentioned in subsection (1) (b)—the\nperson’s natural father;\n(c) if the person is a child mentioned in subsection (1) (c)—the\nperson whose family the child is living with.\nNote The Commonwealth Act and NSW Act include a provision about\nreferences to de facto partners.\n\n1 About the endnotes\n1 About the endnotes\nAmending and modifying laws are annotated in the legislation history and the\namendment history. Current modifications are not included in the republished law\nbut are set out in the endnotes.\nNot all editorial amendments made under the Legislation Act 2001, part 11.3 are\nannotated in the amendment history. Full details of any amendments can be\nobtained from the Parliamentary Counsel’s Office.\nUncommenced amending laws are not included in the republished law. The details\nof these laws are underlined in the legislation history. Uncommenced expiries are\nunderlined in the legislation history and amendment history.\nIf all the provisions of the law have been renumbered, a table of renumbered\nprovisions gives details of previous and current numbering.\nThe endnotes also include a table of earlier republications.\n2 Abbreviation key\nA = Act NI = Notifiable instrument\nAF = Approved form o = order\nam = amended om = omitted/repealed\namdt = amendment ord = ordinance\nAR = Assembly resolution orig = original\nch = chapter par = paragraph/subparagraph\nCN = Commencement notice pres = present\ndef = definition prev = previous\nDI = Disallowable instrument (prev...) = previously\ndict = dictionary pt = part\ndisallowed = disallowed by the Legislative r = rule/subrule\nAssembly reloc = relocated\ndiv = division renum = renumbered\nexp = expires/expired R[X] = Republication No\nGaz = gazette RI = reissue\nhdg = heading s = section/subsection\nIA = Interpretation Act 1967 sch = schedule\nins = inserted/added sdiv = subdivision\nLA = Legislation Act 2001 SL = Subordinate law\nLR = legislation register sub = substituted\nLRA = Legislation (Republication) Act 1996 underlining = whole or part not commenced\nmod = modified/modification or to be expired\n\nLegislation history 3\n3 Legislation history\nEvidence Act 2011 A2011-12\nnotified LR 13 April 2011\ns 1, s 2 commenced 13 April 2011 (LA s 75 (1))\nremainder commenced 1 March 2012 (s 2 and CN2012-4)\nas amended by\nEvidence Amendment Act 2011 A2011-47\nnotified LR 22 November 2011\ns 1, s 2 commenced 22 November 2011 (LA s 75 (1))\nremainder commenced 1 March 2012 (s 2 and see Evidence Act 2011\nA2011-12, s 2 and CN2012-4)\nEvidence (Consequential Amendments) Act 2011 A2011-48 sch 1\npt 1.18\nnotified LR 22 November 2011\ns 1, s 2 commenced 22 November 2011 (LA s 75 (1))\nsch 1 pt 1.18 commenced 1 March 2012 (s 2 (1) and see Evidence Act\n","sortOrder":223},{"sectionNumber":"2011","sectionType":"section","heading":"A2011-12, s 2 and CN2012-4)","content":"2011 A2011-12, s 2 and CN2012-4)\nMarriage Equality (Same Sex) Act 2013 A2013-39 sch 2 pt 2.13\nnotified LR 4 November 2013\ns 1, s 2 commenced 4 November 2013 (LA s 75 (1))\nsch 2 pt 2.13 commenced 7 November 2013 (s 2 and CN2013-11)\nNote The High Court held this Act to be of no effect (see\nCommonwealth v Australian Capital Territory [2013] HCA 55)\nStatute Law Amendment Act 2013 (No 2) A2013-44 sch 3 pt 3.7\nnotified LR 11 November 2013\ns 1, s 2 commenced 11 November 2013 (LA s 75 (1))\nsch 3 pt 3.7 commenced 25 November 2013 (s 2)\nCrimes (Domestic and Family Violence) Legislation Amendment\nAct 2015 A2015-40 sch 1 pt 1.8\nnotified LR 4 November 2015\ns 1, s 2 commenced 4 November 2015 (LA s 75 (1))\nsch 1 pt 1.8 commenced 4 May 2016 (s 2 (2))\n\n3 Legislation history\nFamily Violence Act 2016 A2016-42 sch 3 pt 3.13 (as am by A2017-10\ns 7)\nnotified LR 18 August 2016\ns 1, s 2 commenced 18 August 2016 (LA s 75 (1))\nsch 3 pt 3.13 commenced 1 May 2017 (s 2 (2) as am by A2017-10 s 7)\nFamily and Personal Violence Legislation Amendment Act 2017\nA2017-10 s 7\nnotified LR 6 April 2017\ns 1, s 2 commenced 6 April 2017 (LA s 75 (1))\ns 7 commenced 30 April 2017 (s 2 (1))\nNote This Act only amends the Family Violence Act 2016\nA2016-42.\nJustice and Community Safety Legislation Amendment Act 2017\n(No 2) A2017-14 pt 6\nnotified LR 17 May 2017\ns 1, s 2 commenced 17 May 2017 (LA s 75 (1))\npt 6 commenced 24 May 2017 (s 2 (1))\nCourts and Other Justice Legislation Amendment Act 2018 A2018-9\npt 8\nnotified LR 29 March 2018\ns 1, s 2 commenced 29 March 2018 (LA s 75 (1))\npt 8 commenced 26 April 2018 (s 2)\nRoyal Commission Criminal Justice Legislation Amendment Act 2018\nA2018-46 sch 1 pt 1.4\nnotified LR 4 December 2018\ns 1, s 2 commenced 4 December 2018 (LA s 75 (1))\nsch 1 pt 1.4 commenced 5 December 2018 (s 2)\nJustice and Community Safety Legislation Amendment Act 2019\nA2019-17 sch 1 pt 1.3\nnotified LR 14 June 2019\ns 1, s 2 commenced 14 June 2019 (LA s 75 (1))\nsch 1 pt 1.3 commenced 21 June 2019 (s 2)\n\nLegislation history 3\nEvidence (Miscellaneous Provisions) Amendment Act 2019 A2019-41\nsch 1 pt 1.2\nnotified LR 31 October 2019\ns 1, s 2 commenced 31 October 2019 (LA s 75 (1))\nsch 1 pt 1.2 commenced 9 March 2020 (s 2 and CN2020-4)\nRoyal Commission Criminal Justice Legislation Amendment Act 2020\nA2020-31 pt 3\nnotified LR 29 July 2020\ns 1, s 2 commenced 29 July 2020 (LA s 75 (1))\npt 3 commenced 1 September 2020 (s 2 and CN2020-17)\nFamily Violence Legislation Amendment Act 2022 A2022-13\nsch 1 pt 1.3\nnotified LR 10 August 2022\ns 1, s 2 commenced 10 August 2022 (LA s 75 (1))\nsch 1 pt 1.3 commenced 17 August 2022 (s 2)\nCrimes Legislation Amendment Act 2024 A2024-12 pt 7\nnotified LR 19 April 2024\ns 1, s 2 commenced 19 April 2024 (LA s 75 (1))\npt 7 commenced 26 April 2024 (s 2 (1))\n\nCommencement\ns 2 om LA s 89 (4)\nOperation of other Acts\ns 8 am A2011-48 amdt 1.25, amdt 1.26; A2015-40 amdt 1.13\nCompellability of domestic partners and others in certain criminal\ns 19 am A2016-42 amdt 3.60\nInterpreters and intermediaries to act on oath or affirmation\ns 22 hdg sub A2019-41 amdt 1.18\ns 22 am A2019-41 amdts 1.19-1.22\nChoice of oath or affirmation\ns 23 am A2019-41amdt 1.23, amdt 1.24\nDeaf and mute witnesses\ns 31 am A2019-41amdt 1.25\nException—reputation as to relationships and age\ns 73 am A2013-39 amdt 2.29 (A2013-39 never effective (see\nCommonwealth v Australian Capital Territory [2013]\nHCA 55)); A2019-17 amdt 1.3\nApplication—pt 3.6\ns 94 am A2020-31 s 12\nAdmissibility of tendency evidence in proceedings involving child sexual\noffences\ns 97A ins A2020-31 s 13\nThe coincidence rule\ns 98 am A2020-31 s 14\nFurther restrictions on tendency evidence and coincidence evidence\npresented by prosecution\ns 101 am A2020-31 s 15\nProfessional confidential relationship privilege\ndiv 3.10.1A hdg ins A2011-47 s 4\nDefinitions—div 3.10.1A\ns 126A ins A2011-47 s 4\ndef confidant ins A2011-47 s 4\ndef harm ins A2011-47 s 4\ndef protected confidence ins A2011-47 s 4\ndef protected confider ins A2011-47 s 4\ndef protected identity information ins A2011-47 s 4\n\nAmendment history 4\nExclusion of evidence of protected confidences\ns 126B ins A2011-47 s 4\nLoss of professional confidential relationship privilege—consent\ns 126C ins A2011-47 s 4\nLoss of professional confidential relationship privilege—misconduct\ns 126D ins A2011-47 s 4\nAncillary orders\ns 126E ins A2011-47 s 4\nApplication—div 3.10.1A\ns 126F ins A2011-47 s 4\nam A2015-40 amdt 1.14; A2018-46 amdt 1.4; A2022-13\namdt 1.3\nJournalist privilege\ndiv 3.10.1C hdg ins A2011-47 s 4\nDefinitions—div 3.10.1C\ns 126J ins A2011-47 s 4\ndef informant ins A2011-47 s 4\ndef journalist ins A2011-47 s 4\ndef news medium ins A2011-47 s 4\nJournalist privilege relating to informant’s identity\ns 126K ins A2011-47 s 4\nApplication—div 3.10.1C\ns 126L ins A2011-47 s 4\nReligious confessions\ns 127 am A2020-31 s 16\nPrivilege in relation to self-incrimination in other proceedings\ns 128 am A2011-47 ss 5-7; A2017-14 s 18\nPrivilege in relation to self-incrimination—exception for certain orders etc\ns 128A am A2011-47 s 8\nExclusion of evidence of reasons for judicial etc decisions\ns 129 am A2024-12 s 12\nApplication of div 3.10.4 to preliminary proceedings of courts\ns 131A am A2011-47 s 9, s 10\nOfficial statistics\ns 159 am A2013-44 amdt 3.64\nPostal articles\ns 160 am A2018-9 s 40\n\nOaths and affirmations\nsch 1 am A2019-41 amdt 1.26, amdt 1.27\ndict am A2011-48 amdt 1.27\ndict pt 1 def confidant ins A2011-47 s 11\ndef harm ins A2011-47 s 11\ndef informant ins A2011-47 s 11\ndef intermediary ins A2019-41 amdt 1.28\ndef journalist ins A2011-47 s 11\ndef news medium ins A2011-47 s 11\ndef previous representation sub A2013-44 amdt 3.65\ndef protected confidence ins A2011-47 s 11\ndef protected confider ins A2011-47 s 11\ndef protected identity information ins A2011-47 s 11\ndef request ins A2013-44 amdt 3.66\ndict pt 2 s 4 am A2011-47 s 12\n\nEarlier republications 5\n5 Earlier republications\nSome earlier republications were not numbered. The number in column 1 refers to\nthe publication order.\nSince 12 September 2001 every authorised republication has been published in\nelectronic pdf format on the ACT legislation register. A selection of authorised\nrepublications have also been published in printed format. These republications are\nmarked with an asterisk (*) in column 1. Electronic and printed versions of an\nauthorised republication are identical.\nNo and date\nEffective Last\namendment\nmade by\nfor\nR1*\n1 Mar 2012\n1 Mar 2012–\n6 Nov 2013\nA2011-48 new Act and\namendments by\nA2011-47 and\nA2011-48\n7 Nov 2013\nnever effective A2013-39 (never\neffective)\namendments by\nA2013-39\nR2 (RI)\n24 Feb 2014\n7 Nov 2013–\n24 Nov 2013\nA2013-39 (never\neffective)\nreissue because of\nHigh Court\ndecision in relation\nto A2013-39\n25 Nov 2013\nnever effective A2013-44 amendments by\nA2013-44\nR3 (RI)\n24 Feb 2014\n25 Nov 2013–\nA2013-44 reissue because of\nHigh Court\ndecision in relation\nto A2013-39\n4 May 2016–\n30 Apr 2017\nA2015-40 amendments by\nA2015-40\n1 May 2017–\nA2016-42 amendments by\nA2016-42 as am by\nA2017-10\n24 May 2017–\n25 Apr 2018\nA2017-14 amendments by\nA2017-14\n26 Apr 2018\n26 Apr 2018–\n4 Dec 2018\nA2018-9 amendments by\nA2018-9\n\n5 Earlier republications\nNo and date\nEffective Last\namendment\nmade by\nfor\n5 Dec 2018\n5 Dec 2018–\nA2018-46 amendments by\nA2018-46\n21 June 2019–\n8 Mar 2020\nA2019-17 amendments by\nA2019-17\n9 Mar 2020\n9 Mar 2020–\n31 Aug 2020\nA2019-41 amendments by\nA2019-41\n1 Sept 2020\n1 Sept 2020–\n16 Aug 2022\nA2020-31 amendments by\nA2020-31\n17 Aug 2022\n17 August 2022–\n25 Apr 2024\nA2022-13 amendments by\nA2022-13","sortOrder":224}],"analysis":{"kimi_summary":{"_metrics":{"completionTokens":1011},"content_quality":"ok","complexity_score":8,"scope_assessment":{"changed":false,"description":"The legislation remains focused on its original purpose as a comprehensive evidence code for ACT courts. While it has been amended multiple times since 2011 (as shown in the detailed amendment history), these changes have generally refined and expanded specific areas rather than fundamentally altering scope. Notable additions include professional confidential relationship privilege (2011), journalist privilege (2011), and enhanced provisions for tendency evidence in child sexual offence cases (2020), but these represent evolution within the established framework rather than scope creep."},"complexity_factors":["197 sections across 5 chapters with extensive cross-referencing between provisions","47 defined terms in the dictionary plus additional defined terms within sections","Multiple overlapping exclusionary rules (hearsay, opinion, tendency, coincidence, credibility) each with numerous exceptions and exceptions to exceptions","Complex conditional logic for admissibility—e.g., s 97A creates a presumption for tendency evidence in child sexual offence cases that can be rebutted only on 'sufficient grounds', with 7 specific matters that cannot be considered unless 'exceptional circumstances' exist","Nested privilege provisions with multiple loss-of-privilege exceptions (ss 121-126 for client legal privilege, ss 126A-126F for professional confidential relationship privilege, ss 126J-126L for journalist privilege)","Extensive notice requirements for hearsay (s 67), tendency (s 97), and coincidence (s 98) evidence with court discretion to dispense (s 100)","Detailed procedural rules for documentary evidence including presumptions about machines, business records, and electronic communications (ss 146-163)","Specific ACT modifications from uniform Commonwealth/NSW legislation noted throughout, creating potential inconsistency traps"],"plain_english_summary":"**What this Act does:**\n\nThis is the ACT's main law about what evidence can be used in court and how it must be presented. It applies to all proceedings in ACT courts, including criminal trials, civil cases, bail hearings, and sentencing matters (when the court directs).\n\n**Key areas covered:**\n\n- **Who can give evidence:** Almost everyone is competent to testify, but there are exceptions (e.g., young children who can't understand the duty to tell the truth, people with certain disabilities, the Sovereign, judges sitting on the case, and defendants can't be forced to testify against themselves in criminal cases). Family members can object to testifying against defendants if it would cause harm to the relationship.\n\n- **How evidence is given:** Witnesses must take an oath or affirmation. The court controls questioning—no misleading, harassing, or stereotype-based questions allowed. There are rules about cross-examination and when witnesses can be recalled.\n\n- **Documents and other evidence:** The Act sets out how to prove what's in documents without needing the original, and allows for demonstrations, experiments, and site inspections.\n\n- **What evidence is admissible:**\n  - **Relevance:** Only evidence that could rationally affect the facts in issue is allowed.\n  - **Hearsay:** Generally excluded (second-hand \"he said, she said\"), but with many exceptions—business records, electronic communications, statements made when events were fresh in memory, and Aboriginal traditional laws.\n  - **Opinion:** Generally excluded, but experts with specialised knowledge can give opinions.\n  - **Tendency and coincidence:** Evidence of past behaviour or patterns is restricted but allowed in child sexual offence cases with a presumption of significance.\n  - **Credibility:** Restrictions on attacking or supporting witness credibility.\n\n- **Privileges:** Protects confidential communications between lawyers and clients, professional confidential relationships, journalists and sources, religious confessions (with exceptions for child abuse), and protects people from self-incrimination.\n\n- **Discretionary exclusions:** Courts can exclude evidence that is unfairly prejudicial, misleading, or obtained improperly or illegally.\n\n- **Proof and warnings:** Sets standards of proof (balance of probabilities for civil, beyond reasonable doubt for criminal), abolishes corroboration requirements, and requires judges to warn juries about unreliable evidence like identification evidence, child witnesses, and delayed prosecutions.\n\n**Who it affects:** Anyone involved in ACT court proceedings—parties, witnesses, lawyers, judges, and jurors. It also affects journalists, professionals with confidential relationships, and anyone whose communications might become evidence.\n\n**Why it matters:** This Act ensures fairness and reliability in court proceedings by setting clear rules about what information can be considered and how it must be obtained and presented. It balances the need to get at the truth with protections for individual rights, confidential relationships, and fair process."},"flash_summary":{"complexity_score":9,"scope_assessment":{"changed":true,"description":"The Act has grown significantly beyond its original uniform evidence model. Amendments have added entirely new divisions, such as professional confidential relationship privilege (Division 3.10.1A), journalist privilege (Division 3.10.1C), and special rules for tendency evidence in child sexual offence proceedings (section 97A). These additions expand the scope of privilege and admissibility beyond the original uniform framework, reflecting legislative responses to specific policy concerns."},"complexity_factors":["Over 190 sections with multiple divisions and schedules","Extensive defined terms in a 20-page dictionary","Numerous cross-references between sections (e.g., sections referring to definitions in other Acts)","Complex conditional logic with exceptions to exceptions (e.g., hearsay rule with multiple layers of exceptions)","Detailed rules for trial procedures (e.g., questioning of witnesses, voir dire)","Specialised provisions (e.g., child sexual offence tendency evidence, professional confidential relationship privilege, journalist privilege)","Frequent use of notes and examples that are not part of the Act but add complexity","Differences from Commonwealth and NSW Acts requiring careful comparison"],"plain_english_summary":"The Evidence Act 2011 is the main law governing how evidence is used in ACT courts. It sets out who can give evidence (witnesses), how evidence is presented (e.g., documents, opinions, views), and what types of evidence are allowed or excluded. The law applies to both criminal and civil proceedings. Key rules include: evidence must be relevant to be admitted; hearsay (second-hand statements) is generally not allowed unless an exception applies; opinion evidence is limited; admissions by a party can be used as evidence; there are special rules for evidence about a person's character, tendency, or coincidence; and certain privileges protect communications (e.g., between lawyer and client, religious confessions, journalist sources). The court also has power to exclude evidence if it is unfairly prejudicial or obtained improperly. The Act replaces previous common law rules and is largely uniform with similar laws in the Commonwealth and New South Wales."}},"importantCases":[],"_links":{"self":"/api/acts/evidence-act-2011","history":"/api/acts/evidence-act-2011/history","analysis":"/api/acts/evidence-act-2011/analysis","conflicts":"/api/acts/evidence-act-2011/conflicts","importantCases":"/api/acts/evidence-act-2011/important-cases","documents":"/api/acts/evidence-act-2011/documents"}}