{"id":"qld:act-1867-013","name":"Evidence and Discovery Act 1867","slug":"evidence-and-discovery-act-1867","collection":"act","jurisdiction":"qld","status":"in_force","isInForce":true,"actNumber":"13 of 1867","makingDate":null,"administeringDepartment":null,"currentVersion":{"id":105844,"registerId":"qld-act-1867-013-current","compilationNumber":null,"startDate":"2026-04-03","status":"InForce","reasons":null,"registeredAt":null},"sections":[{"sectionNumber":"pt.1","sectionType":"part","heading":"Judgments decrees and orders","content":"# Judgments decrees and orders","sortOrder":0},{"sectionNumber":"sec.1","sectionType":"section","heading":null,"content":"### Section sec.1\n\ns 1 om 1977 No. 47 s 3 (2) sch 1 pt B","sortOrder":1},{"sectionNumber":"sec.2","sectionType":"section","heading":null,"content":"### Section sec.2\n\ns 2 om 1977 No. 47 s 3 (2) sch 1 pt B","sortOrder":2},{"sectionNumber":"sec.3","sectionType":"section","heading":null,"content":"### Section sec.3\n\ns 3 amd 1903 3 Edw 7 No. 10 s 10 sch 3\nom 1977 No. 47 s 3 (2) sch 1 pt B\nhdg prec s 4 impliedly om 1977 No. 47 s 3 (2) sch 1 pt B","sortOrder":3},{"sectionNumber":"sec.4","sectionType":"section","heading":null,"content":"### Section sec.4\n\ns 4 amd 1903 3 Edw 7 No. 10 s 10sch 3\nom 1977 No. 47 s 3 (2) sch 1 pt B","sortOrder":4},{"sectionNumber":"sec.5","sectionType":"section","heading":null,"content":"### Section sec.5\n\ns 5 om 1977 No. 47 s 3 (2) sch 1 pt B","sortOrder":5},{"sectionNumber":"sec.6","sectionType":"section","heading":null,"content":"### Section sec.6\n\ns 6 om 1874 37 Vic No. 9 s 1\nhdg prec s 7 impliedly om 1977 No. 47 s 3 (2) sch 1 pt B","sortOrder":6},{"sectionNumber":"sec.7","sectionType":"section","heading":null,"content":"### Section sec.7\n\ns 7 amd 1892 56 Vic No. 3 s 2\nom 1977 No. 47 s 3 (2) sch 1 pt B\nhdg prec s 8 impliedly om 1977 No. 47 s 3 (2) sch 1 pt B","sortOrder":7},{"sectionNumber":"sec.8","sectionType":"section","heading":null,"content":"### Section sec.8\n\ns 8 amd 1874 37 Vic No. 9 s 1\nom 1892 56 Vic No. 3 s 2","sortOrder":8},{"sectionNumber":"sec.9","sectionType":"section","heading":null,"content":"### Section sec.9\n\ns 9 amd 1927 18 Geo 5 No. 18 s 2\nom 1977 No. 47 s 3 (2) sch 1 pt B","sortOrder":9},{"sectionNumber":"sec.10","sectionType":"section","heading":null,"content":"### Section sec.10\n\ns 10 om 1977 No. 47 s 3 (2) sch 1 pt B\nhdg prec s 11 impliedly om 1977 No. 47 s 3 (2) sch 1 pt B","sortOrder":10},{"sectionNumber":"sec.11","sectionType":"section","heading":null,"content":"### Section sec.11\n\ns 11 om 1977 No. 47 s 3 (2) sch 1 pt B","sortOrder":11},{"sectionNumber":"sec.12","sectionType":"section","heading":null,"content":"### Section sec.12\n\ns 12 om 1977 No. 47 s 3 (2) sch 1 pt B","sortOrder":12},{"sectionNumber":"sec.13","sectionType":"section","heading":null,"content":"### Section sec.13\n\ns 13 om 1977 No. 47 s 3 (2) sch 1 pt B","sortOrder":13},{"sectionNumber":"sec.14","sectionType":"section","heading":null,"content":"### Section sec.14\n\ns 14 om 1977 No. 47 s 3 (2) sch 1 pt B\nhdg prec s 15 impliedly om 1977 No. 47 s 3 (2) sch 1 pt B","sortOrder":14},{"sectionNumber":"sec.15","sectionType":"section","heading":null,"content":"### Section sec.15\n\ns 15 om 1977 No. 47 s 3 (2) sch 1 pt B\nhdg prec s 16 impliedly om 1977 No. 47 s 3 (2) sch 1 pt B","sortOrder":15},{"sectionNumber":"sec.16","sectionType":"section","heading":null,"content":"### Section sec.16\n\ns 16 amd 1903 3 Edw 7 No. 10 s 10 sch 3\nom 1977 No. 47 s 3 (2) sch 1 pt B\nhdg prec s 17 impliedly om 1977 No. 47 s 3 (2) sch 1 pt B","sortOrder":16},{"sectionNumber":"sec.17","sectionType":"section","heading":null,"content":"### Section sec.17\n\ns 17 om 1977 No. 47 s 3 (2) sch 1 pt B","sortOrder":17},{"sectionNumber":"sec.18","sectionType":"section","heading":null,"content":"### Section sec.18\n\ns 18 om 1977 No. 47 s 3 (2) sch 1 pt B","sortOrder":18},{"sectionNumber":"sec.19","sectionType":"section","heading":null,"content":"### Section sec.19\n\ns 19 om 1977 No. 47 s 3 (2) sch 1 pt B","sortOrder":19},{"sectionNumber":"sec.20","sectionType":"section","heading":null,"content":"### Section sec.20\n\ns 20 om 1977 No. 47 s 3 (2) sch 1 pt B\nhdg prec s 21 impliedly om 1977 No. 47 s 3 (2) sch 1 pt B","sortOrder":20},{"sectionNumber":"sec.21","sectionType":"section","heading":null,"content":"### Section sec.21\n\ns 21 amd 1903 3 Edw 7 No. 10 s 10sch 3\nom 1977 No. 47 s 3 (2) sch 1 pt B","sortOrder":21},{"sectionNumber":"sec.22","sectionType":"section","heading":null,"content":"### Section sec.22\n\ns 22 om 1977 No. 47 s 3 (2) sch 1 pt B","sortOrder":22},{"sectionNumber":"sec.23","sectionType":"section","heading":null,"content":"### Section sec.23\n\ns 23 om 1977 No. 47 s 3 (2) sch 1 pt B\nhdg prec s 24 impliedly om 1977 No. 47 s 3 (2) sch 1 pt B","sortOrder":23},{"sectionNumber":"sec.24","sectionType":"section","heading":null,"content":"### Section sec.24\n\ns 24 amd 1903 3 Edw 7 No. 10 s 10sch 3\nom 1977 No. 47 s 3 (2) sch 1 pt B\nhdg prec s 25 impliedly om 1977 No. 47 s 3 (2) sch 1 pt B","sortOrder":24},{"sectionNumber":"sec.25","sectionType":"section","heading":null,"content":"### Section sec.25\n\ns 25 om 1977 No. 47 s 3 (2) sch 1 pt B","sortOrder":25},{"sectionNumber":"sec.25A","sectionType":"section","heading":null,"content":"### Section sec.25A\n\ns 25A ins 1962 No. 9 s 4\nom 1977 No. 47 s 3 (2) sch 1 pt B\nhdg prec s 26 impliedly om 1977 No. 47 s 3 (2) sch 1 pt B","sortOrder":26},{"sectionNumber":"sec.26","sectionType":"section","heading":null,"content":"### Section sec.26\n\ns 26 om 1977 No. 47 s 3 (2) sch 1 pt B\nhdg prec s 27 impliedly om 1977 No. 47 s 3 (2) sch 1 pt B","sortOrder":27},{"sectionNumber":"sec.27","sectionType":"section","heading":null,"content":"### Section sec.27\n\ns 27 om 1977 No. 47 s 3 (2) sch 1 pt B","sortOrder":28},{"sectionNumber":"sec.28","sectionType":"section","heading":null,"content":"### Section sec.28\n\ns 28 om 1977 No. 47 s 3 (2) sch 1 pt B","sortOrder":29},{"sectionNumber":"sec.29","sectionType":"section","heading":null,"content":"### Section sec.29\n\ns 29 om 1977 No. 47 s 3 (2) sch 1 pt B","sortOrder":30},{"sectionNumber":"sec.30","sectionType":"section","heading":null,"content":"### Section sec.30\n\ns 30 om 1977 No. 47 s 3 (2) sch 1 pt B","sortOrder":31},{"sectionNumber":"sec.31","sectionType":"section","heading":"Copies of judgments decrees rules and orders of Supreme Court to be received in evidence if duly certified by master prothonotary chief clerk or deputy registrar respectively","content":"### sec.31 Copies of judgments decrees rules and orders of Supreme Court to be received in evidence if duly certified by master prothonotary chief clerk or deputy registrar respectively\n\nCopies of all judgments decrees rules and orders filed or recorded in the Supreme Court of the said State at Brisbane shall be admitted as evidence of the contents thereof by all courts Judges justices and other legal tribunals and in every judicial proceeding in the said State without production of the originals of such documents respectively provided the copies of such orders and decrees made in the equitable jurisdiction of the said Supreme Court at Brisbane be certified under the hand of the master in equity of the said court and that such copies of all judgments decrees rules and orders made in the common law and ecclesiastical jurisdiction of the said Supreme Court at Brisbane be certified under the hand of the prothonotary or chief clerk thereof.\nAnd they shall be deemed prima facie to be so certified if they purport to be so certified.\nhdg prec s 32 impliedly om 1977 No. 47 s 3 (2) sch 1 pt B\n(sec.31-ssec.1) Copies of all judgments decrees rules and orders filed or recorded in the Supreme Court of the said State at Brisbane shall be admitted as evidence of the contents thereof by all courts Judges justices and other legal tribunals and in every judicial proceeding in the said State without production of the originals of such documents respectively provided the copies of such orders and decrees made in the equitable jurisdiction of the said Supreme Court at Brisbane be certified under the hand of the master in equity of the said court and that such copies of all judgments decrees rules and orders made in the common law and ecclesiastical jurisdiction of the said Supreme Court at Brisbane be certified under the hand of the prothonotary or chief clerk thereof.\n(sec.31-ssec.2) And they shall be deemed prima facie to be so certified if they purport to be so certified.","sortOrder":32},{"sectionNumber":"sec.32","sectionType":"section","heading":null,"content":"### Section sec.32\n\ns 32 om 1977 No. 47 s 3 (2) sch 1 pt B","sortOrder":33},{"sectionNumber":"sec.33","sectionType":"section","heading":null,"content":"### Section sec.33\n\ns 33 om 1977 No. 47 s 3 (2) sch 1 pt B","sortOrder":34},{"sectionNumber":"sec.34","sectionType":"section","heading":null,"content":"### Section sec.34\n\ns 34 om 1977 No. 47 s 3 (2) sch 1 pt B","sortOrder":35},{"sectionNumber":"sec.35","sectionType":"section","heading":null,"content":"### Section sec.35\n\ns 35 om 1977 No. 47 s 3 (2) sch 1 pt B\nhdg prec s 36 impliedly om 1977 No. 47 s 3 (2) sch 1 pt B","sortOrder":36},{"sectionNumber":"sec.36","sectionType":"section","heading":null,"content":"### Section sec.36\n\ns 36 om 1977 No. 47 s 3 (2) sch 1 pt B\nhdg prec s 37 impliedly om 1977 No. 47 s 3 (2) sch 1 pt B","sortOrder":37},{"sectionNumber":"sec.37","sectionType":"section","heading":null,"content":"### Section sec.37\n\ns 37 om 1977 No. 47 s 3 (2) sch 1 pt B","sortOrder":38},{"sectionNumber":"sec.37A","sectionType":"section","heading":"Powers as to oaths and notarial Acts abroad","content":"### sec.37A Powers as to oaths and notarial Acts abroad\n\nIn this section—\nauthorised employee means an employee of—\nthe Commonwealth authorised under section 3 (c) of the Consular Fees Act 1955 (Cwlth) ; or\nthe Australian Trade Commission authorised under section 3 (d) of the Consular Fees Act 1955 (Cwlth) .\nconsular officer means a person appointed to hold or act in any of the following offices (being an office of the United Kingdom of Great Britain and Northern Ireland or of some other country which is a member of the Commonwealth of Nations) in a country or place outside the United Kingdom of Great Britain and Northern Ireland or, as the case may be, such other country, that is to say—\nambassador; or\nhigh commissioner; or\nminister; or\nhead of mission; or\ncommissioner; or\ncharge d’affaires; or\ncounsellor or secretary at an embassy, high commissioner’s office, legation or other post; or\nconsul-general; or\nconsul; or\nvice-consul; or\npro-consul; or\ntrade commissioner; or\nconsular agent.\nWhere any oath, affidavit, or notarial act is required for the purpose of any court or matter in Queensland, any such oath or affidavit, and any such notarial act which, if done in the United Kingdom of Great Britain and Northern Ireland, a notary public could do may, in any country or place outside the Commonwealth of Australia, be made, sworn, or done before a consular officer or authorised employee exercising his or her functions in that country or place.\nEvery such oath, affidavit, or notarial act made, sworn, or done before any such consular officer or authorised employee shall be as effectual as if duly made, sworn, or done before a lawful authority in Queensland.\nAny document required, authorised, or permitted by any Act or law of Queensland to be attested or verified by, or sealed, or signed, or acknowledged or declared before a justice of the peace of this State may, in any country or place outside the Commonwealth of Australia, be attested, or verified by, or sealed, or signed, or acknowledged or declared by or before a consular officer or authorised employee exercising his or her functions in that country or place.\nEvery document attested or verified by, or sealed, or signed, or acknowledged or declared before any such consular officer or authorised employee shall be as effectual as if duly attested, or verified by, or sealed, or sworn, or acknowledged or declared before a justice of the peace in Queensland.\nWhere any enactment in force at the passing of the Evidence and Discovery Acts Amendment Act 1960 or thereafter in force requires, authorises, or permits any notarial act to be done by, or any oath or affidavit to be made or taken or any document to be sealed or signed or acknowledged or declared before, any person appointed to hold or act in any diplomatic or consular office of the United Kingdom of Great Britain and Northern Ireland, whether that person is in that enactment referred to as a British ambassador, envoy, minister, charge d’affaires, secretary of embassy or legation, consul-general, consul, vice-consul, pro-consul, or consular agent, or by any other title, then the same may be done by or, as the case may be, made, or taken, or sealed, or signed, or acknowledged or declared in any country or place outside the Commonwealth of Australia before any consular officer or authorised employee exercising his or her functions in that country or place.\nFor the purposes of this subsection—\nenactment includes a provision of any order in council, regulation, rule, by-law, or other instrument made pursuant to any Act of this State as well as any enactment of the Legislature of this State.\ns 37A ins 1960 9 Eliz 2 No. 22 s 4\namd 2000 No. 58 s 2 sch\n(sec.37A-ssec.1) In this section— authorised employee means an employee of— the Commonwealth authorised under section 3 (c) of the Consular Fees Act 1955 (Cwlth) ; or the Australian Trade Commission authorised under section 3 (d) of the Consular Fees Act 1955 (Cwlth) . consular officer means a person appointed to hold or act in any of the following offices (being an office of the United Kingdom of Great Britain and Northern Ireland or of some other country which is a member of the Commonwealth of Nations) in a country or place outside the United Kingdom of Great Britain and Northern Ireland or, as the case may be, such other country, that is to say— ambassador; or high commissioner; or minister; or head of mission; or commissioner; or charge d’affaires; or counsellor or secretary at an embassy, high commissioner’s office, legation or other post; or consul-general; or consul; or vice-consul; or pro-consul; or trade commissioner; or consular agent.\n(sec.37A-ssec.2) Where any oath, affidavit, or notarial act is required for the purpose of any court or matter in Queensland, any such oath or affidavit, and any such notarial act which, if done in the United Kingdom of Great Britain and Northern Ireland, a notary public could do may, in any country or place outside the Commonwealth of Australia, be made, sworn, or done before a consular officer or authorised employee exercising his or her functions in that country or place.\n(sec.37A-ssec.2A) Every such oath, affidavit, or notarial act made, sworn, or done before any such consular officer or authorised employee shall be as effectual as if duly made, sworn, or done before a lawful authority in Queensland.\n(sec.37A-ssec.3) Any document required, authorised, or permitted by any Act or law of Queensland to be attested or verified by, or sealed, or signed, or acknowledged or declared before a justice of the peace of this State may, in any country or place outside the Commonwealth of Australia, be attested, or verified by, or sealed, or signed, or acknowledged or declared by or before a consular officer or authorised employee exercising his or her functions in that country or place.\n(sec.37A-ssec.3A) Every document attested or verified by, or sealed, or signed, or acknowledged or declared before any such consular officer or authorised employee shall be as effectual as if duly attested, or verified by, or sealed, or sworn, or acknowledged or declared before a justice of the peace in Queensland.\n(sec.37A-ssec.4) Where any enactment in force at the passing of the Evidence and Discovery Acts Amendment Act 1960 or thereafter in force requires, authorises, or permits any notarial act to be done by, or any oath or affidavit to be made or taken or any document to be sealed or signed or acknowledged or declared before, any person appointed to hold or act in any diplomatic or consular office of the United Kingdom of Great Britain and Northern Ireland, whether that person is in that enactment referred to as a British ambassador, envoy, minister, charge d’affaires, secretary of embassy or legation, consul-general, consul, vice-consul, pro-consul, or consular agent, or by any other title, then the same may be done by or, as the case may be, made, or taken, or sealed, or signed, or acknowledged or declared in any country or place outside the Commonwealth of Australia before any consular officer or authorised employee exercising his or her functions in that country or place.\n(sec.37A-ssec.5) For the purposes of this subsection— enactment includes a provision of any order in council, regulation, rule, by-law, or other instrument made pursuant to any Act of this State as well as any enactment of the Legislature of this State.\n- (a) the Commonwealth authorised under section 3 (c) of the Consular Fees Act 1955 (Cwlth) ; or\n- (b) the Australian Trade Commission authorised under section 3 (d) of the Consular Fees Act 1955 (Cwlth) .\n- (a) ambassador; or\n- (b) high commissioner; or\n- (c) minister; or\n- (d) head of mission; or\n- (e) commissioner; or\n- (f) charge d’affaires; or\n- (g) counsellor or secretary at an embassy, high commissioner’s office, legation or other post; or\n- (h) consul-general; or\n- (i) consul; or\n- (j) vice-consul; or\n- (k) pro-consul; or\n- (l) trade commissioner; or\n- (m) consular agent.","sortOrder":39},{"sectionNumber":"sec.38","sectionType":"section","heading":"Certain documents to be evidence without proof of seal or signature of official persons","content":"### sec.38 Certain documents to be evidence without proof of seal or signature of official persons\n\nAny document purporting to have affixed impressed or subscribed thereon or thereto the seal and signature of any British ambassador envoy minister charge d’affaires secretary of embassy or legation consul-general consul vice-consul acting consul pro-consul or consular agent or of any Australian consular officer or an authorised employee within the meaning of the Australian Consular Officers’ Notarial Powers and Evidence Act 1946 or of any other person who is a consular officer or an authorised employee within the meaning of section 37A of this Act, in testimony of any oath affidavit affirmation or notarial act having been administered sworn affirmed had or done by or before him or her shall be deemed prima facie to be so affixed impressed or subscribed and shall accordingly be admitted in evidence without proof of any such seal and signature being the seal and signature of the person whose seal and signature the same purport to be or of the official character of such person.\ns 38 amd 1946 10 Geo 6 No. 43 s 5(i); 1960 9 Eliz 2 No. 22 s 5; 2000 No. 58 s 2 sch","sortOrder":40},{"sectionNumber":"sec.39","sectionType":"section","heading":null,"content":"### Section sec.39\n\ns 39 amd 1903 3 Edw 7 No. 10 s 10 sch 3\nom 1977 No. 47 s 3 (2) sch 1 pt B","sortOrder":41},{"sectionNumber":"sec.40","sectionType":"section","heading":null,"content":"### Section sec.40\n\ns 40 amd 1965 No. 61 s 11 sch 2\nom 1977 No. 47 s 3 (2) sch 1 pt B","sortOrder":42},{"sectionNumber":"sec.41","sectionType":"section","heading":null,"content":"### Section sec.41\n\ns 41 amd 1965 No. 61 s 11 sch 2\nom 1977 No. 47 s 3 (2) sch 1 pt B","sortOrder":43},{"sectionNumber":"sec.41A","sectionType":"section","heading":null,"content":"### Section sec.41A\n\ns 41A ins 1962 No. 9 s 5\nom 1977 No. 47 s 3 (2) sch 1 pt B","sortOrder":44},{"sectionNumber":"sec.42","sectionType":"section","heading":null,"content":"### Section sec.42\n\ns 42 om 1977 No. 47 s 3 (2) sch 1 pt B","sortOrder":45},{"sectionNumber":"sec.42A","sectionType":"section","heading":null,"content":"### Section sec.42A\n\ns 42A ins 1962 No. 9 s 6\nom 1977 No. 47 s 3 (2) sch 1 pt B","sortOrder":46},{"sectionNumber":"sec.42B","sectionType":"section","heading":null,"content":"### Section sec.42B\n\ns 42B ins 1962 No. 9 s 6\nom 1977 No. 47 s 3 (2) sch 1 pt B","sortOrder":47},{"sectionNumber":"sec.42C","sectionType":"section","heading":null,"content":"### Section sec.42C\n\ns 42C ins 1962 No. 9 s 6\nom 1977 No. 47 s 3 (2) sch 1 pt B","sortOrder":48},{"sectionNumber":"pt.2","sectionType":"part","heading":"Speeches or addresses","content":"# Speeches or addresses","sortOrder":49},{"sectionNumber":"sec.43","sectionType":"section","heading":"Speeches to the jury","content":"### sec.43 Speeches to the jury\n\nUpon the trial of any civil cause the addresses to the court or jury shall be regulated as follows—the party who begins or his or her counsel shall be allowed in the event of the party’s opponent not announcing at the close of the case of the party who begins his or her intention to adduce evidence to address the court or jury a second time at the close of such case for the purpose of summing up the evidence.\nAnd the party on the other side or his or her counsel shall be allowed to open the case and also to sum up the evidence (if any).\nAnd the right to reply shall be the same as at present.\n(sec.43-ssec.1) Upon the trial of any civil cause the addresses to the court or jury shall be regulated as follows—the party who begins or his or her counsel shall be allowed in the event of the party’s opponent not announcing at the close of the case of the party who begins his or her intention to adduce evidence to address the court or jury a second time at the close of such case for the purpose of summing up the evidence.\n(sec.43-ssec.2) And the party on the other side or his or her counsel shall be allowed to open the case and also to sum up the evidence (if any).\n(sec.43-ssec.3) And the right to reply shall be the same as at present.","sortOrder":50},{"sectionNumber":"sec.44","sectionType":"section","heading":null,"content":"### Section sec.44\n\ns 44 om 1899 63 Vic No. 9 s 3(2) sch 3\nhdg prec s 45 impliedly om 1977 No. 47 s 3 (2) sch 1 pt B","sortOrder":51},{"sectionNumber":"sec.45","sectionType":"section","heading":null,"content":"### Section sec.45\n\ns 45 om 1977 No. 47 s 3 (2) sch 1 pt B","sortOrder":52},{"sectionNumber":"sec.46","sectionType":"section","heading":null,"content":"### Section sec.46\n\ns 46 amd 1890 54 Vic No. 28 s 3 sch 1\nom 1977 No. 47 s 3 (2) sch 1 pt B","sortOrder":53},{"sectionNumber":"sec.47","sectionType":"section","heading":null,"content":"### Section sec.47\n\ns 47 om 1977 No. 47 s 3 (2) sch 1 pt B","sortOrder":54},{"sectionNumber":"sec.48","sectionType":"section","heading":null,"content":"### Section sec.48\n\ns 48 om 1977 No. 47 s 3 (2) sch 1 pt B","sortOrder":55},{"sectionNumber":"sec.49","sectionType":"section","heading":null,"content":"### Section sec.49\n\ns 49 om 1908 8 Edw 7 No. 18 s 2 sch 1","sortOrder":56},{"sectionNumber":"sec.50","sectionType":"section","heading":null,"content":"### Section sec.50\n\ns 50 om 1977 No. 47 s 3 (2) sch 1 pt B","sortOrder":57},{"sectionNumber":"sec.51","sectionType":"section","heading":null,"content":"### Section sec.51\n\ns 51 om 1977 No. 47 s 3 (2) sch 1 pt B","sortOrder":58},{"sectionNumber":"sec.52","sectionType":"section","heading":null,"content":"### Section sec.52\n\ns 52 om 1977 No. 47 s 3 (2) sch 1 pt B\nhdg prec s 53 impliedly om 1977 No. 47 s 3 (2) sch 1 pt B","sortOrder":59},{"sectionNumber":"sec.53","sectionType":"section","heading":null,"content":"### Section sec.53\n\ns 53 om 1977 No. 47 s 3 (2) sch 1 pt B","sortOrder":60},{"sectionNumber":"sec.54","sectionType":"section","heading":null,"content":"### Section sec.54\n\ns 54 om 1977 No. 47 s 3 (2) sch 1 pt B\nhdg prec s 55 impliedly om 1977 No. 47 s 3 (2) sch 1 pt B","sortOrder":61},{"sectionNumber":"sec.55","sectionType":"section","heading":null,"content":"### Section sec.55\n\ns 55 om 1977 No. 47 s 3 (2) sch 1 pt B\nhdg prec s 56 impliedly om 1977 No. 47 s 3 (2) sch 1 pt B","sortOrder":62},{"sectionNumber":"sec.56","sectionType":"section","heading":null,"content":"### Section sec.56\n\ns 56 om 1977 No. 47 s 3 (2) sch 1 pt B","sortOrder":63},{"sectionNumber":"sec.57","sectionType":"section","heading":null,"content":"### Section sec.57\n\ns 57 om 1977 No. 47 s 3 (2) sch 1 pt B","sortOrder":64},{"sectionNumber":"sec.58","sectionType":"section","heading":null,"content":"### Section sec.58\n\ns 58 om 1977 No. 47 s 3 (2) sch 1 pt B","sortOrder":65},{"sectionNumber":"sec.59","sectionType":"section","heading":null,"content":"### Section sec.59\n\ns 59 om 1977 No. 47 s 3 (2) sch 1 pt B","sortOrder":66},{"sectionNumber":"sec.60","sectionType":"section","heading":null,"content":"### Section sec.60\n\ns 60 om 1977 No. 47 s 3 (2) sch 1 pt B","sortOrder":67},{"sectionNumber":"sec.61","sectionType":"section","heading":"Such examinations may be read without proof","content":"### sec.61 Such examinations may be read without proof\n\nAffidavits and affirmations duly taken under this Act shall and may be received read and made use of in and before any court of law or equity or other judicature whatever in the State and the Judges and officers thereof in or in relation to any action suit cause matter or proceeding in or before any such court or judicature in like manner and shall be of the same force and effect as affidavits and affirmations taken in or before such court or judicature or by any person duly commissioned or authorised by such court or judicature to take such affidavits or affirmations and shall be filed and dealt with accordingly.","sortOrder":68},{"sectionNumber":"sec.62","sectionType":"section","heading":null,"content":"### Section sec.62\n\ns 62 amd 1972 No. 31 s 6 sch 1\nom 1977 No. 47 s 3 (2) sch 1 pt B","sortOrder":69},{"sectionNumber":"sec.62A","sectionType":"section","heading":null,"content":"### Section sec.62A\n\ns 62A ins 1967 No. 53 s 2\nom 1977 No. 47 s 3 (2) sch 1 pt B\nhdg prec s 63 impliedly om 1977 No. 47 s 3 (2) sch 1 pt B","sortOrder":70},{"sectionNumber":"sec.63","sectionType":"section","heading":null,"content":"### Section sec.63\n\ns 63 om 1977 No. 47 s 3 (2) sch 1 pt B","sortOrder":71},{"sectionNumber":"sec.64","sectionType":"section","heading":null,"content":"### Section sec.64\n\ns 64 om 1894 58 Vic No. 23 s 2","sortOrder":72},{"sectionNumber":"sec.65","sectionType":"section","heading":null,"content":"### Section sec.65\n\ns 65 om 1886 50 Vic No. 17 s 2 sch 1","sortOrder":73},{"sectionNumber":"sec.66","sectionType":"section","heading":null,"content":"### Section sec.66\n\ns 66 om 1886 50 Vic No. 17 s 2 sch 1","sortOrder":74},{"sectionNumber":"sec.67","sectionType":"section","heading":"Depositions of prisoners’ witnesses dying before trial—attendance of witnesses for prisoner","content":"### sec.67 Depositions of prisoners’ witnesses dying before trial—attendance of witnesses for prisoner\n\nIn every case where any witness who shall have been called and examined before the justice or justices by and on behalf of a party committed or held to bail shall happen to die before the trial and in cases in which the witness shall be so ill as not to be able to travel and in all cases in which the justices who committed the prisoner or held the prisoner to bail shall have certified before such committal or holding to bail that the evidence of the witness is material and that the prisoner is in their belief willing to attend the trial but will be unable to bear in the expense of attendance the deposition of such witness may be read in evidence to the jury in the prisoner’s defence if the party on trial shall so require.\nHowever, where any witness has in due time before the trial been subpoenaed by the Crown such certificate of such justices shall not render the deposition admissible.\n(sec.67-ssec.1) In every case where any witness who shall have been called and examined before the justice or justices by and on behalf of a party committed or held to bail shall happen to die before the trial and in cases in which the witness shall be so ill as not to be able to travel and in all cases in which the justices who committed the prisoner or held the prisoner to bail shall have certified before such committal or holding to bail that the evidence of the witness is material and that the prisoner is in their belief willing to attend the trial but will be unable to bear in the expense of attendance the deposition of such witness may be read in evidence to the jury in the prisoner’s defence if the party on trial shall so require.\n(sec.67-ssec.2) However, where any witness has in due time before the trial been subpoenaed by the Crown such certificate of such justices shall not render the deposition admissible.","sortOrder":75},{"sectionNumber":"sec.68","sectionType":"section","heading":null,"content":"### Section sec.68\n\ns 68 amd 1899 63 Vic No. 9 s 3(2)sch 3\nom 1977 No. 47 s 3 (2) sch 1 pt B","sortOrder":76},{"sectionNumber":"sec.69","sectionType":"section","heading":null,"content":"### Section sec.69\n\ns 69 om 1886 50 Vic No. 17 s 2sch 1\nhdg prec s 70 impliedly om 1977 No. 47 s 3 (2) sch 1 pt B","sortOrder":77},{"sectionNumber":"sec.70","sectionType":"section","heading":null,"content":"### Section sec.70\n\ns 70 sub 1903 3 Edw 7 No. 10 s 10sch 3\nom 1977 No. 47 s 3 (2) sch 1 pt B","sortOrder":78},{"sectionNumber":"sec.71","sectionType":"section","heading":null,"content":"### Section sec.71\n\ns 71 sub 1903 3 Edw 7 No. 10 s 10sch 3\nom 1977 No. 47 s 3 (2) sch 1 pt B\nhdg prec s 72 impliedly om 1977 No. 47 s 3 (2) sch 1 pt B","sortOrder":79},{"sectionNumber":"sec.72","sectionType":"section","heading":null,"content":"### Section sec.72\n\ns 72 sub 1903 3 Edw 7 No. 10 s 10sch 3\nom 1977 No. 47 s 3 (2) sch 1 pt B","sortOrder":80},{"sectionNumber":"sec.73","sectionType":"section","heading":null,"content":"### Section sec.73\n\ns 73 om 1977 No. 47 s 3 (2) sch 1 pt B","sortOrder":81},{"sectionNumber":"sec.74","sectionType":"section","heading":null,"content":"### Section sec.74\n\ns 74 om 1977 No. 47 s 3 (2) sch 1 pt B\nhdg prec s 75 om 1908 8 Edw 7 No. 18 s 2 sch 1","sortOrder":82},{"sectionNumber":"sec.75","sectionType":"section","heading":null,"content":"### Section sec.75\n\ns 75 om 1899 63 Vic No. 9 s 3(2) sch 3","sortOrder":83},{"sectionNumber":"sec.76","sectionType":"section","heading":null,"content":"### Section sec.76\n\ns 76 amd 1899 63 Vic No. 9 s 3(2) sch 3\nom 1977 No. 47 s 3 (2) sch 1 pt B\nhdg prec s 77 impliedly om 1977 No. 47 s 3 (2) sch 1 pt B","sortOrder":84},{"sectionNumber":"sec.77","sectionType":"section","heading":null,"content":"### Section sec.77\n\ns 77 om 1977 No. 47 s 3 (2) sch 1 pt B\nhdg prec s 78 impliedly om 1977 No. 47 s 3 (2) sch 1 pt B","sortOrder":85},{"sectionNumber":"sec.78","sectionType":"section","heading":null,"content":"### Section sec.78\n\ns 78 om 1977 No. 47 s 3 (2) sch 1 pt B","sortOrder":86},{"sectionNumber":"pt.3","sectionType":"part","heading":"Commencement and short title","content":"# Commencement and short title","sortOrder":87},{"sectionNumber":"sec.79","sectionType":"section","heading":"Commencement of Act—short title","content":"### sec.79 Commencement of Act—short title\n\nThis Act shall commence on 31 December 1867 and may be referred to as the Evidence and Discovery Act 1867 .","sortOrder":88}],"analysis":{"summary":{"complexity_score":5,"scope_assessment":{"changed":true,"description":"The Act originally covered a very broad range of evidence and discovery topics across civil and criminal proceedings, including witness examination, discovery of documents, court procedures, and evidentiary rules. Through successive repeals — most dramatically in 1977 — it has been reduced to a narrow set of provisions dealing primarily with overseas document authentication, certified copies of Supreme Court records, limited criminal evidence rules, and civil trial speech order. Its scope has contracted dramatically from a comprehensive evidence code to a small collection of surviving procedural provisions."},"complexity_factors":["Archaic language throughout — 19th century legal drafting is difficult to parse for modern readers","Heavily amended over more than 150 years, requiring cross-referencing multiple amending Acts to understand what remains operative","Most sections are repealed, making it hard to identify what actually survives and has legal effect","Section 37A involves complex cross-references to Commonwealth legislation (Consular Fees Act 1955) and international diplomatic law concepts","References to defunct court roles (e.g., 'master in equity', 'prothonotary') that no longer exist in their original form","Overlapping references to other Queensland and Commonwealth Acts without full context provided","Duplicated text throughout the document (sections appear in both heading and subsection form) creates confusion about actual content"],"plain_english_summary":"## Evidence and Discovery Act 1867 (Queensland)\n\n**What is this?**\nThis is a very old Queensland law originally dealing with how courts handle evidence, legal documents, oaths, and court procedures. Originally passed in 1867, it was a wide-ranging piece of legislation covering everything from how court judgments could be used as evidence to how witnesses give evidence.\n\n**What does it actually do NOW?**\nAlmost nothing — the vast majority of this Act has been repealed (deleted) over the decades, most significantly in 1977. What remains are just **four surviving provisions**:\n\n1. **Section 31** – Certified copies of Queensland Supreme Court judgments, orders, and decrees can be used as evidence in court without needing to produce the original documents. The copy just needs to be signed (certified) by the right court official.\n\n2. **Section 37A** – If you need to swear an oath, sign an affidavit (a written statement of facts), or complete a notarial act (a formal legal document authentication) for Queensland legal purposes, and you're **overseas**, you can do it in front of an Australian or Commonwealth consular officer (like a diplomat or consul) instead of a Queensland official. This is very useful if you're living or travelling abroad and need to complete Queensland legal paperwork.\n\n3. **Section 38** – Documents stamped or signed by a consular officer confirming an oath or notarial act was completed are accepted as genuine without further proof of who signed them.\n\n4. **Section 43** – Rules about the order in which lawyers can make speeches to a jury during a civil (non-criminal) trial.\n\n5. **Sections 61 and 67** – Affidavits taken under this Act can be used in any court. In criminal cases, if a defence witness dies before trial, their earlier recorded statement (deposition) may be read to the jury.\n\n**Who does this affect?**\n- Queenslanders living or working **overseas** who need to sign legal documents for Queensland courts or matters\n- Lawyers involved in civil jury trials\n- Anyone involved in Queensland court proceedings where old Supreme Court records are relevant\n- Defendants in criminal cases whose witnesses die before trial\n\n**Bottom line:** This is largely a historical relic. Most of its content was scrapped decades ago. The parts that survive deal mostly with how documents get formally authenticated, especially when people are overseas."},"flash_summary":{"complexity_score":6,"scope_assessment":{"changed":true,"description":"The version of the Act supplied shows many numbered provisions marked as omitted or amended (for example multiple sections annotated 'om 1977 No. 47 ...'), leaving a narrower set of clearly operative provisions (notably sec.31, sec.37A, sec.38, sec.43, sec.61, sec.67 and sec.79). That recorded pattern of omissions in the source indicates the Act as presented now focuses on specific evidentiary and procedural rules rather than the broader body of provisions originally enacted; the surviving sections concentrate on admissibility of certified copies, overseas consular acts, affidavits, addresses to juries and limited rules on prisoner witnesses (see secs.31, 37A, 38, 43, 61, 67)."},"complexity_factors":["Mixed content: procedural criminal provisions, civil trial procedure, evidentiary rules and international (consular) provisions are combined in one instrument (secs.31, 37A, 43, 61, 67).","Numerous cross‑references to offices and other statutes (e.g. Consular Fees Act 1955 references in sec.37A) require external linkage to interpret practical scope.","Widespread notation of omitted sections and amendments in the source creates fragmentation between surviving operative provisions and historical material.","Legal effect relies on formal words and certifications that produce prima facie status (secs.31, 38), requiring parties to understand rebuttal mechanics and evidentiary presumptions.","International elements (consular acts abroad) introduce reliance on foreignposted officers’ functions and appointment rules, adding cross‑jurisdictional interpretation needs (sec.37A).","Archaic drafting and institutional terminology (e.g. prothonotary, master in equity) increase the interpretive load for modern readers."],"plain_english_summary":"What this law does (mechanics)\n\n- The Act sets rules about how certain pieces of evidence and parts of trial procedure are treated in Queensland courts.\n\n- Key operative rules in the text provided are:\n  - Certified copies of judgments, decrees, rules and orders from the Supreme Court at Brisbane may be admitted in other courts and tribunals as evidence of their contents without producing the originals, if they are certified by the appropriate officer (master in equity for equitable orders; prothonotary or chief clerk for common‑law or ecclesiastical orders). Such copies are treated as prima facie certified when they purport to carry the certification (sec.31).\n  - Oaths, affidavits and notarial acts required for Queensland proceedings may be made, sworn or done before certain consular officers or authorised Commonwealth employees outside Australia; those acts are to have the same legal effect as if made before a Queensland authority. Documents that must be attested, verified, sealed, signed, acknowledged or declared before a Queensland justice of the peace may likewise be executed before those overseas officers and will be as effectual (sec.37A, subsections 1–4).\n  - Documents that purport to carry the seal or signature of a consular officer or authorised employee are prima facie evidence of that seal or signature and are admissible without separate proof of authenticity (sec.38).\n  - In civil trials, the Act prescribes who may open and reply in addresses to the court or jury and allows the party who begins to make a second address at the close of their case under specified circumstances (sec.43).\n  - Affidavits and affirmations properly taken under this Act may be read and used in any court or judicature in the State and have the same force as if taken before that court or a person authorised by it (sec.61).\n  - In criminal cases involving a prisoner, a witness’s deposition taken at committal may be read at trial for the prisoner’s defence if the witness died or is too ill to attend or if justices certified the witness’s evidence as material and the prisoner could not afford attendance; but a Crown‑subpoenaed witness (if subpoenaed in due time) is an exception and the deposition is not admissible under that certificate (sec.67).\n  - The Act’s formal commencement date and short title are recorded (sec.79).\n\nWho is affected and who decides (practical lines of authority)\n\n- Parties in civil and criminal proceedings: the rules affect litigants who rely on court records, affidavits, overseas notarisation/attestation and depositions (secs.31, 37A, 38, 61, 67).\n- Court officers and registrars: certification by the master in equity, prothonotary or chief clerk controls whether copies of Supreme Court records can be received without originals (sec.31).\n- Consular officers and certain Commonwealth or trade commission employees abroad: they are authorised for making oaths, affidavits and notarial acts that Queensland courts must treat as effective (sec.37A).\n- Judges and tribunals: they are directed to accept the specified certified copies, prima facie seals/signatures, affidavits taken under the Act, and overseas consular acts as effective evidence (secs.31, 38, 61, 37A).\n\nWho pays, incentives and behaviour changes\n\n- Who pays: the text directly touches payment only in one place — sec.67 presumes that a prisoner may be unable to bear the expense of a witness’s attendance; the rule allows reading the deposition in that circumstance rather than incurring attendance costs. The Act itself does not specify fees for consular or notarial acts or for certification by court officers.\n\n- Incentives created:\n  - Certifying officers and registrars become gatekeepers for admitting copies without originals; parties have an incentive to obtain the proper certification to avoid producing originals (sec.31).\n  - Litigants with overseas transactions or parties have an incentive to use consular or authorised officers abroad to take oaths or attest documents because those acts will be treated as valid in Queensland (sec.37A).\n  - Defence teams for prisoners may rely on committal depositions where witnesses cannot attend or die, subject to the Crown‑subpoena exception; this reduces the financial burden of producing witnesses (sec.67).\n\nCompliance burden, discretion and implementation risks\n\n- Compliance burdens:\n  - Parties must obtain the correct form of certification from the specified court officers for Supreme Court copies (sec.31).\n  - Where documents are executed abroad, parties must ensure a consular officer or an authorised employee performs the act to get the legal effect in Queensland (sec.37A).\n  - To rely on depositions under sec.67, a party must show the justices previously certified the witness’s evidence as material and the prisoner’s inability to pay, or that the witness died or was too ill to travel (sec.67).\n\n- Discretion and implementation risk:\n  - The Act treats documents as prima facie certified or sealed where they purport to be so (sec.31; sec.38). That reduces the immediate documentary proof burden but leaves open the possibility of later rebuttal; it places initial trust in the form of the document rather than an independent authentication step.\n  - Consular officers and authorised employees operate under their own appointment and functional rules overseas; the Act asks local courts to treat their acts as equivalent to Queensland authorities (sec.37A). That creates reliance on the competence and bona fides of overseas officers and on the cross‑jurisdictional mechanisms that govern them.\n\nTrade‑offs, opportunity costs and likely operational effects (source‑grounded)\n\n- The Act substitutes certified copies and certain overseas attestations for the production of originals or in‑person attestations in Queensland (secs.31, 37A, 38). The concrete effects are lower transactional and travel costs for parties and courts, and faster documentary proof in many cases; the text does not itself create funding for those services nor set fees.\n\n- The Act centralises evidentiary acceptability on formal certification language and on the office of particular officials (masters, prothonotaries, consular officers). That concentrates the authority to admit evidence in named office‑holders and in the formal appearance of documents (secs.31, 37A, 38).\n\n- Where the Act permits depositions to be read for prisoners (sec.67), it trades the live‑testimony advantage of cross‑examination in person against cheaper, earlier evidence preservation at committal.\n\nWhat the Act does not do (in the text provided)\n\n- The text does not set fees, penalties, or detailed procedural steps for obtaining the certifications or consular acts; it simply prescribes their legal effect when done as stated (secs.31, 37A, 38).\n\nSource citations: principal operative provisions relied on in this summary include sec.31 (certified copies), sec.37A (oaths and notarial acts abroad), sec.38 (prima facie acceptance of consular seals/signatures), sec.43 (addresses to court/jury), sec.61 (affidavits received without fresh proof), sec.67 (prisoners’ witnesses’ depositions), and sec.79 (commencement/short title)."},"kimi_summary":{"content_quality":"ok","complexity_score":4,"scope_assessment":{"changed":true,"description":"The legislation has shrunk dramatically from its original scope. Enacted in 1867 as a comprehensive evidence and discovery code covering judgments, court procedures, witness examinations, and discovery processes, it was gutted by the Evidence Act 1977. The current Act retains only fragments: certified court copies (s 31), overseas notarial powers (s 37A-38), trial speech order (s 43), affidavit admissibility (s 61), and prisoner witness depositions (s 67). It has transformed from a broad procedural statute into a residual repository for specific evidentiary rules that weren't consolidated into the 1977 Act or were added later."},"complexity_factors":["Extensive repeal history with 60+ sections marked 'om' (omitted) in 1977, creating a fragmented legislative structure","Multiple amendment layers spanning 1867–2000, with some sections amended 3+ times before repeal","Section 37A contains nested definitions ('consular officer' lists 13 sub-categories) and cross-references to Commonwealth Consular Fees Act 1955","Surviving provisions use archaic language ('prothonotary', 'ecclesiastical jurisdiction', 'held to bail') requiring historical legal knowledge to interpret","Section 67 contains conditional logic with three alternative prerequisites (death, illness, or poverty certification) plus an exception clause","Duplicative text structure with sections repeated in full and then broken into subsections"],"plain_english_summary":"This is a **heavily gutted historical Queensland statute** that originally dealt with court procedures, evidence rules, and discovery processes. Today, it is essentially a legislative skeleton containing only three surviving operative provisions:\n\n**What remains in force:**\n\n*   **Section 31** — Allows certified copies of Supreme Court judgments, decrees, rules and orders to be used as evidence in Queensland courts without needing to produce the original documents. The copies must be certified by specific court officers (the Master in Equity for equitable matters; the Prothonotary or Chief Clerk for common law and ecclesiastical matters).\n\n*   **Section 37A** — Allows people overseas to take oaths, make affidavits, and have documents notarised or witnessed before Australian consular officers or authorised trade officials, rather than needing to find a Queensland justice of the peace. This makes legal processes possible for Queenslanders abroad.\n\n*   **Section 38** — Provides that documents bearing the seal and signature of consular officers (as defined in section 37A) are automatically accepted as genuine in Queensland courts without needing extra proof that the signature or seal is authentic.\n\n*   **Section 43** — Governs the order of speeches in civil trials, specifically allowing the party who begins the case to make a second address (to sum up evidence) if the opponent doesn't call evidence.\n\n*   **Section 61** — States that affidavits and affirmations taken under this Act can be used in any Queensland court with the same force as if they were taken directly in that court.\n\n*   **Section 67** — Allows depositions (sworn statements taken before trial) from defence witnesses to be read at criminal trials if the witness dies or is too ill to travel, provided the justices certified beforehand that the prisoner couldn't afford to bring the witness to trial.\n\n**What happened to the rest:**\nThe vast majority of the Act (sections 1–30, 32–37, 39–42, 44–60, 62–66, 68, 69–78) was **repealed in 1977** by the Evidence Act 1977. The remaining sections are fragments preserved because they weren't consolidated into the new Evidence Act or were subsequently added back.\n\n**Who it affects:**\n*   Litigants in Queensland courts using certified court documents\n*   Queenslanders overseas who need to sign legal documents or take oaths\n*   Criminal defendants relying on depositions of unavailable witnesses\n*   Lawyers conducting civil trials\n\n**Why it matters:**\nWhile most of this 1867 Act is dead law, the surviving sections fill specific gaps. Section 37A in particular remains practically important for Queenslanders abroad who need to execute legal documents without returning to Australia."},"issue_detection":{"absurdities":[{"type":"impossible_compliance","section":"sec.31","severity":"high","reasoning":"The offices of 'master in equity', 'prothonotary', and 'chief clerk' of the Supreme Court no longer exist in Queensland's court structure. Since the section survived the 1977 omnibus repeal, it remains on the books but the only persons authorised to certify documents for evidentiary purposes under this section cannot exist. No valid certification can be obtained.","confidence":0.85,"description":"Section 31 refers to certification by 'the master in equity' for equitable jurisdiction documents and 'prothonotary or chief clerk' for common law documents. These offices were abolished decades ago in Queensland, rendering the certification requirements impossible to satisfy through the prescribed mechanism."},{"type":"other","section":"sec.31","severity":"medium","reasoning":"The section body states the rule in full prose, then immediately restates it in identical language as numbered subsections. Both versions are simultaneously operative with no hierarchy or reconciliation mechanism, producing redundant legal obligations and potential interpretive confusion about which version governs.","confidence":0.95,"description":"Section 31 duplicates its entire substantive text verbatim: the section heading block contains the full operative text once, and then subsections (sec.31-ssec.1) and (sec.31-ssec.2) repeat the identical text word-for-word, creating two parallel but identical operative provisions with no distinction between them."},{"type":"circular_definition","section":"sec.37A-ssec.5","severity":"medium","reasoning":"The drafting error causes the definition of 'enactment' to apply only to the subsection that contains the definition, rendering it self-referentially useless. The word 'enactment' does not appear in subsection 5 itself other than as the defined term. The definition was clearly intended to apply to subsection 4 where the word 'enactment' is used substantively.","confidence":0.9,"description":"Subsection 5 states 'For the purposes of this subsection—' and then defines 'enactment', but the definition is plainly intended for the purposes of subsection 4, not subsection 5 itself. A subsection cannot meaningfully define a term 'for the purposes of this subsection' when that subsection contains only the definition itself."},{"type":"other","section":"sec.67","severity":"medium","reasoning":"The section collapses three distinct factual scenarios (death, illness, poverty certificate) into a single sentence structure that is ambiguous about whether the certificate condition applies to all three scenarios or only the third. A prisoner's witness who has died cannot simultaneously be the subject of a certificate that 'the prisoner is willing to attend' - the prisoner attends the trial, not the deceased witness, adding further confusion.","confidence":0.75,"description":"Section 67 sets conditions for reading a deposition in a prisoner's defence where a witness has died, is too ill to travel, OR where justices have certified the witness is material and the prisoner cannot bear attendance costs. These three scenarios are grammatically merged with 'and' and 'in all cases in which', making it unclear whether all conditions must simultaneously apply or whether they are alternatives."},{"type":"retroactive_impossibility","section":"sec.67-ssec.1","severity":"medium","reasoning":"The certificate must precede committal, yet it addresses circumstances (witness death or illness) that arise after committal. Justices cannot certify before committal that a witness who is currently healthy will die or become too ill to travel. This creates a temporal impossibility for the death and illness limbs of the section.","confidence":0.8,"description":"The section requires that justices certify 'before such committal or holding to bail' that the prisoner 'will be unable to bear the expense of attendance'. This requires justices to certify a future financial inability at the time of committal, before the witness's death or illness has occurred, making the certificate prospectively absurd in death and illness scenarios."},{"type":"other","section":"sec.43-ssec.3","severity":"medium","reasoning":"Legislation that preserves rights 'as at present' without fixing a reference date creates an ambulatory interpretive problem. The common law right of reply in 1867 may have evolved substantially. Courts must now reconstruct 1867 practice, making this provision effectively inoperable as a clear rule of procedure.","confidence":0.85,"description":"Section 43(3) provides that 'the right to reply shall be the same as at present', using a 1867 temporal reference that has no fixed legal meaning 157 years later. The 'present' in 1867 is not ascertainable from the face of the Act without extensive historical research, rendering the provision practically meaningless as a standalone operative rule."},{"type":"impossible_compliance","section":"sec.61","severity":"high","reasoning":"The section's operation is entirely contingent on affidavits being 'taken under this Act'. With all affidavit-taking provisions repealed, no affidavit can be 'duly taken under this Act', rendering section 61 a nullity. It creates an evidentiary rule for a class of documents that can no longer exist.","confidence":0.8,"description":"Section 61 provides that affidavits 'duly taken under this Act' may be received in evidence, but virtually all the substantive provisions of the Act dealing with the taking of affidavits (sections 59-60 and surrounding provisions) were repealed by 1977. There is no remaining provision 'under this Act' pursuant to which affidavits could be 'duly taken', making the section an operative provision with no subject matter."},{"type":"other","section":"sec.38","severity":"low","reasoning":"The dual definitional framework means a document could be valid under one definition of 'authorised employee' but not the other, or the same person could qualify under both with potentially different legal consequences. The failure to reconcile or consolidate these parallel definitional regimes is a drafting flaw.","confidence":0.7,"description":"Section 38 cross-references 'an authorised employee within the meaning of the Australian Consular Officers' Notarial Powers and Evidence Act 1946' as a separate category alongside persons who are 'a consular officer or an authorised employee within the meaning of section 37A of this Act'. Section 37A also defines 'authorised employee' by reference to the Consular Fees Act 1955. The two definitions of 'authorised employee' may not be coextensive, creating ambiguity about which definition governs."}],"contradictions":[{"severity":"medium","section_a":"sec.37A-ssec.2","section_b":"sec.37A-ssec.4","confidence":0.75,"description":"Section 37A(2) authorises notarial acts 'which, if done in the United Kingdom of Great Britain and Northern Ireland, a notary public could do', limiting the scope of permissible notarial acts by reference to UK notarial practice. Section 37A(4) broadly permits 'any notarial act' to be done before a consular officer without the same UK notarial practice limitation, potentially creating a wider class of permissible acts under subsection 4 than under subsection 2 for the same purposes."},{"severity":"medium","section_a":"sec.37A-ssec.3A","section_b":"sec.37A-ssec.3","confidence":0.85,"description":"Section 37A(3) provides that a document may be 'attested, or verified by, or sealed, or signed, or acknowledged or declared by or before' a consular officer, listing 'signed' but not 'sworn'. Section 37A(3A) provides the same document shall be effectual 'as if duly attested, or verified by, or sealed, or sworn, or acknowledged or declared before a justice of the peace', inserting 'sworn' in place of 'signed'. The operative provision authorises signing but not swearing; the deeming provision deems it equivalent to swearing but not signing, creating a mismatch in the acts authorised versus the acts to which they are deemed equivalent."},{"severity":"medium","section_a":"sec.38","section_b":"sec.37A-ssec.1","confidence":0.8,"description":"Section 38 extends evidentiary recognition to documents bearing the seal and signature of a 'British ambassador, envoy, minister, charge d'affaires, secretary of embassy or legation, consul-general, consul, vice-consul, acting consul, pro-consul, or consular agent' without requiring that person to be an officer of a Commonwealth of Nations country. Section 37A(1) defines 'consular officer' as being an officer of the United Kingdom or another Commonwealth of Nations member country only. Documents by officers of non-Commonwealth countries may be recognised under section 38 but the persons certifying them would not qualify as 'consular officers' under section 37A, creating an asymmetry between who can certify for evidentiary purposes versus who can administer oaths."},{"severity":"high","section_a":"sec.67-ssec.1","section_b":"sec.67-ssec.2","confidence":0.8,"description":"Section 67(1) makes a deposition admissible in the prisoner's defence where the justices have certified witness materiality and the prisoner's inability to bear attendance costs. Section 67(2) provides that where the witness has 'in due time before the trial been subpoenaed by the Crown', the certificate shall not render the deposition admissible. This creates a contradiction: the Crown can defeat the prisoner's right to use a deposition in their own defence simply by subpoenaing that witness, even if the witness subsequently dies or becomes too ill to attend. The Crown's procedural act thus nullifies a protective evidentiary right of the accused."},{"severity":"low","section_a":"sec.31","section_b":"sec.38","confidence":0.65,"description":"Section 31 requires positive proof of certification under specific officers' hands before copies of Supreme Court documents are admitted as evidence, with a deeming provision that they are certified if they purport to be. Section 38 admits documents as evidence 'without proof' of seal and signature and deems them prima facie valid if they purport to bear the relevant seal and signature. The two sections apply different and potentially contradictory evidentiary standards (certification required vs no proof required) to overlapping categories of official documents, and it is unclear which standard prevails where both could apply."}]}},"importantCases":[],"_links":{"self":"/api/acts/evidence-and-discovery-act-1867","history":"/api/acts/evidence-and-discovery-act-1867/history","analysis":"/api/acts/evidence-and-discovery-act-1867/analysis","conflicts":"/api/acts/evidence-and-discovery-act-1867/conflicts","importantCases":"/api/acts/evidence-and-discovery-act-1867/important-cases","documents":"/api/acts/evidence-and-discovery-act-1867/documents"}}