Sch 7

Schedule 7 Part A Part B Part C Notes Compilation table 170 Uncommenced provisions table 179 Other notes 179 Defined terms An Act to consolidate and amend the statute law of evidence. ##### 1. Short title This Act may be cited as the *Evidence Act 1906*. [**2.** Omitted under the Reprints Act 1984 s. 7(4)(f).] ##### 3. Terms used In this Act, unless the context or subject matter otherwise indicates or requires, — Act includes Ordinance; Australasian colony means and includes New South Wales, Queensland, South Australia, Tasmania, Victoria, and Western Australia during such time as such possessions constituted separate colonies; New Zealand, and any part of New Zealand during such time as such part constituted a separate colony; Fiji; and any other British possession which may at any time be created within Her Majesty’s possessions in Australasia; bank means — (a) an ADI (authorised deposit‑taking institution) as defined in section 5 of the *Banking Act 1959* of the Commonwealth; or (b) a bank constituted by a law of a State, a Territory or the Commonwealth; bankers’ books and expressions referring to bankers’ books include ledgers, day books, cash books, account books, and all other books used in the ordinary business of the bank however such books are compiled, recorded or stored, whether in written form or on microfilm or by electronic process or otherwise; colony includes province; Commonwealth means the Commonwealth of Australia; court includes the High Court of Australia, the Supreme Court, the District Court, the Children’s Court, the Family Court, the Magistrates Court, a warden’s court under the *Mining Act 1978*, and a court of summary jurisdiction; document includes a part of a document; examined copy means a copy proved to have been examined with the original, and to correspond therewith. The examination may be made either by one person reading both the original and the copy or by 2 persons, one reading the original and the other the copy, and it is not necessary that each should alternately read both; Gazette means and includes the *London* *Gazette*, the *Edinburgh* *Gazette*, the *Dublin* *Gazette*, the *Commonwealth of Australia* *Gazette* and the *Government Gazette*, *Royal Gazette*, or other official gazette of any State or Australasian colony; Government Printer means and includes the Printer to Her Majesty, and any person printing or publishing for the Government of the Commonwealth or of any State or Australasian colony, and any person purporting to be authorised to print or publish the Statutes, Ordinances, Acts of State, or other public Acts of the Legislature of any Australasian colony, or otherwise to be the Government Printer of such colony; judge means a Justice of the High Court of Australia and a judge of the Supreme Court of Western Australia, and includes a judge of The District Court of Western Australia, a judge of the Family Court of Western Australia, a judge or magistrate of the Children’s Court of Western Australia, a magistrate of the Magistrates Court, a coroner within the meaning of the *Coroners Act 1996*, and also any justice or justices of the peace sitting in court; legal proceeding or proceeding includes any action, trial, inquiry, cause, or matter, whether civil or criminal, in which evidence is or may be given, and includes an arbitration; person acting judicially means any person having, in Western Australia, by law or by consent of parties, authority to hear, receive, and examine evidence; photograph means a durable facsimile of an original obtained by any photographic, photostatic or similar process; prisoner means and includes any person committed to prison for punishment, or on remand, or for trial, safe custody, or otherwise; State means a State of the Commonwealth; the State means the State of Western Australia or the colony of Western Australia prior to the establishment of the Commonwealth; uncorroborated evidence, in relation to the conviction of a person accused of an offence, means evidence that is not corroborated in some material particular by other evidence implicating the accused person; votes and proceedings shall be deemed to include journals and minutes, and any papers purporting to be printed by the authority of and to be laid before either House of the Parliament of the Commonwealth, or of any State or of any Australasian colony. [Section 3 amended: No. 11 of 1964 s. 2; No. 111 of 1978 s. 2; No. 66 of 1987 s. 4; No. 70 of 1988 s. 35; No. 15 of 1991 s. 23; No. 73 of 1994 s. 4; No. 26 of 1999 s. 78(2); No. 71 of 2000 s. 3; No. 15 of 2003 s. 15; No. 59 of 2004 s. 89; No. 13 of 2021 s. 57.] ##### 4. Application of Act All the provisions of this Act, except where the contrary intention appears, shall apply to every legal proceeding. ##### 5A. *Courts and Tribunals (Electronic Processes Facilitation) Act 2013* Part 2 applies The *Courts and Tribunals (Electronic Processes Facilitation) Act 2013* Part 2 applies to this Act (other than section 19B). [Section 5A inserted: No. 20 of 2013 s. 60.] ##### 5. This Act not to derogate from existing powers The provisions of this Act shall be in addition to and not in derogation of any powers, rights, or rules of evidence existing at common law, or given by any law at any time in force in the State not inconsistent with the provisions of this Act. *Competency and compellability of witnesses* ##### 6. Witnesses interested or convicted of offence No person shall be excluded from giving evidence in any proceeding on the ground that he has or may have an interest in the matter in question, or in the result of the proceeding, or on the ground that he has previously been convicted of any offence. ##### 7. Parties to civil proceedings and spouses and ex‑spouses of parties In any civil proceeding the parties thereto and the persons on whose behalf such proceeding is brought or defended, and the wives, former wives, husbands and former husbands of such parties or persons respectively, shall, subject to the provisions of this Act, be competent and compellable to give evidence on behalf of either or any of the parties to such proceeding. [Section 7 amended: No. 48 of 1991 s. 5.] ##### 8. Accused persons in criminal cases (1) Except as in this Act it is otherwise provided, every person charged with an offence shall be a competent but not a compellable witness at every stage of the proceedings whether the person so charged is charged solely or jointly with any other person: Provided as follows — (a) a person so charged shall not be called as a witness except upon his own application; [(b) deleted] (c) the failure of any person charged with an offence to give evidence shall not be made the subject of any comment by the prosecution; (d) a person charged and being a witness in pursuance of this section may be asked any question in cross‑examination, notwithstanding that it would tend to criminate him as to the offence charged; (e) a person charged and called as a witness in pursuance of this section shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character, unless — (i) the proof that he has committed or been convicted of such other offence is admissible in evidence to show that he is guilty of the offence wherewith he is then charged; or (ii) he has personally, or by his advocate, asked questions of the witnesses for the prosecution with a view to establish his own good character, or has given evidence of his good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution or a person who died as a result of the offence wherewith he is then charged; or (iii) he has given evidence against any other person charged with the same offence; (f) when paragraph (e)(ii) or (iii) is or becomes applicable to any person charged who gives evidence for the defence, it shall be open to the prosecution, or to any other person charged against whom he has given evidence, to call evidence, that such person is of bad character or has been convicted of or charged with any offence other than that with which he then stands charged, notwithstanding that the case for the prosecution or of such other person charged may already have been closed; (g) every person called as a witness in pursuance of this section shall, unless otherwise ordered by the court, give his evidence from the witness box or other place from which the other witnesses give their evidence. [(2) deleted] [Section 8 amended: No. 16 of 1913 s. 2; No. 48 of 1991 s. 6; No. 71 of 2000 s. 4; No. 27 of 2002 s. 30; No. 84 of 2004 s. 41.] ##### 9. Spouses and ex‑spouses of accused persons in criminal cases (1) In any criminal proceeding (and at every stage of the proceeding), the wife or husband of an accused shall, subject to this Act, be — (a) competent to give evidence on behalf of the prosecution, the accused or any person being tried jointly with the accused; and (b) compellable to give evidence on behalf of the accused or any person being tried jointly with the accused; and (c) compellable to give evidence on behalf of the prosecution against the accused or any person being tried jointly with the accused if — (i) the accused is charged with an offence under a provision mentioned in the Second Schedule or under a repealed Code section; or (ii) the accused is charged with attempting or conspiring to commit, or with inciting the commission of, an offence under a provision mentioned in the Second Schedule or under a repealed Code section; or (iii) the accused is charged on the complaint of the wife or husband with an offence committed with respect to the property of the wife or husband; or (iv) the wife or husband is compelled, under another enactment, to give that evidence. (2) In any criminal proceeding (and at every stage of the proceeding), a former wife or former husband of an accused shall, subject to this Act, be competent and compellable to give evidence on behalf of the prosecution, the accused or any person being tried jointly with the accused. [(3) deleted] (4) Nothing in this section shall operate to compel an accused in any criminal proceeding to give evidence in the proceeding. (5) If the wife or husband of an accused in any criminal proceeding is called as a witness for the prosecution but is not a compellable witness for the prosecution, it is the duty of the judge to inform the wife or husband that she or he is not compellable to give evidence on behalf of the prosecution if she or he is unwilling to do so. (6) In subsection (1) — repealed Code section means a repealed section of *The Criminal Code* that, before it was repealed, enacted an offence constituted by acts or omissions that are substantially the same as the acts or omissions that constitute an offence under a section of *The Criminal Code* that is mentioned in Part 1 of the Second Schedule. [Section 9 inserted: No. 48 of 1991 s. 7; amended: No. 71 of 2000 s. 5; No. 27 of 2002 s. 31; No. 84 of 2004 s. 82.] [**10.** Deleted: No. 48 of 1991 s. 8.] ##### 11. Court may compel answer to incriminating question (1) Whenever in any proceeding any person called as a witness, or required to answer any interrogatory, declines to answer any question or interrogatory on the ground that his answer will criminate or tend to criminate him, the judge may, if it appears to him expedient for the ends of justice that such person should be compelled to answer such question or interrogatory, tell such person that, if he answers such question or interrogatory, and other questions or interrogatories that may be put to him, in a satisfactory manner, he will grant him the certificate hereinafter mentioned. (2) Thereupon such person shall no longer be entitled to refuse to answer any question or interrogatory on the ground that his answer will criminate or tend to criminate him; and thereafter if such person shall have given his evidence to the satisfaction of the judge, the judge shall give such person a certificate to the effect that he was called as a witness or interrogated in the said proceeding and that his evidence was required for the ends of justice, and was given to his satisfaction. (2a) Where in a proceeding a person is given a certificate under subsection (2) in respect of any evidence, a statement made by him, as part of that evidence, in answer to a question or interrogatory is not admissible in evidence in criminal proceedings against the person other than on a prosecution for perjury committed in the proceeding. (3) In subsections (1) and (2), judge does not include a justice of the peace when constituting the Magistrates Court or the Children’s Court, whether sitting alone or with another justice of the peace. [Section 11 amended: No. 47 of 1990 s. 4 1; No. 15 of 1991 s. 23; No. 59 of 2004 s. 89.] ##### 11A. Judge may restrict publication of evidence where s. 11 certificate given (1) Where in a proceeding a judge gives to a person a certificate under section 11(2) in respect of any evidence and the judge considers that publication of a report of the evidence or of the giving of the certificate may tend to prejudice any prosecution that has been or may be brought against the person, the judge may make an order prohibiting publication of a report of or relating to the evidence, or any part of the evidence, and may extend the order to include a report of the fact that the certificate was granted. (2) A person who fails to comply with an order made under subsection (1) commits a contempt of the Supreme Court and is punishable accordingly by that court. (3) Where a body corporate fails to comply with an order made under subsection (1) and it is proved that the failure occurred with the consent, connivance, or authority of any director, manager, secretary or other officer of the body corporate, or of any member of the managing body of the body corporate, or of any person who was purporting to act in any such capacity, he or she as well as the body corporate commits the contempt and is punishable under subsection (2). [Section 11A inserted: No. 47 of 1990 s. 5.] ##### 12. Witnesses in revenue cases may be compelled to give evidence (1) In any proceeding for the breach of any Act relating to — (a) duty under the *Duties Act 2008*; or (b) the public revenues; or (c) the sale of intoxicating liquors, or in any proceeding brought by or on behalf of or against the Crown under or in pursuance of the provisions of any such Act, the judge may require any person, except the accused in proceedings under paragraph (c), to be examined as a witness. (2) A person so required to be examined as aforesaid shall not be excused from being so examined, or from answering any question put to him touching any such breach as aforesaid, on the ground that his evidence will tend to incriminate him. (3) If any such person refuses to be examined, or to answer any such question as aforesaid, he shall be deemed to be a witness appearing under a subpoena and refusing without lawful cause or excuse to be sworn or to give evidence. (4) Every person required to be examined under this section touching any such breach as aforesaid, who on such examination makes to the best of his knowledge true and faithful discovery of all matters whereon he is so examined touching such breach and thereby gives evidence tending to incriminate himself shall, on application, receive from the judge before whom he is examined a certificate that he has made such true and faithful discovery. (5) In subsections (1) and (4), judge does not include a justice of the peace when constituting the Magistrates Court or the Children’s Court, whether sitting alone or with another justice of the peace. [Section 12 amended: No. 15 of 1991 s. 23; No. 59 of 2004 s. 89; No. 12 of 2008 Sch. 1 cl. 8(1); No. 20 of 2013 s. 61.] ##### 13. Certificate under s. 12 may be pleaded in bar to prosecution If any person examined as a witness under section 12 receives the certificate therein mentioned (but not otherwise) he shall be freed from all criminal prosecutions and penal actions, and from all penalties, forfeitures, and punishments to which he was liable for anything done before that time in respect of the matters touching which he is so examined: Provided that nothing herein contained shall make such certificate pleadable in bar of any indictment or information brought against such person for perjury committed in such proceedings as aforesaid. [Section 13 amended: No. 47 of 1990 s. 6.] ##### 14. Customs prosecutions, accused compellable In every Customs prosecution, except for an indictable offence or for an offence directly punishable by imprisonment, the accused is compellable to give evidence. [Section 14 amended: No. 84 of 2004 s. 82.] ##### 15. Persons may be examined without subpoena Any person present at any legal proceeding wherein he might have been compellable to give evidence and produce documents by virtue of a subpoena or other summons or order duly issued and served for that purpose, shall be compellable to give evidence and produce documents then in his possession and power, in the same manner, and in case of refusal shall be subject to the same penalties and liabilities, as if he had been duly subpoenaed or summonsed for that purpose. ##### 16. Witnesses failing to attend trial (1) Where any person duly bound by recognizance or served with a subpoena, summons, or order to attend in any court as a witness at the trial of any case, civil or criminal, fails to appear when called in open court, either at such trial or upon the day appointed for such trial, the court may — (a) upon proof of such recognizance or of his having been duly served with such subpoena, summons, or order, call upon him to show cause why execution upon such recognizance or an attachment for disobedience to such subpoena, summons, or order should not be issued against him; or (b) upon proof of such recognizance or service, and also that his non‑appearance is without just cause or reasonable excuse, and upon oath that he will probably be able to give material evidence, issue a warrant to bring him before the court to give evidence at such trial. (2) Such proof may be oral before the court or by affidavit. ##### 17. Procedure on non‑appearance of witness (1) Every rule or order to show cause as aforesaid may — (a) be made returnable before the court itself at the then sittings or at some future sitting; or (b) in respect of the non‑appearance of a witness at a Circuit Court or on the trial of a case pending in the Supreme Court, be made returnable in the Supreme Court. (2) On the return of any such rule or order, the court may deal with the case as the Supreme Court might and would have done upon a rule to the like effect issued out of that court. *Privilege of witnesses* ##### 18. Communications during marriage Subject to the provisions of section 9, a husband shall not be compellable in any proceeding to disclose any communication made to him by his wife, or by him to his wife, during the marriage, and a wife shall not be compellable in any proceeding to disclose any communication made to her by her husband, or by her to her husband, during the marriage: Provided that this section shall not apply, in any proceeding in the Supreme Court in its divorce and matrimonial causes jurisdiction, or in any proceeding in the Family Court of Western Australia, to any husband and wife who are both parties to such proceeding. [Section 18 amended: No. 111 of 1978 s. 3; No. 48 of 1991 s. 9.] *Spouses competent to give evidence as to non‑access* [Heading inserted: No. 16 of 1956 s. 2.] ##### 19. Evidence of non‑access In any proceedings including proceedings pending at the commencement of the *Evidence Act Amendment Act 1956*, either party to a marriage may give evidence proving or tending to prove that the parties to the marriage did not have sexual relations with each other at any particular time notwithstanding that such evidence would show or tend to show that any child born to the wife during the marriage was illegitimate. [Section 19 inserted: No. 16 of 1956 s. 2.] *Protection of confidential communications given in counselling concerning sexual assault* [Heading inserted: No. 31 of 2012 s. 4.] ##### 19A. Terms used (1) In this section and sections 19B to 19M — application for leave means an application for leave to disclose or require disclosure of a protected communication in, or in connection with, any criminal proceedings; counselling communication means a communication — (a) made in confidence by a person upon or in respect of whom sexual assault was committed or is alleged to have been committed (the complainant) to another person (the counsellor) who is counselling the complainant in relation to any harm the complainant may have suffered; or (b) made in confidence to or about the complainant by the counsellor in the course of the counselling process; or (c) made in confidence about the complainant by a support person in the course of the counselling process; or (d) made in confidence by or to the counsellor to or by another person who is counselling, or has at any time counselled, the complainant, and includes a communication made through an interpreter; counsels has the meaning given to that term in subsection (2); disclose a protected communication means to disclose, or adduce or produce anything that would disclose — (a) the protected communication; or (b) the contents of a document recording the protected communication; harm includes actual physical bodily harm, financial loss, stress or shock, damage to reputation or emotional or psychological harm (such as shame, humiliation and fear); protected communication means a counselling communication made by, to or about a complainant and includes — (a) a counselling communication made before the commission, or alleged commission, of sexual assault; and (b) a counselling communication not made in connection with sexual assault or alleged sexual assault or any condition arising from sexual assault or alleged sexual assault; and (c) a counselling communication made before the protection provisions were inserted into this Act; protected person, in relation to a protected communication, means — (a) the complainant; or (b) any person who made the protected communication; or (c) an interpreter through whom the protected communication was made; protection provisions means this section and sections 19B to 19M; require disclosure of a protected communication includes — (a) to require (whether by the issue of a subpoena or any other process or procedure) the production of a document recording the protected communication; and (b) to seek an order of the court that will, if made, result in the disclosure of the protected communication or the production of a document recording the protected communication; support person means a parent, carer or other supportive person who is present when a person counsels the complainant to facilitate communication between the complainant and the counsellor or to further the counselling process in some other way; supporting affidavit means the affidavit accompanying an application for leave. (2) A person counsels another person if — (a) the person has undertaken training or study or has experience that is relevant to the process of counselling persons who have suffered harm; and (b) the person — (i) listens to and gives verbal or other support or encouragement to the other person; or (ii) advises, gives therapy to or treats the other person, whether or not for fee or reward. (3) In the protection provisions, a reference to a document recording a protected communication — (a) is a reference to any part of the document that records a protected communication or any report, observation, opinion, advice, recommendation or other matter that relates to the protected communication made by a protected person; and (b) includes a reference to any copy, reproduction or duplicate of that part of the document. (4) For the purposes of the definition of ***counselling communication*** in subsection (1), a communication can be regarded as being made in confidence even if it is made in the presence of a support person or through or in the presence of an interpreter. [Section 19A inserted: No. 46 of 2004 s. 10.] ##### 19B. Protected communications recorded electronically For the purposes of the protection provisions, if — (a) a document recording a protected communication is stored electronically; and (b) a written document recording the protected communication could be created by use of equipment that is usually available for retrieving or collating such stored information, the document stored electronically is to be dealt with as if it were a written document so created. [Section 19B inserted: No. 46 of 2004 s. 10.] ##### 19C. Protected communications not to be disclosed in criminal proceedings except with leave of court (1) A person cannot disclose or require disclosure of a protected communication in, or in connection with, any criminal proceedings except with, and in accordance with, the leave of the court. (2) If a subpoena that purports to require the disclosure of a protected communication is issued without the leave of the court required by subsection (1), the subpoena is of no effect. (3) An application for leave must be made to the court in writing and must be accompanied by an affidavit stating why the applicant has a legitimate forensic purpose for having leave to disclose or require disclosure of the protected communication. (4) If the court considers that the supporting affidavit establishes a prima facie case that the applicant has a legitimate forensic purpose for having the leave, the court is to — (a) fix a day and time for hearing the application; or (b) determine that the application will be heard during the criminal proceedings referred to in subsection (1), and send notification of when the application will be heard, together with copies of the application and the supporting affidavit, to — (c) the applicant and each other party; and (d) each protected person identified in the application or the supporting affidavit; and (e) any other person identified in the application or the supporting affidavit as a person to whom the protected communication was made. (5) If the court does not consider that the supporting affidavit establishes a prima facie case that the applicant has a legitimate forensic purpose for having the leave, the court is to notify the applicant accordingly and the application for leave is taken to have been refused. (6) Section 19E(2) and (3) apply in relation to the court’s consideration of whether the supporting affidavit establishes a prima facie case that the applicant has a legitimate forensic purpose for having the leave. (7) In this section — party means a party to the criminal proceedings referred to in subsection (1). [Section 19C inserted: No. 46 of 2004 s. 10.] ##### 19D. Procedure on hearing of application for leave (1) A protected person or a person referred to in section 19C(4)(e) may appear, or be represented by counsel or solicitor, at the hearing of an application for leave and is to be informed of that right when a notification is sent under section 19C(4)(d) or (e). (2) If there is a jury, the court is to hear and determine an application for leave in the absence of the jury. [Section 19D inserted: No. 46 of 2004 s. 10.] ##### 19E. Application for leave to be dismissed if there is no legitimate forensic purpose for it (1) On the hearing of an application for leave, leave is to be refused by the court if the applicant does not satisfy the court — (a) that the applicant has a legitimate forensic purpose for having leave to disclose or require disclosure of the protected communication; and (b) that other evidence to the same effect as — (i) the protected communication; or (ii) the contents of the document recording the protected communication, as the case may be, is not available. (2) In order to establish that the applicant has a legitimate forensic purpose under subsection (1)(a) it is not sufficient for the applicant — (a) to assert, without proving, one or more of the following — (i) that the protected communication discloses a prior inconsistent statement of the complainant; (ii) that the protected communication relates to the credibility of the complainant or another witness in the criminal proceedings; (iii) that the protected communication relates to the reliability of the testimony of the complainant merely because the complainant has received or is receiving counselling; or (b) to prove one or more of the following — (i) that the protected communication exists; (ii) that the protected communication relates to activity that is the subject of the criminal proceedings; (iii) that the protected communication was made close in time to the activity that is the subject of the criminal proceedings; (iv) that the protected communication reveals allegations of the commission of sexual assault against the complainant by a person other than the applicant. (3) Subsection (2) does not limit — (a) the matters which the court can consider in deciding whether the applicant has a legitimate forensic purpose under subsection (1)(a); or (b) the grounds on which the court can decide that the applicant does not have a legitimate forensic purpose under subsection (1)(a). [Section 19E inserted: No. 46 of 2004 s. 10.] ##### 19F. Determination of application (1) If the court is satisfied as to the matters set out in section 19E(1)(a) and (b), the court is to determine the application for leave. (2) The court may, if it thinks it necessary in order to enable it to determine the application, conduct a preliminary examination of the evidence that is the subject of the application. (3) For the purpose of a preliminary examination the court may require a protected person — (a) to provide written answers to questions; or (b) to appear for oral examination. (4) A preliminary examination is to be conducted in the absence of the parties. [Section 19F inserted: No. 46 of 2004 s. 10.] ##### 19G. Public interest test (1) In determining the application for leave, the court may grant leave to disclose, or require the disclosure of, the protected communication if, and only if, the court determines that it is in the public interest to do so. (2) For the purposes of subsection (1) the court is to have regard to the following — (a) the extent to which disclosing, or requiring the disclosure of, the protected communication is necessary to allow the applicant for leave to make a full defence; (b) whether the evidence of the protected communication or the contents of the document recording the protected communication will have substantial probative value; (c) the likelihood that disclosing, or requiring the disclosure of, the protected communication will affect the outcome of the proceedings; (d) the public interest in ensuring that complainants receive effective counselling, and the extent to which failure to preserve the confidentiality of protected communications may dissuade complainants from seeking counselling or diminish the effectiveness of counselling; (e) the public interest in ensuring that adequate records are kept of counselling communications; (f) the likelihood that disclosing, or requiring the disclosure of, the protected communication will cause harm to the complainant, and the nature and extent of that harm; (g) any other matter that the court considers relevant. [Section 19G inserted: No. 46 of 2004 s. 10.] ##### 19H. Effect of consent (1) The protection provisions do not prevent a protected communication from being disclosed or being required to be disclosed in, or in connection with, any criminal proceedings if the complainant has consented to the disclosure. (2) Consent is not effective for the purposes of this section unless — (a) it is given in writing; and (b) it is given expressly for the purposes of the protection provisions. (3) This section does not apply if the complainant is a child. [Section 19H inserted: No. 46 of 2004 s. 10.] ##### 19I. Loss of sexual assault communications privilege: misconduct (1) The protection provisions do not prevent the production or adducing of evidence of a communication made, or the production of a document prepared, in the furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty. (2) For the purposes of this section, if the commission of the fraud, offence or act is a fact in issue and there are reasonable grounds for finding that — (a) the fraud, offence or act was committed; and (b) a communication was made or document prepared in furtherance of the commission of the fraud, offence or act, the court may find that the communication was so made or document so prepared. [Section 19I inserted: No. 46 of 2004 s. 10.] ##### 19J. Ancillary orders Without limiting any action the court may take to limit the possible harm, or extent of the harm, likely to be caused by the disclosure of evidence of, or the contents of a document recording, a protected communication, the court may — (a) order that all or part of the evidence be heard or document produced in camera; and (b) make any orders relating to the production, inspection, copying or reproduction of the document that, in the opinion of the court, are necessary to protect the safety and welfare of any protected person; and (c) make any orders relating to the suppression of publication of all or part of the evidence given before the court that, in its opinion, are necessary to protect the safety and welfare of any protected person; and (d) make any orders relating to disclosure of identity information that would tend to identify any protected person that, in the opinion of the court, are necessary to protect the safety and welfare of any protected person. [Section 19J inserted: No. 46 of 2004 s. 10.] ##### 19K. Inadmissibility of evidence that must not be adduced or given Evidence that, because of the protection provisions, cannot be disclosed or required to be disclosed in proceedings is not admissible in the proceedings. [Section 19K inserted: No. 46 of 2004 s. 10.] ##### 19L. Application of other laws (1) The protection provisions do not affect the operation of any rule of law in relation to evidence in criminal proceedings except to the extent that they expressly or necessarily have that effect. (2) Without limiting subsection (1), the protection provisions do not affect the operation of a rule of law so far as it relates to the inspection of a document required to be produced in, or in connection with, criminal proceedings. (3) Subject to subsections (4) and (5A), sections 238 and 239 of the *Children and Community Services Act 2004* and section 46 of the *Child Care Services Act 2007* do not apply to the production or disclosure of a protected communication in criminal proceedings. (4) If in criminal proceedings leave is given under the protection provisions to require disclosure of a departmental record as defined in subsection (1) of section 238 of the *Children and Community Services Act 2004*, subsections (5) to (8) of that section apply as if the departmental record had been produced in response to a requirement referred to in subsection (2) of that section. (5A) If in criminal proceedings leave is given under the protection provisions to require disclosure of — (a) a child care record as defined in the *Child Care Services Act 2007* section 46(1), then section 46(5) to (8) of that Act applies as if the child care record had been produced in response to a requirement referred to in section 46(2) of that Act; or (b) protected information as defined in the *Education and Care Services National Law (Western Australia)* section 273(3), then section 46(5) to (8) of the *Child Care Services Act 2007* applies as if the protected information — (i) was a child care record; and (ii) had been produced in response to a requirement referred to section 46(2) of that Act. (5) The protection provisions do not affect the operation of section 124F or 240 of the *Children and Community Services Act 2004*. [Section 19L inserted: No. 46 of 2004 s. 10; amended: No. 19 of 2007 s. 69; No. 26 of 2008 s. 12; No. 11 of 2012 s. 33; No. 6 of 2017 s. 9(2).] ##### 19M. Regulations as to disclosure of protected communications The Governor may make regulations as to — (a) the forms to be used for an application for leave and the supporting affidavit; and (b) the manner in which a protected communication is to be described in an application for leave or the supporting affidavit; and (c) other matters to be included in an application for leave or the supporting affidavit; and (d) the procedure relating to an application for leave; and (e) any other matter that is necessary or convenient to be prescribed for the purposes of the protection provisions. [Section 19M inserted: No. 46 of 2004 s. 10.] *Protection of confidential communications given in professional confidential relationships* [Heading inserted: No. 31 of 2012 s. 5.] ##### 20A. Terms used (1) In this section and in sections 20B to 20F — confidant means a person to whom a communication is made in confidence and includes a journalist as defined in section 20G; harm includes actual physical bodily harm, financial loss, stress or shock, damage to reputation or emotional or psychological harm, such as shame, humiliation and fear; protected confidence means a communication made by a person in confidence to another person (the confidant) — (a) in the course of a relationship in which the confidant was acting in a professional capacity; and (b) when the confidant was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law or can be inferred from the nature of the relationship between the person and the confidant; protected confider, in relation to a protected confidence, means the person who made the protected confidence; protected identity information means information about, or enabling a person to ascertain, the identity of the person who made a protected confidence; protection provisions (PCR) means this section and sections 20C to 20F. (2) For the purposes of the protection provisions (PCR), a communication may be made in confidence even if it is made in the presence of a third party if the third party’s presence is necessary to facilitate communication. [Section 20A inserted: No. 31 of 2012 s. 5.] ##### 20B. Application of protection provisions (PCR) (1) The protection provisions (PCR) do not apply in relation to a proceeding the hearing of which began before the commencement of those provisions. (2) The protection provisions (PCR) apply in relation to a protected confidence whether made before or after the commencement of those provisions. (3) The protection provisions (PCR) do not apply in relation to matters that are the subject of the protection provisions as defined in section 19A(1). (4) The protection provisions (PCR) do not affect the law relating to legal professional privilege. (5) The protection provisions (PCR) do not affect the law relating to evidence of a confession made by a person to a member of the clergy in the member’s professional capacity according to the ritual of the church or religious denomination concerned. (6) A court may give a direction under the protection provisions (PCR) in respect of a protected confidence or protected identity information whether or not the protected confidence or protected identity information is privileged or protected under another provision of this Act or would be so privileged or protected except for a limitation or restriction imposed by that provision. (7) The protection provisions (PCR) are not intended to exclude or limit the operation of section 5 or the power of a court under any other law of the State to take any action if it is in the interests of justice to do so. [Section 20B inserted: No. 31 of 2012 s. 5.] ##### 20C. Exclusion of evidence of protected confidences (1) A court may direct that evidence not be adduced in a proceeding if the court finds that adducing it would disclose — (a) a protected confidence; or (b) the contents of a document recording a protected confidence; or (c) protected identity information. (2) A court may give such a direction — (a) on its own initiative; or (b) on the application of the protected confider or confidant concerned, whether or not either is a party. (3) A court must give such a direction if it is satisfied that — (a) it is likely that harm would or might be caused, whether directly or indirectly, to the protected confider if the evidence is adduced; and (b) the nature, extent and likelihood of the harm outweigh the desirability of the evidence being given. (4) Without limiting the matters that a court may have regard to for the purposes of this section, it must have regard to the following matters — (a) the probative value of the evidence in the proceeding; (b) the importance of the evidence in the proceeding; (c) the nature and gravity of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding; (d) the availability of any other evidence concerning the matters to which the protected confidence or protected identity information relates; (e) the likely effect of adducing evidence of the protected confidence or protected identity information, including the likelihood of harm, and the nature and extent of harm that would be caused to the protected confider; (f) the means, including any ancillary orders that may be made under section 20F, available to the court to limit the harm or extent of the harm that is likely to be caused if evidence of the protected confidence or the protected identity information is disclosed; (g) the likely effect of the evidence in relation to — (i) a prosecution that has commenced but has not been finalised; or (ii) an investigation, of which the court is aware, into whether or not an offence has been committed; (h) whether the substance of the protected confidence or the protected identity information has already been disclosed by the protected confider or any other person; (i) the public interest in preserving the confidentiality of protected confidences; (j) the public interest in preserving the confidentiality of protected identity information. (5) A court must not give a direction under this section in a proceeding for defamation concerning the publication of alleged defamatory matter containing or relying on a protected confidence unless the court is first satisfied that the content of the protected confidence is true, and if the court is so satisfied, subsections (3) and (4) apply. (6) A court must state its reasons for giving or refusing to give a direction under this section. [Section 20C inserted: No. 31 of 2012 s. 5.] ##### 20D. Loss of professional confidential relationship protection: consent The protection provisions (PCR) do not prevent the giving or adducing of evidence with the consent of the protected confider concerned. [Section 20D inserted: No. 31 of 2012 s. 5.] ##### 20E. Loss of professional confidential relationship protection: misconduct misconduct, in relation to a person (the confider) who makes a communication in confidence to another person, includes any of the following — (a) an offence committed by the confider; (b) an act or omission on the part of the confider that renders the confider liable to a civil penalty; (c) deceit, dishonesty, inappropriate partiality or a breach of trust on the part of the confider; (d) the confider acting corruptly, or corruptly failing to act, in any capacity; (e) the confider corruptly taking advantage of the confider’s position to obtain a benefit for the confider or another person or to cause a detriment to another person; (f) the confider engaging in conduct that adversely affects, or could adversely affect, directly or indirectly, the honest or impartial performance of the functions of any person in any capacity; (g) misuse, on the part of the confider, of information or material that the confider has acquired in any capacity, whether the misuse is to obtain a benefit for the confider or any other person or to cause a detriment to another person; (h) conduct providing reasonable grounds for the termination of the confider’s employment; (i) conduct providing reasonable grounds for disciplining the confider in relation to unsatisfactory professional conduct or professional misconduct, or the breach of a professional standard, in relation to the confider’s profession, whether or not the confider is a member of the body that prescribed the standard. (2) The protection provisions (PCR) do not prevent the adducing of evidence of a communication made or the contents of a document prepared in the furtherance of misconduct by a person who makes a communication in confidence to another person. (3) For the purposes of this section, if the misconduct is a fact in issue and there are reasonable grounds for believing that — (a) the misconduct occurred; and (b) a communication was made or document prepared in furtherance of the misconduct, the court may find that the communication was so made or document so prepared. [Section 20E inserted: No. 31 of 2012 s. 5.] ##### 20F. Ancillary orders Without limiting any action the court may take to limit the possible harm, or extent of the harm, likely to be caused by the disclosure of evidence of a protected confidence or protected identity information, the court may — (a) order that all or part of the evidence be heard in camera; and (b) make such orders relating to the suppression of publication of all or part of the evidence given before the court as, in its opinion, are necessary to protect the safety and welfare of the protected confider and are in the interests of justice. [Section 20F inserted: No. 31 of 2012 s. 5.] *Protection of identity of journalists’ informants* [Heading inserted: No. 31 of 2012 s. 5.] ##### 20G. Terms used In this section and in sections 20H to 20M — direction means a direction under section 20J(1); identifying evidence has the meaning given in section 20I; informant means a person who gives information to a journalist in the normal course of the journalist’s work in the expectation that the information may be published in a news medium; journalist means a person engaged in the profession or occupation of journalism in connection with the publication of information in a news medium; national security has the meaning that it has in the *National Security Information (Criminal and Civil Proceedings) Act 2004* (Commonwealth) section 7; news medium means a medium for the dissemination to the public or a section of the public of news and observations on news; person acting judicially does not include a member of a House of Parliament or a Committee of a House, or both Houses, of Parliament who, by law, has authority to hear, receive, and examine evidence; proceeding does not include a proceeding before either House of Parliament or a Committee of either House, or both Houses, of Parliament, in which evidence is or may be given; protection provisions (journalists) means this section and sections 20I to 20M. [Section 20G inserted: No. 31 of 2012 s. 5.] ##### 20H. Application of protection provisions (journalists) (1) The protection provisions (journalists) do not apply in relation to a proceeding the hearing of which began before the commencement of those provisions. (2) The protection provisions (journalists) apply in relation to information given by an informant whether given before or after the commencement of those provisions. (3) The protection provisions (journalists) apply to a person acting judicially in any proceeding even if the law by which the person has authority to hear, receive, and examine evidence provides that this Act does not apply to the proceeding. (4) The protection provisions (journalists) are not intended to exclude or limit the operation of section 5 or the power that a person acting judicially has under any other law of the State to take any action if it is in the interests of justice to do so. [Section 20H inserted: No. 31 of 2012 s. 5.] ##### 20I. Protection of identity of informants If a journalist has promised an informant not to disclose the informant’s identity, neither the journalist nor a person for whom the journalist was working at the time of the promise is compellable to give evidence that would disclose the identity of the informant or enable that identity to be ascertained (identifying evidence). [Section 20I inserted: No. 31 of 2012 s. 5.] ##### 20J. Direction to give identifying evidence (1) Despite section 20I, a person acting judicially may direct a person referred to in that section to give identifying evidence. (2) A person acting judicially may give a direction only if satisfied that, having regard to the issues to be determined in the proceeding, the public interest in the disclosure of the identity of the informant outweighs — (a) any likely adverse effect of the disclosure of the identity on the informant or any other person; and (b) the public interest in the communication of facts and opinions to the public by the news media and, accordingly also, in the ability of the news media to access sources of facts. (3) Without limiting the matters that a person acting judicially may have regard to for the purposes of this section, the person acting judicially must have regard to the following matters — (a) the probative value of the identifying evidence in the proceeding; (b) the importance of the identifying evidence in the proceeding; (c) the nature and gravity of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding; (d) the availability of any other evidence concerning the matters to which the identifying evidence relates; (e) the likely effect of the identifying evidence, including the likelihood of harm, and the nature and extent of harm that would be caused to the informant or any other person; (f) the means, including any ancillary orders that may be made under section 20M, available to the person acting judicially to limit the harm or extent of the harm that is likely to be caused if the identifying evidence is given; (g) the likely effect of the identifying evidence in relation to — (i) a prosecution that has commenced but has not been finalised; or (ii) an investigation, of which the person acting judicially is aware, into whether or not an offence has been committed; (h) whether the substance of the identifying evidence has already been disclosed by the informant or any other person; (i) the risk to national security or to the security of the State; (j) whether or not there was misconduct, as defined in section 20K(1), on the part of the informant or the journalist in relation to obtaining, using, giving or receiving information. (4) A person acting judicially must state the person’s reasons for giving or refusing to give a direction. [Section 20J inserted: No. 31 of 2012 s. 5.] ##### 20K. Effect of misconduct as to directions misconduct, in relation to an informant or a journalist, includes any of the following — (a) an offence committed by the informant or journalist; (b) an act or omission on the part of the informant or journalist that renders him or her liable to a civil penalty; (c) deceit, dishonesty, inappropriate partiality or a breach of trust on the part of the informant or journalist; (d) the informant or journalist acting corruptly, or corruptly failing to act, in any capacity; (e) the informant or journalist corruptly taking advantage of his or her position to obtain a benefit for himself, herself or another person or to cause a detriment to another person; (f) the informant or journalist engaging in conduct that adversely affects, or could adversely affect, directly or indirectly, the honest or impartial performance of the functions of any person in any capacity; (g) misuse, on the part of the informant or journalist, of information or material that he or she has acquired in any capacity, whether the misuse is to obtain a benefit for himself, herself or another person or to cause a detriment to another person; (h) conduct providing reasonable grounds for the termination of the informant or journalist’s employment; (i) conduct providing reasonable grounds for disciplining the informant or journalist in relation to unsatisfactory professional conduct or professional misconduct, or the breach of a professional standard, in relation to the informant or journalist’s profession, whether or not he or she is a member of the body that prescribed the standard. (2) A person acting judicially who finds that there was misconduct on the part of an informant or a journalist in relation to obtaining, using, giving or receiving information — (a) may, but is not bound to, give a direction; and (b) must have regard to the principles set out in subsection (3) when deciding whether or not to give a direction. (3) The principles mentioned in subsection (2)(b) are as follows — (a) that generally a direction should be given if — (i) the misconduct was the commission of an offence under *The Criminal Code* section 81 or a breach of a public sector standard, code of conduct or code of ethics, as those terms are defined in the *Public Sector Management Act 1994* section 3(1); and (ii) the offence or breach concerned the disclosure of information that was public interest information as defined in the *Public Interest Disclosure Act 2003* section 3(1); and (iii) the information could have been, but was not, disclosed in accordance with the *Public Interest Disclosure Act 2003*; (b) that generally a direction should be given if the information given to a journalist could have been provided, in a way that did not constitute misconduct, to another person to deal with the concern; (c) that generally a direction should be given if the information given to a journalist could have been obtained by the journalist under the *Freedom of Information Act 1992* or by other lawful means; (d) that generally a direction should be given if the misconduct involved a breach of privacy that was not warranted in the circumstances, having regard to the value to be attached to — (i) the privacy of information regarding private citizens generally; or (ii) the privacy of information regarding matters which may be commercial in confidence; or (iii) the principle of Cabinet confidentiality; or (iv) the principle of public interest immunity; (e) that generally a direction should be given if a communication made to a journalist, if published, would give rise to a risk to national security or to the security of the State; (f) that it is otherwise in the public interest to give or refuse to give a direction. (4) For the purposes of this section, if the misconduct is a fact in issue and there are reasonable grounds for believing that there was misconduct on the part of the informant or the journalist in relation to obtaining, using, giving or receiving information, the person acting judicially in the proceeding may so find. [Section 20K inserted: No. 31 of 2012 s. 5.] ##### 20L. Identifying informant with consent The protection provisions (journalists) do not prevent the giving or adducing of identifying evidence with the informant’s consent. [Section 20L inserted: No. 31 of 2012 s. 5.] ##### 20M. Ancillary orders Without limiting any action the person acting judicially may take to limit the possible harm, or extent of the harm, likely to be caused by identifying evidence, the person acting judicially may — (a) order that all or part of the evidence be heard in camera; and (b) make such orders relating to the suppression of publication of all or part of the evidence given before the person acting judicially as, in the opinion of the person acting judicially, are necessary to protect the informant’s safety and welfare and are in the interests of justice. [Section 20M inserted: No. 31 of 2012 s. 5.] *Impeaching credit of witnesses* ##### 20. How far a party may discredit his own witness A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character, but may contradict him by other evidence, if in the opinion of the judge he is hostile to the party producing him. ##### 21. Cross‑examination as to and proof of prior inconsistent statement Every witness under cross‑examination in any proceeding, civil or criminal, may be asked whether he has made any former statement relative to the subject‑matter of the proceeding, and inconsistent with his present testimony, the circumstances of the supposed statement being referred to sufficiently to designate the particular occasion, and if he does not distinctly admit that he made such statement, proof may be given that he did in fact make it. The same course may be taken with a witness upon his examination in chief or re‑examination, if the judge is of opinion that the witness is hostile to the party by whom he was called and permits the question. [Section 21 amended: No. 16 of 1913 s. 3.] ##### 22. Procedure for purposes of s. 21 A witness under cross‑examination, or a witness whom the judge, under the provisions of the last preceding section, has permitted to be examined by the party who called him as to previous statements inconsistent with his present testimony, may be questioned as to — (a) a previous statement made or supposed to have been made by him in writing or reduced into writing; or (b) evidence given or supposed to have been given by him before any justice, without such writing or the deposition of such witness being shown to him. But if it is intended to contradict him by such writing or deposition, his attention must, before such contradictory proof can be given, be called to those parts of the writing or deposition which are to be used for the purpose of so contradicting him. Provided that the judge may, at any time during the trial, require the writing or deposition to be produced for his inspection, and may thereupon make use of it for the purposes of the trial as he thinks fit. ##### 23. Cross‑examination as to and proof of previous conviction (1) A witness may be questioned as to whether he has been convicted of any indictable offence, and, upon being so questioned, if he either denies or does not admit the fact, or refuses to answer, the cross‑examining party may prove such conviction. (2) A certificate containing the substance and effect only (omitting formal parts) of the conviction for such offence, purporting to be signed by the clerk of the court or other officer having the custody of the records of the court where the offender was convicted, shall, upon proof of the identity of the person, be sufficient evidence of such conviction without proof of the signature or official character of the person appearing to have signed the same. (3) A fee of 50 cents, and no more, shall be payable for such certificate. [Section 23 amended: No. 113 of 1965 s. 4.] *Protection in respect of certain questions* [Heading inserted: No. 47 of 1990 s. 7.] ##### 24. Questions tending to criminate Except as hereinbefore provided, nothing in this Act shall render any person compellable to answer any question tending to criminate himself. ##### 25. Cross‑examination as to credit (1) If any question put to a witness upon cross‑examination relates to a matter not relevant to the proceeding, except in so far as it affects the credit of the witness by injuring his character, it shall be the duty of the court to decide whether or not the witness shall be compelled to answer it, and the court may, if it thinks fit, inform the witness that he is not obliged to answer it. (2) In exercising this discretion, the court shall have regard to the following considerations — (a) such questions are proper if they are of such a nature that the truth of the imputation conveyed by them would seriously affect the opinion of the court as to the credibility of the witness on the matter to which he testifies; (b) such questions are improper if the imputation they convey relates to matters so remote in time, or of such character, that the truth of the imputation would not affect, or would affect in a slight degree only, the opinion of the court as to the credibility of the witness on the matter to which he testifies; (c) such questions are improper if there is a great disproportion between the importance of the imputation made against the witness’s character and the importance of his evidence. (3) Nothing herein shall be deemed to make any witness compellable to give evidence upon any matter he is now by law privileged from disclosing. ##### 25A. Cross‑examination by accused in person (1) In any criminal proceeding where an accused person who is not represented by counsel wishes to cross‑examine a witness, the court, having regard to the nature of the charge, the wishes of the witness, and the availability of any necessary facilities or equipment, may — (a) order that during the cross‑examination the accused person and the witness are to be in separate rooms and that either — (i) the witness is to be in a room outside the courtroom that is connected to the courtroom by a video link as defined in section 120; or (ii) the accused person is to be held in a room outside the courtroom that is connected to the courtroom by a video link as defined in section 120; (b) if it is not possible to make an order under paragraph (a), an order that during the cross‑examination the accused person and the witness are to be separated by a screen, one‑way glass, or other device, that — (i) prevents the witness from seeing the accused person; and (ii) allows the accused person, the judge and any jury to see the witness; (c) whether or not an order is made under paragraph (a) or (b), make an order that forbids the accused person from putting a question to the witness directly and requires the question, having been first stated by the accused person to the judge or a person approved by the judge, to be repeated accurately to the witness by the judge or approved person. (2) An order made under subsection (1)(a)(ii) may be made despite section 88 of the *Criminal Procedure Act 2004*. (3) An order made under subsection (1) may be varied or revoked at any time. (4) If an order is made under subsection (1) in proceedings before a jury, the judge is to instruct the jury that the procedure used for the cross‑examination is a routine practice of the court and that they should not draw any inference as to the accused person’s guilt from the use of the procedure. (5) This section is in addition to and does not limit the operation of sections 106A to 106T, and does not prevent orders from being made under both subsection (1) and one or more of those sections. [Section 25A inserted: No. 59 of 2004 s. 87; amended: No. 84 of 2004 s. 41.] ##### 26. Improper questions (1) The court may disallow a question put to a witness in cross‑examination, or inform the witness that it need not be answered, if the question is — (a) misleading; or (b) unduly annoying, harassing, intimidating, offensive, oppressive or repetitive. (2) Subsection (1) extends to a question that is otherwise proper if the putting of the question is unduly annoying, harassing, intimidating, offensive or oppressive. (3) Without limiting the matters that the court may take into account for the purposes of subsection (1), it is to take into account — (a) any relevant condition or characteristic of the witness, including age, language, personality and education; and (b) any mental, intellectual or physical disability to which the witness is or appears to be subject. [Section 26 inserted: No. 46 of 2004 s. 11.] ##### 27. Prohibited questions not to be published (1) It shall not be lawful for any person to print or publish any question or inquiry which the court — (a) has, under the provisions of the last preceding section, disallowed and has ordered shall not be published; or (b) has informed the witness he is not obliged to answer and has ordered shall not be published. (2) Every person who prints or publishes any question in breach of this section commits a contempt of court, and shall be liable to punishment for such contempt as if the contempt had been committed in face of the court against which the contempt is committed and on the like proceedings as in such, last‑mentioned case. [Section 27 amended: No. 46 of 2004 s. 12.] *Manner of giving evidence* [Heading inserted: No. 71 of 2000 s. 6.] ##### 27A. Form of evidence (1) Evidence may be given in the form of a chart, summary or other explanatory document if it appears to the court that the document would be likely to aid comprehension of other evidence that has been given or is to be given. (2) Nothing in this section affects the operation of section 27B. [Section 27A inserted: No. 71 of 2000 s. 6.] ##### 27B. Manner of giving voluminous or complex evidence (1) If a court is satisfied that particular evidence that a party to a proceeding proposes to adduce is so voluminous or complex that it would be difficult to assess or comprehend it if it were adduced in narrative form, the court may direct the party to adduce the evidence in another form, including in the form of a chart, summary or other explanatory document. (2) The direction may also — (a) specify the form of the evidence; (b) specify the witness who is to give the evidence; (c) specify how any document is to be prepared; (d) contain directions to ensure that each other party is served with copies of the evidence in the form in which it is to be given and is given sufficient time to examine it; (e) contain directions as to the extent (if any) to which the voluminous or complex evidence is to be adduced by the party. (3) The opinion rule does not apply to evidence adduced in accordance with a direction under this section. (4) In subsection (3) — opinion rule means the common law rule that evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed. [Section 27B inserted: No. 71 of 2000 s. 6.] *General rules of evidence* [**28.** Deleted: No. 84 of 2004 s. 41.] ##### 29. Intention to defraud, proof of On the trial of a person charged with any offence of which an intent to injure or deceive or defraud, or an intent to enable another person to deceive or defraud, is an element, it shall not be necessary to prove an intent to injure or deceive or defraud any particular person or an intent to enable any particular person to deceive or defraud any particular person. ##### 30. Proof by attesting witness unnecessary in certain cases It shall not be necessary to prove, by the attesting witness, any instrument to the validity of which attestation is not requisite, and such instrument may be proved as if there had been no attesting witness thereto. ##### 31. Comparison of disputed hand‑writing Comparison of a disputed hand‑writing with any writing proved to the satisfaction of the judge to be genuine may be made by witnesses, and such writings and the testimony of witnesses respecting the same may be submitted to the court and jury as evidence of the genuineness or otherwise of the writing in dispute. ##### 31A. Propensity and relationship evidence propensity evidence means — (a) similar fact evidence or other evidence of the conduct of the accused person; or (b) evidence of the character or reputation of the accused person or of a tendency that the accused person has or had; relationship evidence means evidence of the attitude or conduct of the accused person towards another person, or a class of persons, over a period of time. (2) Propensity evidence or relationship evidence is admissible in proceedings for an offence if the court considers — (a) that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and (b) that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair‑minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial. (3) In considering the probative value of evidence for the purposes of subsection (2) it is not open to the court to have regard to the possibility that the evidence may be the result of collusion, concoction or suggestion. [Section 31A inserted: No. 46 of 2004 s. 13.] ##### 32. Admissions by accused persons in criminal cases An accused person, either personally or by his counsel or solicitor, in his presence, may admit on his trial any fact alleged or sought to be proved against him, and such admission shall be sufficient proof of the fact without other evidence. ##### 32A. Derogation of privilege in civil proceedings (1) This section applies only in respect of — (a) civil proceedings in or before a court; and (b) arbitrations; and (c) civil proceedings in or before any tribunal that is not a court. (2) In this section — privilege means privilege that would, apart from this section and the rules of court mentioned in subsection (3), attach to documents prepared for the purpose of pending or contemplated proceedings or in connection with the obtaining or giving of legal advice; and rules of court, without affecting the operation of section 40 of the *Interpretation Act 1918* 2, includes rules, regulations, and by‑laws prescribing the practice and procedure for and in relation to proceedings in respect of which this section applies. (3) There shall be a derogation of privilege to the extent that rules of court applicable to expert evidence so provides. (4) Without limiting any other power to make rules of court in respect of any tribunal of the kind that is referred to in subsection (1)(c), such rules of court may make provision for prescribing matters relating to expert evidence, including the disclosure, by the furnishing of copies of reports or otherwise, of the nature and substance of the expert evidence to be given, and including the exclusion of expert evidence in case of non‑compliance with the rules relating to expert evidence or with any order for the disclosure of the nature and substance of expert evidence, and in relation thereto — (a) for the imposition of differing requirements depending on different classes of cases, different classes of matters, or other different circumstances; and (b) for the conferring of a discretionary authority. [Section 32A inserted: No. 111 of 1976 s. 3.] *Rules in particular cases* [**33, 34.** Deleted: No. 70 of 1988 s. 36.] ##### 35. Perjury charge, corroboration not required (1) Notwithstanding any rule of law to the contrary, a person may be convicted of committing perjury or of counselling or procuring the commission of perjury upon the uncorroborated evidence of one witness. [(2) deleted] [Section 35 inserted: No. 70 of 1988 s. 37; amended: No. 36 of 1992 s. 4.] ##### 36. Perjury charge, proof of trial etc. On the trial of a person charged with an offence of which the giving of false testimony by any person at the trial of a person charged with an offence is an element, a certificate setting out the substance and effect only, without the formal parts, of the indictment or prosecution notice, and the proceedings at the trial, and purporting to be signed by the officer having the custody of the records of the court where the indictment or prosecution notice was tried, or by his deputy, shall be sufficient evidence of the trial, without proof of the signature or official character of the person who appears to have signed the certificate. [Section 36 amended: No. 84 of 2004 s. 80.] ##### 36A. Terms used (1) In this section and in sections 36B, 36BA, 36BC, 36BD, 36BE and 36C — accused in relation to a hearing or trial, means any accused at the hearing or trial whether or not that accused is charged with a sexual offence; complainant in relation to proceedings for a sexual offence means a person upon or in respect of whom it is alleged that a sexual offence was committed, attempted or proposed; repealed Code section means a repealed section of *The Criminal Code* that, before it was repealed, enacted an offence constituted by acts or omissions that are substantially the same as the acts or omissions that constitute an offence under a section or Chapter of *The Criminal Code* that is mentioned in paragraph (a) or (b) of the definition of ***sexual offence*** in this subsection; sexual offence means an offence — (a) under section 186 or 191(1)(a) of *The Criminal Code* or section 7, 15, or 18 of the *Prostitution Act 2000*; or (b) under Chapter XXXI of *The Criminal Code*; or (ba) under a repealed Code section; or (c) of attempting to commit any of the offences under paragraph (a), (b) or (ba); or (d) of conspiring to commit any of the offences under paragraph (a), (b) or (ba). (2) In this section and in sections 36B, 36BA, 36BC and 36BE, proceedings for a sexual offence means proceedings in which a person stands charged with a sexual offence whether the person stands charged with that offence alone or together with any other offence (as an additional or alternative count) and whether or not the person is liable on the charge to be found guilty of any other offence. [Section 36A inserted: No. 74 of 1985 s. 15; amended: No. 70 of 1988 s. 38; No. 14 of 1992 s. 13; No. 17 of 2000 s. 64; No. 71 of 2000 s. 7; No. 70 of 2004 s. 19(3); No. 84 of 2004 s. 85(2); No. 2 of 2008 s. 42(2) and (3).] ##### 36B. Sexual reputation of complainant, evidence of In proceedings for a sexual offence, evidence relating to the sexual reputation of the complainant shall not be adduced or elicited by or on behalf of an accused. [Section 36B inserted: No. 74 of 1985 s. 15; amended: No. 14 of 1992 s. 13; No. 84 of 2004 s. 82.] ##### 36BA. Sexual disposition of complainant, evidence of In proceedings for a sexual offence, evidence relating to the disposition of the complainant in sexual matters shall not be adduced or elicited by or on behalf of an accused. [Section 36BA inserted: No. 74 of 1985 s. 15; amended: No. 14 of 1992 s. 13; No. 84 of 2004 s. 82.] ##### 36BC. Sexual experience of complainant, evidence of (1) In proceedings for a sexual offence, evidence relating to the sexual experiences of the complainant, being sexual experiences of any kind, at any time and with any person, not being part of the *res gestae* of the proceedings, shall not be adduced or elicited by or on behalf of an accused unless leave of the court has first been obtained on application made in the absence of the jury (if any). (2) The court shall not grant leave under subsection (1) unless satisfied that — (a) what is sought to be adduced or elicited has substantial relevance to the facts in issue; and (b) the probative value of the evidence that is sought to be adduced or elicited outweighs any distress, humiliation or embarrassment which the complainant might suffer as a result of its admission. [Section 36BC inserted: No. 74 of 1985 s. 15; amended: No. 14 of 1992 s. 13; No. 84 of 2004 s. 82.] ##### 36BD. Lack of complaint, jury warning about Where on the trial of a person for a sexual offence or an offence under Chapter XXII of *The Criminal Code* (as enacted at any time) evidence is given or a question is asked of a witness which tends to suggest an absence of complaint in respect of the commission of the alleged offence by the complainant or to suggest delay by the complainant in making any such complaint, the judge shall — (a) give a warning to the jury to the effect that absence of complaint or delay in complaining does not necessarily indicate that the allegation that the offence was committed is false; and (b) inform the jury that there may be good reasons why a victim of an offence such as that alleged may hesitate in making or may refrain from making a complaint of that offence. [Section 36BD inserted: No. 74 of 1985 s. 15; amended: No. 14 of 1992 s. 13; No. 71 of 2000 s. 8.] ##### 36BE. Expert evidence of child behaviour (1) This section applies to any proceedings for a sexual offence in respect of a complainant who was under the age of 18 years at the time of the alleged offence. (2) Evidence by an expert on the subject of child behaviour about any or all of the following — (a) child development and behaviour generally; (b) child development and behaviour in cases where children have been the victims of sexual offences, that is relevant to the proceedings is admissible in them notwithstanding that the evidence — (c) relates to a fact in issue or to an ultimate issue in the proceedings; or (d) is a matter of common knowledge; or (e) is relevant only to the credibility of the complainant. (3) If evidence described in subsection (2) is admitted in a trial by jury, this section does not affect any duty of the trial judge to warn the jury about any matter relating to the complainant’s evidence; but any such warning must be consistent with that evidence. [Section 36BE inserted: No. 2 of 2008 s. 42(1).] ##### 36C. Names of complainants not to be published (1) Subject to subsections (5) and (6) after a person is accused of a sexual offence no matter likely to lead members of the public to identify the complainant and, in the case of a complainant who is attending a school, no matter likely to lead members of the public to identify the school which the complainant attends, in relation to that accusation shall be published in a written publication available to the public or be broadcast, except by leave of the court which has or may have jurisdiction to try the person accused for that offence. (2) If any matter is published or broadcast in contravention of subsection (1), the following persons, namely — (a) in the case of a publication in a newspaper or periodical, any proprietor, any editor and any publisher of the newspaper or periodical; and (b) in the case of any other publication, the person who publishes it; and (c) in the case of a broadcast, any body corporate which transmits or provides the programme in which the broadcast is made and any person having functions in relation to the programme corresponding to those of an editor of a newspaper, shall be guilty of an offence and liable on summary conviction to a fine of, in the case of an individual, $5 000 or, in the case of a body corporate, $25 000. (3) For the purposes of this section a person is accused of a sexual offence if — (a) the person is charged in a prosecution notice or an indictment with committing a sexual offence; or (b) the person appears before a court charged with a sexual offence; or (c) a court before which the person is appearing commits him for trial on a new charge alleging a sexual offence, and references in this section to an accusation alleging a sexual offence shall be construed accordingly. (4) In this section — broadcast means a broadcast by wireless telegraphy of a sound or visual images intended for general reception, and cognate expressions shall be construed accordingly; complainant, in relation to a person accused of a sexual offence or an accusation alleging a sexual offence, means the person against whom the offence is alleged to have been committed; and written publication includes a film, a sound track and any other record in permanent form but does not include an indictment or other document prepared for use in particular legal proceedings. (5) Nothing in this section prohibits the publication or broadcasting, in consequence of an accusation alleging a sexual offence, of matter consisting only of a report of legal proceedings other than — (a) proceedings at, or intended to lead to, or on an appeal arising out of, a trial at which the accused is charged with that offence; or (b) proceedings under the *High Risk Serious Offenders Act 2020* relating to the accused. (6A) The giving of leave under this section does not affect the operation of subsection (1) at any time before the leave is given. (6) Nothing in this section prohibits the publication or broadcasting of matter identifying a complainant if — (a) prior to the publication or broadcasting that complainant authorised in writing the publication or broadcasting of the matter; and (b) at the time the complainant authorised the publication or broadcasting, he or she was at least 18 years old and was not a person who, because of mental impairment (as defined in *The Criminal Code*), is incapable of making reasonable judgments in respect of the publication or broadcasting of such matters, proof of which lies on the publisher or broadcaster. [Section 36C inserted: No. 145 of 1976 s. 6; amended: No 74 of 1985 s. 16; No. 14 of 1992 s. 13; No. 71 of 2000 s. 9; No. 59 of 2004 s. 89; No. 84 of 2004 s. 41 and 80; No. 17 of 2016 s. 48; No. 29 of 2020 s. 121.] ##### 37. Terms used In sections 38 to 39G — family member has the meaning given in the *Restraining Orders Act 1997* section 4(3); family violence has the meaning given in the *Restraining Orders Act 1997* section 5A; help‑seeking behaviour means any action undertaken by a victim of family violence to address, or attempt to address, any aspect of the family violence including (but not limited to) reporting the family violence to the police, obtaining a restraining order, finding accommodation in a refuge, separating from an abusive person, or seeking counselling or external support; safety option, in relation to an accused person who is (or may be) a victim of family violence, means an act that may have stopped the violence, other than an act which constitutes (or allegedly constitutes) an offence with which the person is charged. [Section 37 inserted: No. 30 of 2020 s. 94.] ##### 38. What may constitute evidence of family violence (1) For the purposes of sections 39 to 39G, evidence of family violence, in relation to a person, includes (but is not limited to) evidence of any of the following — (a) the history of the relationship between the person and a family member, including violence by the family member towards the person, or by the person towards the family member, or by the family member of the person in relation to any other family member; (b) the cumulative effect of family violence, including the psychological effect, on the person or a family member affected by that violence; (c) social, cultural or economic factors that impact on the person or a family member who has been affected by family violence; (d) responses by family, community or agencies to family violence, including further violence that may be used by a family member to prevent, or in retaliation to, any help‑seeking behaviour or use of safety options by the person; (e) ways in which social, cultural, economic or personal factors have affected any help‑seeking behaviour undertaken by the person, or the safety options realistically available to the person, in response to family violence; (f) ways in which violence by the family member towards the person, or the lack of safety options, were exacerbated by inequities experienced by the person, including inequities associated with (but not limited to) race, poverty, gender, disability or age; (g) the general nature and dynamics of relationships affected by family violence, including the possible consequences of separation from a person who commits family violence; (h) the psychological effect of family violence on people who are or have been in a relationship affected by family violence; (i) social or economic factors that impact on people who are or have been in a relationship affected by family violence. (2) Subsection (1) does not limit the operation of the *Restraining Orders Act 1997* section 5A(2). [Section 38 inserted: No. 30 of 2020 s. 94.] ##### 39. Expert evidence of family violence (1) This section applies to any criminal proceedings where evidence of family violence is relevant to a fact in issue. (2) The evidence of an expert on the subject of family violence is admissible in relation to any matter that may constitute evidence of family violence. (3) Evidence given by the expert may include — (a) evidence about the nature and effects of family violence on any person; and (b) evidence about the effect of family violence on a particular person who has been the subject of family violence. (4) For the purposes of this section, an expert on the subject of family violence includes a person who can demonstrate specialised knowledge, gained by training, study or experience, of any matter that may constitute evidence of family violence. [Section 39 inserted: No. 30 of 2020 s. 94.] ##### 39A. Evidence of family violence — general provision In proceedings for an offence, evidence of family violence is admissible if family violence is relevant to a fact in issue. [Section 39A inserted: No. 30 of 2020 s. 94.] ##### 39B. Evidence of family violence — self‑defence Without limiting any other evidence that may be adduced, in criminal proceedings in which self‑defence in response to family violence is an issue, evidence of family violence may be relevant to determining whether — (a) a person has a belief that an act was necessary to defend the person or another person from a harmful act, including a harmful act that was not imminent; or (b) a person’s act was a reasonable response by the person in the circumstances as the person believed them to be; or (c) there are reasonable grounds for a particular belief by a person. [Section 39B inserted: No. 30 of 2020 s. 94.] ##### 39C. Request for direction on family violence — self‑defence (1) In criminal proceedings in which self‑defence in response to family violence is an issue, defence counsel (or, if the accused is unrepresented, the accused) may request at any time that the trial judge direct the jury on family violence in accordance with section 39E and all or specified parts of section 39F. (2) The trial judge must give the jury a requested direction on family violence, including all or specified parts of section 39F if so requested, unless there are good reasons for not doing so. (3) If a direction on family violence is not requested, the trial judge may give the direction if the trial judge considers that it is in the interests of justice to do so. (4) The trial judge — (a) must give the direction as soon as practicable after the request is made; and (b) may give the direction before any evidence is adduced in the trial. (5) The trial judge may repeat a direction at any time in the trial. (6) This section, and sections 39E and 39F, do not limit what the trial judge may include in any other direction to the jury, including in relation to evidence given by an expert witness. [Section 39C inserted: No. 30 of 2020 s. 94.] ##### 39D. Request for direction on family violence — general provision (1) In criminal proceedings in which family violence is an issue, prosecution or defence counsel (or, if the accused is unrepresented, the accused) may request at any time that the trial judge direct the jury on family violence in accordance with all or specified parts of section 39F. (2) The trial judge must give the jury a requested direction on family violence, including all or specified parts of section 39F if so requested, unless there are good reasons for not doing so. (3) If a direction on family violence is not requested, the trial judge may give the direction if the trial judge considers that it is in the interests of justice to do so. (4) The trial judge — (a) must give the direction as soon as practicable after the request is made; and (b) may give the direction before any evidence is adduced in the trial. (5) The trial judge may repeat a direction at any time in the trial. (6) This section, and section 39F, do not limit what the trial judge may include in any other direction to the jury, including in relation to evidence given by an expert witness. [Section 39D inserted: No. 30 of 2020 s. 94.] ##### 39E. Content of direction on family violence In giving a direction under section 39C, the trial judge must inform the jury that — (a) self‑defence is, or is likely to be, an issue in the trial; and (b) as a matter of law, evidence of family violence may be relevant to determining whether the accused acted in self‑defence; and (c) evidence in the trial is likely to include evidence of family violence committed by the victim against the accused or another person whom the accused was defending. [Section 39E inserted: No. 30 of 2020 s. 94.] ##### 39F. Additional matters for direction on family violence (1) In giving a direction requested under section 39C or 39D, the trial judge may include any of the following matters in the direction — (a) that family violence — (i) is not limited to physical abuse and may, for example, include sexual abuse, psychological abuse or financial abuse; (ii) may amount to violence against a person even though it is immediately directed at another person; (iii) may consist of a single act; (iv) may consist of separate acts that form part of a pattern of behaviour which can amount to abuse even though some or all of those acts may, when viewed in isolation, appear to be minor or trivial; (b) if relevant, that experience shows that — (i) people may react differently to family violence and there is no typical, proper or normal response to family violence; (ii) it is not uncommon for a person who has been subjected to family violence to stay with an abusive partner after the onset of family violence, or to leave and then return to the partner; (iii) it is not uncommon for a person who has been subjected to family violence not to report family violence to police or seek assistance to stop family violence; (iv) decisions made by a person subjected to family violence about how to address, respond to or avoid family violence may be influenced by a variety of factors; (v) it is not uncommon for a decision to leave an abusive partner, or to seek assistance, to increase apprehension about, or the actual risk of, harm; (c) in the case of self‑defence, that, as a matter of law, evidence that the accused assaulted the victim on a previous occasion does not mean that the accused could not have been acting in self‑defence in relation to the offence charged. (2) In making a direction under subsection (1), the trial judge may also indicate that behaviour, or patterns of behaviour, that may constitute family violence may include (but are not limited to) — (a) placing or keeping a person in a dependent or subordinate relationship; (b) isolating a person from family, friends or other sources of support; (c) controlling, regulating or monitoring a person’s day‑to‑day activities; (d) depriving or restricting a person’s freedom of movement or action; (e) restricting a person’s ability to resist violence; (f) frightening, humiliating, degrading or punishing a person, including punishing a person for resisting violence; (g) compelling a person to engage in unlawful or harmful conduct. (3) If the trial judge makes a direction that relates to subsection (1)(b)(iv), the trial judge may also indicate that decisions made by a person subjected to family violence about how to address, respond to or avoid family violence may be influenced by such things as the following — (a) the family violence itself; (b) social, cultural, economic or personal factors, or inequities experienced by the person, including inequities associated with (but not limited to) race, poverty, gender, disability or age; (c) responses by family, community or agencies to the family violence or to any help‑seeking behaviour or use of safety options by the person; (d) the provision of, or failure in the provision of, safety options that might realistically have provided ongoing safety to the person, and the person’s perceptions of how effective those safety options might have been to prevent further harm; (e) further violence, or the threat of further violence, used by a family member to prevent, or in retaliation to, any help‑seeking behaviour or use of safety options by the person. [Section 39F inserted: No. 30 of 2020 s. 94.] ##### 39G. Application of s. 39E and 39F to criminal proceedings without juries If a court is sitting without a jury, the court’s reasoning with respect to any matter in relation to which sections 39E and 39F make provision must, to such extent as the court thinks fit, be consistent with how a jury would be directed in accordance with those sections in the particular case. [Section 39G inserted: No. 30 of 2020 s. 94.] ##### 40. Customs prosecutions, effect of averments in In every Customs prosecution the averment of the prosecution or plaintiff contained in the information, declaration, or claim shall be deemed to be proved in the absence of proof to the contrary, but so that — (a) when an intent to defraud the revenue is charged, the averment shall not be deemed sufficient to prove the intent; and (b) in all proceedings for an indictable offence, or for an offence directly punishable by imprisonment, the guilt of the accused must be established by evidence. [Section 40 amended: No. 84 of 2004 s. 82.] ##### 41. Customs prosecutions, proof of appointment of officers On the trial of a person charged with any offence of which the fact that some person was at some particular time an officer of Customs, or was at some particular time employed for the prevention of smuggling, is an element, the averment in the indictment or prosecution notice that any person therein mentioned was an officer of Customs, or was employed for the prevention of smuggling at any time therein stated, shall be sufficient evidence of the fact until the contrary is shown. [Section 41 amended: No. 84 of 2004 s. 80.] ##### 41A. Stealing and receiving charges, evidence of ownership of property stolen from ships, wharves etc. (1) On the prosecution of any person for the stealing of any property in or from any vessel, barge, or boat, or from any dock, wharf, or quay, or from any store or shed used in connection with or adjoining any such dock, wharf, or quay, or for receiving any such property, knowing it to have been so stolen, or for having on his person or in any place or conveying in any manner anything which may be reasonably suspected of being so stolen — (a) evidence may be given of any writing, printing, or marks upon the said property without producing the original writing, printing or marks, or requiring the production thereof by notice or otherwise; and (b) any apparently genuine document purporting to be the bill of lading, manifest, shipping receipt, delivery order, specification, schedule, packing list, or invoice relating to the said property, or to property which from the description thereof in the document or from the writing, printing, or marks thereon, or on any package containing the same as detailed in the document, coupled with any other relevant circumstances, may be reasonably assumed to be the same as the property the subject of the prosecution, shall be admissible in evidence on production and without further proof, and shall be prima facie evidence of the particulars and facts contained therein and that the ownership of the property, the subject matter of the prosecution, is in the consignee referred to in the document or his assignee. (2) In deciding whether any property described as aforesaid may be reasonably assumed to be the same as the property the subject of the prosecution, regard shall be had to the source from which the document was produced, and the circumstances of its receipt or custody by the person producing it, or from whom it was obtained for the purposes of the prosecution. (3) It shall be no objection to the admissibility in evidence of any such document as aforesaid that the statement of the place in or from which the stealing took place forms no part of the charge, if the evidence adduced on the prosecution indicates that the stealing did in fact take place in or from a place such as is hereinbefore mentioned. [Section 41A inserted: No. 19 of 1921 s. 2.] ##### 42. Evidence on trial for defamation On the trial of a person charged with the unlawful publication of defamatory matter which is contained in a periodical, after evidence sufficient in the opinion of the court has been given of the publication by the accused person of the number or part of the periodical containing the matter complained of, other writings or prints purporting to be other numbers or parts of the same periodical previously or subsequently published, and containing a printed statement that they were published by or for the accused person, shall be admissible in evidence on either side, without further proof of publication of them. The term periodical includes any newspaper, review, magazine, or other writing or print, published periodically. [**43.** Deleted: No. 10 of 1960 s. 2.] ##### 44. Stealing charges, proof of receipt of money by accused, proof of general deficiency (1) On the trial of a person charged with stealing money, an entry in any book of account shown to be kept by the accused person, or kept in, under, or subject to his charge or supervision, purporting to be an entry of the receipt of any money, shall be evidence that the money so purporting to have been received was so received by him. (2) On the trial of a person charged with any such offence, it shall not be necessary to prove the stealing by the accused person of any specific sum of money, if, on examination of the books of account or entries kept or made by him, or kept or made in, under, or subject to his charge or supervision, or by any other evidence, there is proof of a general deficiency and if the jury are satisfied that the accused person stole the deficient money or any part of it. ##### 45. Seals and stamps for the revenue or post office, proof of On the trial of a person charged with any offence relating to any seal or stamp used for the purposes of the public revenue, or of the post office in any part of Her Majesty’s dominions, or in any foreign State, a despatch from one of Her Majesty’s principal Secretaries of State, transmitting to the Governor any stamp, mark, or impression and stating it to be a genuine stamp, mark, or impression, of a die, plate, or other instrument, provided, made or used by or under the direction of the proper authority of the country in question, for the purpose of expressing or denoting any stamp duty or postal charge, shall be admissible as evidence of the facts stated in the despatch; and the stamp, mark, or impression, so transmitted may be used by the court and jury and by witnesses for the purposes of comparison. ##### 46. Receiving charges, proof of knowledge that goods were stolen Where proceedings are taken against any person for having received anything which has been obtained by means of any act constituting an indictable offence, knowing the same to have been so obtained, evidence may be given at any stage of the proceedings that there was found in the possession of such person any other thing obtained by such means within the preceding period of 12 months, and such evidence may be taken into consideration for the purpose of proving that such person knew the property which forms the subject of the proceedings taken against him to have been obtained by means of an act constituting an indictable offence. ##### 46A. Sunrise and sunset, proof of Where in any proceedings it is material to prove the time of sunrise or sunset, or both, in the State, in any area of the State, or at any place in the State on a particular day and such a time has, under the authority of the Perth Astronomical Observatory or such other body as the Governor by proclamation nominates in lieu of the Perth Astronomical Observatory, been specified by a notice in the *Government Gazette*, the production of the *Government Gazette* containing the notice shall be evidence that the time of sunrise or sunset, or both, in the State, in that area, or in that place, as the case may be, on that day was the time so specified. [Section 46A inserted: No. 33 of 1978 s. 2.] ##### 47. Conviction, acquittal and identity, proof of (1) A conviction or an acquittal of any person may be proved in any proceeding whatever by producing a record or extract of such conviction or acquittal, and by giving proof of the identity of the person in respect of whom the conviction or acquittal is sought to be proved with the person appearing in the record or extract of conviction or acquittal to have been convicted or acquitted. (1a) For the purpose of proving the identity of a person alleged to have been convicted, whether before or after the commencement of the *Evidence Act Amendment Act 1956*, an affidavit substantially in the form in the Sixth Schedule shall be admissible in evidence in all courts and shall be prima facie evidence that the person whose fingerprints are exhibited thereto — (a) is the person, who, in any document exhibited to the affidavit and purporting to be a record or abstract or certificate of conviction or a certified copy of a record or abstract or certificate of conviction, is referred to as having been convicted; (b) has been convicted of the offences mentioned in the affidavit. (2) A record or extract of a conviction or acquittal may, in the case of an indictable offence, consist of a certificate containing the substance and effect only (omitting the formal part of the indictment and conviction or acquittal), and purporting to be signed by the clerk of the court or other officer having the custody of the records of the court before which such conviction or acquittal took place, or purporting to be signed by the deputy of such clerk or officer; and, in the case of a summary conviction or acquittal, may consist of a copy of such conviction or acquittal purporting to be signed by any justice of the peace having jurisdiction over the offence in respect of which such conviction or acquittal took place, or to be signed by the proper officer of the court before which such conviction or acquittal took place, or by the clerk or other officer of any court to which such conviction or acquittal has been returned. (3) A record or extract of any conviction or acquittal made in pursuance of this section shall be admissible in evidence without proof of the signature or official character of the person appearing to have signed the same. (4) A conviction or an acquittal in any part of Her Majesty’s dominions may be proved under this section in respect of any person, and a conviction or an acquittal before the passing of this Act shall be admissible in the same manner as if it had taken place after the passing thereof. (5) The mode of proving a conviction or an acquittal or identity authorised by this section shall be in addition to, and not in exclusion of, any other authorised mode of proving such conviction or acquittal or identity. (6) A conviction shall be presumed not to have been appealed against or quashed or set aside until the contrary is shown. [Section 47 amended: No. 16 of 1956 s. 3.] [**48.** Deleted: No. 70 of 1988 s. 41.] ##### 49. Actions for seduction In any action to recover damages for seduction brought by a parent of the woman seduced, or by a person standing to her in the place of a parent, it shall not be necessary to allege or prove that she was in the service of the plaintiff, or that he sustained any loss of service by reason of the seduction. ##### 50. Corroboration warnings not generally required (1) In this section corroboration warning in relation to a trial means a warning to the effect that it is unsafe to convict the person who is being tried on the uncorroborated evidence of one witness. (2) On the trial of a person on indictment for an offence — (a) the judge is not required by any rule of law or practice to give a corroboration warning to the jury in relation to any offence of which the person is liable to be convicted on the indictment; and (b) the judge shall not give a corroboration warning to the jury unless the judge is satisfied that such a warning is justified in the circumstances. [Section 50 inserted: No. 70 of 1988 s. 42; amended: No. 36 of 1992 s. 5.] ##### 50A. Transcripts, proof of (1) A document consisting of a transcript of a recording that is admitted in evidence in any proceedings is admissible in those proceedings as evidence of the contents of the recording if the transcript bears a certificate that purports to be signed by the person who transcribed the recording and meets the requirements of subsection (2). (2) A certificate under subsection (1) must — (a) state the full name, address and occupation of the certifier; and (b) identify the recording to which the transcript refers; and (c) state the day upon which the certifier made the transcript, the condition of the recording at that time, the extent of any damage to the recording and the extent and nature of any difficulty encountered by the certifier in making an accurate and complete transcription of the contents of the recording; and (d) certify that the transcript has been made in good faith and is an accurate and complete transcription of the contents of the recording, except as stated under paragraph (c); and (e) if the certifier was authorised under the *Surveillance Devices Act 1998* to listen to the recording to which the transcript relates, state the details of that authorisation. [Section 50A inserted: No. 56 of 1998 s. 46.] ##### 50B. DNA evidentiary certificate authorised officer means the person who holds the office prescribed for the purposes of this definition; business day means a day that is not a Saturday, Sunday or public holiday; DNA profile means the result from DNA analysis; examination, of a thing, includes testing the thing; forensic scientist means a person, or a person who holds an office, prescribed for the purposes of this definition; hearing day, for a criminal proceeding, means the day fixed for the start of the trial of the proceeding; party, to a criminal proceeding, means the prosecutor or a person charged in the proceeding; thing includes anything in or on or otherwise attached to the thing. (2) This section applies to a criminal proceeding. (3) A certificate purporting to be signed by a forensic scientist and stating any of the following matters is evidence of the matter — (a) that a stated thing was received at a stated laboratory on a stated day; (b) that the thing was examined at the laboratory on a stated day or between stated days; (c) that a DNA profile was, or a stated number of DNA profiles were, obtained from the thing; (d) that a forensic scientist — (i) examined the laboratory’s records relating to the receipt, storage and examination of the thing, including any examination of the thing that was done by a person other than the forensic scientist; and (ii) confirms that the records indicate that all quality assurance procedures for the receipt, storage and examination of the thing that applied in the laboratory at the time the thing was examined were complied with. (4) If a party intends to rely on the certificate, the party must — (a) at least 10 business days before the hearing day, give a copy of the certificate to each other party; and (b) at the hearing, call the forensic scientist to give evidence, unless the parties agree otherwise. (5) If the authorised officer receives a written request from a party for a copy of the laboratory’s records relating to the receipt, storage and examination of the thing, the authorised officer must give the party a copy of the records within 7 business days after receiving the request. (6) If a party intends to dispute a matter stated in the certificate, the party must, at least 5 business days before the hearing day, give the authorised officer and each other party written notice of the matter to be disputed. (7) A party disputing a matter stated in the certificate may, with the leave of the court, require the party relying on the certificate to call any person involved in the receipt, storage or examination of the thing to give evidence at the hearing. (8) The court may give leave only if satisfied — (a) that an irregularity may exist in relation to the receipt, storage or examination of the thing about which the person to be called is able to give evidence; and (b) that it is in the interests of justice that the person be called to give evidence. (9) Any equipment used in examining the thing at the laboratory is taken to have given accurate results in the absence of evidence to the contrary. (10) A document required to be given under this section may be given personally, by post or by facsimile or another form of electronic communication. (11) On application made to it, the court may, before or after a time fixed under this section expires, extend or abridge the time by an order fixing, extending or abridging the time, whether or not the application is made before the time expires. (12) The Governor may make regulations for the purposes of the definitions of ***authorised officer*** and ***forensic scientist*** in subsection (1). [Section 50B inserted: No. 24 of 2004 s. 4.] *Evidence of witnesses in prison* ##### 51. Prisoner required to give evidence may be brought up on order When any person is detained in any prison under sentence or awaiting trial, or on remand for any offence, or for any other cause, and a trial, inquiry, inquest, or inquisition is pending at which it is deemed necessary that such prisoner should be present, any judge, or, in criminal proceedings the Sheriff of Western Australia or the chief executive officer, within the meaning of that expression as defined in section 3 of the *Prisons Act 1981*, may make an order signed by him or her directing any gaoler to produce such person, and such order shall be sufficient warrant or authority to any gaoler for producing such prisoner. [Section 51 amended: No. 31 of 1993 s. 41; No. 20 of 2013 s. 62.] ##### 52. Expense of bringing up prisoner In every civil proceeding the judge shall, and in every other proceeding he may, before making such order, require the applicant to deposit a sum sufficient to pay the expense of bringing up the prisoner, maintaining him while out of prison, and returning him thither, including the expense of his custody from the time he leaves until the time he returns to the prison. *Judicial notice* ##### 53. Commonwealth and States etc., and their Acts to be judicially noticed (1) All courts and all persons acting judicially shall take judicial notice — (a) of the Commonwealth and the States and of every Australasian colony, and the extent of their respective territories; and (b) of all Acts of the Parliament of the United Kingdom and of the Commonwealth, and of any State, and of any Australasian colony, passed before or after the commencement of this Act. (2) Any document (whether in printed or electronic form) purporting to be a copy of any Act of the Parliament of the United Kingdom or of the Commonwealth, or of any State, or of any Australasian colony, whether passed before or after the commencement of this Act, and purporting to be printed or published by the Government Printer, shall prima facie be deemed to be a correct copy of such Act without any further proof thereof. The date which appears on any such copy purporting to be the day on which such Act received the Royal Assent, or was proclaimed to commence, shall be received for all purposes as evidence of the date of such assent, or commencement. [Section 53 amended: No. 13 of 2021 s. 58.] ##### 54. Seals of the Commonwealth and States to be judicially noticed All courts and all persons acting judicially shall take judicial notice of the impression or image of the seal of the Commonwealth and of the seal of any State, and of the seal of any Australasian colony, without evidence of the seal having been impressed or applied or any other evidence relating thereto. [Section 54 amended: No. 20 of 2013 s. 63.] ##### 55. Official seals to be judicially noticed When by any Act any seal or stamp is authorised to be used by any court, officer, body corporate, or any other person, judicial notice shall be taken of the impression or image of such seal or stamp without evidence of the same having been impressed or applied or any other evidence relating thereto. [Section 55 amended: No. 20 of 2013 s. 64.] ##### 56. Certain signatures to be judicially noticed All courts and all persons acting judicially shall take judicial notice of — (a) the official signature of any person who holds or has held the office of Governor‑General, Minister of State, President of the Senate, Speaker of the House of Representatives, Secretary to the Federal Executive Council, Justice of the High Court, Principal Registrar, Deputy Registrar or District Registrar of the High Court, President or Deputy President of the Commonwealth Court of Conciliation and Arbitration, Industrial Registrar or Deputy Industrial Registrar, or President or Judge or member of any Federal Court, or of the Inter‑State Commission, or any office to which the Governor‑General, by order published in the *Gazette*, declares this section to apply; and (b) the official signature of every person who is for the time being, and of every person who has at any time been Governor, Minister of the Crown, Judge of the Supreme Court, Prothonotary, Master, Principal Registrar, Registrar, or Deputy Registrar, or Chief Clerk of the Supreme Court, Commissioner of Titles, Registrar of Titles, Deputy Commissioner of Titles or Assistant Registrar of Titles, the Registrar or a Deputy Registrar of Births, Deaths and Marriages, Government Statist or Assistant or Deputy Government Statist, Judge or Presiding Magistrate or Registrar or Deputy Registrar of any County Court, or District, Family or Local Court, or Court of Mines, Warden, Chairman of any Court of General or Quarter Sessions, Judge of any Court of Bankruptcy or Insolvency, or Police or stipendiary or other magistrate, or justice of the peace in any State or part or district of any State, or in any Australasian colony or part of district of any Australasian colony, and of any person holding in any State or in any Australasian colony or part or district of any State or Australasian colony any office corresponding to any of the aforesaid offices, and of any person holding in any such State or colony any office to which the Governor may, at any time, by order published in the *Gazette*, declare this section to apply; and (c) the seal of every such court or person; and (d) the fact that such person holds or has held such office, if the signature or seal, or an image of the signature or seal, purports to be attached, appended or applied to any judicial or official document. [Section 56 amended: No. 16 of 1956 s. 4; No. 111 of 1978 s. 4; No. 67 of 1979 s. 50; No. 40 of 1998 s. 12(a); No. 6 of 2003 s. 85(1); No. 59 of 2004 s. 89; No. 20 of 2013 s. 65.] *Proof of certain documents* ##### 57. United Kingdom proclamations, regulations etc., proof of (1) Evidence of any Royal Proclamation, Order of Her Majesty’s Privy Council, order, regulation, despatch, or any other instrument whatsoever made or issued before or after the commencement of this Act by Her Majesty, or by Her Majesty’s Privy Council, or by or under the authority of any of Her Majesty’s Secretaries of State, or any department of Her Majesty’s Government in the United Kingdom may be given in any court or before any person acting judicially — (a) by the production of a copy of the *London Gazette* or by the production of a copy of the *Government Gazette* purporting to contain a reprint or copy of such Proclamation, Order of the Privy Council, order, regulation, despatch, or other instrument; (b) by the production of a copy of such proclamation purporting to be printed or published by the Government Printer, or under the authority of Parliament; (c) by the production in the case of any proclamation, order, or regulation issued by Her Majesty or by the Privy Council of a copy or extract purporting to be certified to be true by the Clerk of the Privy Council, or by any one of the Lords or others of the Privy Council, and, in the case of any proclamation, order, or regulation issued by or under the authority of any departments of the Government or officers mentioned in the first column of the Fourth Schedule, by the production of a copy or extract purporting to be certified to be true by the person or persons specified in the second column of the said Schedule in connection with such department or officer. (2) Any copy or extract made in pursuance of this section may be in print or in writing, or partly in print or partly in writing. (3) No proof shall be required of the handwriting or official position of any person certifying, in pursuance of this section, to the truth of any copy of or extract from any proclamation, order, or regulation. (4) In this section the words Privy Council include Her Majesty in Council and the Lords and others of Her Majesty’s Privy Council, or any of them, and any Committee of the Privy Council that is not specially named in the Fourth Schedule. [Section 57 amended: No. 16 of 1956 s. 5; No. 13 of 2021 s. 59.] ##### 58. Australasian proclamations, regulations etc., proof of (1) Evidence of any proclamation, order in council, commission, order, regulation, or other instrument whatsoever made or issued before or after the commencement of this Act by the Governor‑General of the Commonwealth, or by the Governor of any State or of any Australasian colony, or by or under the authority of any Minister of the Crown for the Commonwealth, or for any State or Australasian colony, or of any public commission or board, may be given in any court or before any person acting judicially in any of the following modes, that is to say — (a) by the production of a copy of the *Gazette* purporting to contain the same; (b) by the production of a document purporting to be a copy thereof, and purporting to be printed or published by the Government Printer or by the authority of the Government; (c) by the production (in the case of any proclamation, order, commission, or regulation issued or made by the Governor‑General of the Commonwealth) of a document purporting to be certified by the Secretary to the Federal Executive Council as a true copy thereof or extract therefrom; (d) by the production (in the case of any proclamation, order in council, commission, order, regulation, or other instrument whatsoever made or issued by the Governor of any State, or of any Australasian colony) of a copy or extract purporting to be certified by the Clerk of the Executive Council of such State or Australasian colony; (e) by the production (in the case of any proclamation, order, commission, regulation, or other instrument made or issued by or under the authority of any Minister of the Crown) of a document purporting to be certified as a true copy thereof or extract therefrom by such Minister or any other Minister of the Crown. (2) No proof shall be required of the handwriting or official position of any person certifying in pursuance of this section. [Section 58 amended: No. 13 of 2021 s. 60.] ##### 59. *Customs Act 1901* (Cwlth) proclamations, regulations etc., proof of The production of the *Commonwealth of Australia* *Gazette* containing any proclamation, gazette notice, or regulation appearing to have been issued or made under the *Customs Act 1901*, or the production of any document certified by the Comptroller General of Customs or a State Collector of Customs to be a true copy of or extract from any such proclamation, gazette notice, or regulation issued or made under the said Act, shall be prima facie evidence of the issue or making of such proclamation, gazette notice, or regulation, and that the same is in force. ##### 60. Australian States’ proclamations and acts of State, proof of Evidence of any proclamation or other act of State of any State may be given in any court or before any person acting judicially by the production of a copy thereof either — (a) proved to be an examined copy thereof; or (b) purporting to be sealed with the seal of that State. ##### 61. WA proclamations, regulations etc., proof of Evidence of any proclamation, order, regulation, or notice made or issued before or after the commencement of this Act by or under the authority of the Governor, or of the Governor in Executive Council, or of the Legislative Council or Legislative Assembly, or of the chief executive officer of any department of the Public Service, or of any body, listed in the first column of the Fifth Schedule mentioned, may be given in any court or before any person acting judicially by the production of a copy of or extract therefrom, such copy or extract purporting to be certified to be true by the person or persons specified in the second column of the said Schedule in connection with the officer, department, or body in the said first column mentioned. [Section 61 amended: No. 28 of 2006 s. 35.] ##### 62. Documents admissible in United Kingdom etc. to be admissible in WA Every document admissible in evidence for any purpose in any court of justice in any part of Her Majesty’s dominions, without proof of the seal or stamp or signature authenticating the same, or of the judicial or official character of the person appearing to have signed the same, shall be admitted in evidence to the same extent and for the like purpose in any court or before any person acting judicially in Western Australia, without proof of the seal or stamp or signature authenticating the same, or of the judicial or official character of the person appearing to have signed the same. ##### 63. Foreign States’ proclamations, acts of State etc., proof of (1) All proclamations, treaties, and other acts of State of any foreign State, or of any British possession may be proved in any court or before any person acting judicially, either by examined copies or by copies sealed with the seal of the foreign State or British possession to which the original document belongs. (2) Any copy purporting to be sealed as in this section directed shall be admitted in evidence in every case where the original document could have been so admitted, without any proof of the seal. ##### 64. Foreign States’ proclamations etc. admissible even if not sealed Proclamations, international treaties, and orders in council of any country, although not proved in the manner provided by the last preceding section, may nevertheless be received in evidence in any court or before any person acting judicially, if such court or person considers the same to be authentic. ##### 65. Copies of public documents admissible in some cases (1) Whenever in any part of Her Majesty’s dominions any book or other document is of such a public nature as to be admissible in evidence on its mere production from the proper custody, any copy thereof or extract therefrom shall be admissible in evidence in any court or before any person acting judicially, if — (a) it is proved to be an examined copy or extract; or (b) it purports to be signed and certified as a true copy or extract by the officer to whose custody the original is entrusted. (2) Every officer to whose custody the original of any book or document of such a public nature as aforesaid is entrusted in Western Australia is hereby required to furnish a certified copy of such book or extract therefrom to any person applying at a reasonable time, and paying a reasonable sum for the same, not exceeding 4 cents for every folio of 72 words. [Section 65 amended: No. 113 of 1965 s. 4(1).] ##### 65A. Certified photographs from library admissible (1) A photograph that is certified by an officer of the Library Board of Western Australia, as being a true reproduction of, or of part of, any book or other printed matter or of any document, in the custody and control of that board, is admissible in evidence, to the same extent that the book or other printed matter or the original document would, if produced, be admissible. (2) In this section, officer of the Library Board of Western Australia means an officer appointed by that board under the provisions of section 6 of the *Library Board of Western Australia Act 1951*; and judicial notice shall, for the purposes of this section, be taken of the official signature of every such officer. [Section 65A inserted: No. 11 of 1964 s. 3.] ##### 66. Parliamentary proceedings in Australasia, proof of All documents purporting to be copies of the votes and proceedings of either House of the Parliament of the Commonwealth, or of any State, or of any Australasian colony, if purporting to be printed by the Government Printer, shall, on the mere production of the same, be admitted as evidence in any court, or before any person acting judicially. ##### 67. Certain documents admissible without proof of signature, seal etc. (1) In this section, a reference to a seal, stamp or signature includes an image of a seal, stamp or signature. (2) Whenever by any Act of the Imperial Parliament, or of the Parliament of any State or of any Australasian colony, now or hereafter to be in force — (a) any certificate; or (b) any official or public document; or (c) any document or proceeding of any corporation or joint‑stock or other company; or (d) any copy of or extract from any document or by‑law, or entry in any register or other book, or of or from any other proceeding, is admissible in evidence in any legal proceeding in the United Kingdom or in the particular State or colony, the same shall respectively be admitted in evidence in all courts and before all persons acting judicially in Western Australia, if it purports to be certified or sealed, or impressed with a stamp, or sealed and signed, or signed alone, or impressed with a stamp and signed, as directed by such Act, without any proof — (i) of the seal or stamp, where a seal or stamp is necessary; or (ii) of the signature; or (iii) of the official character of the person appearing to have signed the same, and without any further proof thereof. [Section 67 amended: No. 20 of 2013 s. 66.] ##### 68. Register of British vessels etc., proof of (1) Every register of a vessel kept under any of the Acts of the Imperial Parliament or of any British possession relating to the registry of any British or colonial vessels, may be proved in any court or before any person or persons acting judicially either by the production of the original, or by an examined copy thereof, or by a copy thereof purporting to be certified and signed by the person having the charge of the original, and which person is hereby required to furnish such certified copy to any person applying at a reasonable time for the same, upon payment of the sum of 25 cents. (2) Every such register or such copy of a register, and also every certificate of registry granted under any of the Acts of the Imperial Parliament or of any British possession relating to the registry of any British or colonial vessels, and purporting to be signed as required by law, shall be received in evidence in any court, or before any person acting judicially, as prima facie proof of all the matters contained or recited in such register when the register or such copy thereof as aforesaid is produced, and of all the matters contained or recited in or endorsed on such certificate of registry when the said certificate is produced. [Section 68 amended: No. 113 of 1965 s. 4; No. 20 of 2013 s. 67.] ##### 69. Newspaper proprietors, proof of register of Every copy of an entry in or extract from the register of newspaper proprietors established under the *Newspaper Libel and Registration Act 1884* 3, purporting to be certified by the Registrar of the Supreme Court or his deputy for the time being, or under the official seal of the Registrar, shall be received as conclusive evidence of the contents of the said register of newspaper proprietors, so far as the same appear in such copy or extract, without proof of the signature thereto, or of the seal of office affixed thereto. Every such certified copy or extract shall, in all proceedings, civil or criminal, be accepted as sufficient prima facie evidence of all matters and things thereby appearing, unless and until the contrary thereto is shown. [Section 69 amended: No. 74 of 2003 s. 142(2).] ##### 69A. WA registers, proof of When by any Statute in force in the State any person is required to keep any register, then any register purporting or appearing to be kept pursuant to the Statute shall (save in so far as the contrary may be proved) be deemed to be and be admissible in evidence as a complete and accurate register and record and — (a) any document purporting to be a copy of the register and to be certified as correct by the person aforesaid; or (b) a *Gazette* containing what purports to be a copy of the register; or (c) any document purporting to be a copy of the register and to be printed or published by the Government Printer or by the authority of the Government of the State, shall be prima facie evidence of the contents of the register as existing on the date when the document or *Gazette* purports to have been certified, printed, published or issued, and the production thereof in any court or before any person shall (save in so far as it may be proved not to be a true copy) be equivalent to the production of the original register. [Section 69A inserted: No. 16 of 1913 s. 4; amended: No. 13 of 2021 s. 61.] ##### 70. Statutes etc. of any country, proof of Books purporting to have been printed or published, whether before or after the commencement of this Act, under the authority of the Government of any country, or by the printer to such Government, and purporting to contain Statutes, Ordinances, or other written laws in force in such country, shall, on production, be admitted and received by all courts and persons, acting judicially as prima facie evidence of such laws. ##### 71. Certain law reports and texts may be referred to as evidence of laws Printed books purporting to contain Statutes, Ordinances, or other written laws in force in any country, although not purporting to have been printed or published by authority as aforesaid, books purporting to contain reports of decisions of courts or judges in such country, and text‑books treating of the laws of such country, may be referred to by all courts and persons acting judicially for the purpose of ascertaining the laws in force in such country; but such courts or persons shall not be bound to accept or act on the statements in any such books as evidence of such laws. ##### 72. Authoritative texts on history, science etc., reference to All courts and persons acting judicially may, in matters of public history, literature, science, or art, refer, for the purposes of evidence, to such published books, maps, or charts as such courts or persons consider to be of authority on the subjects to which they respectively relate. ##### 73. Documents admitted into evidence may be impounded Where any document has been received in evidence, the court or person acting judicially admitting the same may direct that such document be impounded and kept in the custody of some officer of the court, or other proper person, until further order. *Reproduction of documents* [Heading inserted: No. 20 of 1966 s. 3.] ##### 73A. Reproductions admissible (best evidence rule modified) (1) A document that accurately reproduces the contents of another document is admissible in evidence before a court in the same circumstances, and for the same purposes, as that other document, whether or not that other document still exists. (2) In determining whether a particular document accurately reproduces the contents of another, a court is not bound by the rules of evidence and — (a) may rely on its own knowledge of the nature and reliability of the processes by which the reproduction was made; or (b) may make findings based on a certificate in the prescribed form signed by a person with knowledge and experience of the processes by which the reproduction was made; or (c) may make findings based on a certificate in the prescribed form signed by a person who has compared the contents of both documents and found them to be identical; or (d) may act on any other basis it considers appropriate in the circumstances. (3) This section applies to a reproduction made — (a) by an instantaneous process; or (b) by a process in which the contents of a document are recorded by photographic, electronic or other means, and the reproduction is subsequently produced from that record; or (c) by a process prescribed for the purposes of this section; or (d) in any other way. (4) If a reproduction is made by a process referred to in subsection (3)(c), the process shall be presumed to reproduce accurately the contents of the document purportedly reproduced unless the contrary is proved. (5) If so requested by a party to the proceedings, a court shall give reasons for determining that a document is or is not an accurate reproduction. (6) A person who signs a certificate for the purposes of this section knowing it to be false or misleading in any material particular commits an indictable offence and is liable on conviction to imprisonment for 7 years. (7) This section does not apply to or in respect of a copy of a document if the copy is admissible under another written law. [Section 73A inserted: No. 71 of 2000 s. 10.] ##### 73B. Certified reproductions of certain public documents etc., admissible without further proof (1) If a reproduction of a document that is or at any time was in the custody or under the control of the Registrar of Births, Deaths and Marriages, the Registrar of Titles, Commissioner for Corporate Affairs or the Government Statist bears a certificate that purports to be signed by the Registrar of Births, Deaths and Marriages, the Registrar of Titles, an Assistant Registrar of Titles, Commissioner for Corporate Affairs, a Deputy Commissioner for Corporate Affairs, an Assistant Commissioner for Corporate Affairs, or the Government Statist, as the case requires, certifying that it is a reproduction of that document, the reproduction is admissible in evidence without further proof as if it were the document of which it is certified to be a reproduction. (2) If a reproduction of a document that is at any time filed in a court or of the official record of any proceedings in a court bears a certificate purporting to be signed by the registrar, clerk or other proper officer of that court certifying that it is a reproduction of that document or that record, the reproduction is admissible in evidence without further proof as if it were the document or record of which it is certified to be a reproduction. (3) Where the Registrar of Births, Deaths and Marriages, the Registrar of Titles, Commissioner for Corporate Affairs, the Government Statist or the registrar, clerk or proper officer of a court is served with legal process to produce a document or record in a court or before a person acting judicially, it is sufficient answer to that process if the person to whom it is addressed sends or causes to be delivered to the registrar, clerk or proper officer of the court in which the document or record is to be produced or the person before whom the document or record is to be produced, a reproduction of the document or record certified as provided in subsection (1) or (2) as the case requires. [Section 73B inserted: No. 20 of 1966 s. 4; amended: No. 90 of 1975 s. 3; No. 67 of 1979 s. 51; No. 40 of 1998 s. 12(b); No. 20 of 2013 s. 68.] ##### 73BA. Authenticated copies of certain public documents etc. admissible without further proof authenticated copy, in relation to a document or official record to which this section applies, means a copy of the document or official record that is authenticated in accordance with any regulations or rules of court as being produced from an electronic version of the document or official record. (2) This section applies to — (a) a document that is at any time filed in a court and is recorded in electronic form; and (b) the official record of any proceedings in a court, if the official record is kept in electronic form. (3) An authenticated copy of a document or official record to which this section applies is admissible in evidence without further proof as if it were the document or official record of which it is an authenticated copy. (4) If the registrar, clerk or proper officer of a court is served with legal process to produce, in a court or before a person acting judicially, a document or official record to which this section applies, it is sufficient answer to that process if the person to whom it is addressed provides or makes available to the registrar, clerk or proper officer of the court in which the document or official record is to be produced or the person before whom the document or official record is to be produced an authenticated copy of the document or official record. [Section 73BA inserted: No. 20 of 2013 s. 69.] [**73C‑73M.** Deleted: No. 71 of 2000 s. 11(a).] ##### 73N. Reproductions of documents over 30 years old, presumptions as to A presumption that may be made in respect of a document over 30 years old may be made with respect to a reproduction of that document admitted in evidence in all respects as if the reproduction were the document. [Section 73N inserted: No. 20 of 1966 s. 15; amended: No. 71 of 2000 s. 12.] [**73P.** Deleted: No. 71 of 2000 s. 11(b).] ##### 73Q. Reproduced official seals and signatures to be judicially noticed Where an Act or law requires a court or person acting judicially to take judicial notice of the seal or signature of any court, person or body corporate appearing on a document and a reproduction of that document is admitted in evidence in any proceedings before the court or person acting judicially, the court or person acting judicially shall take judicial notice of the image of the seal or signature on the reproduction to the same extent as it or he would be required to take judicial notice of the seal or signature on the document. [Section 73Q inserted: No. 20 of 1966 s. 17; amended: No. 71 of 2000 s. 13.] [**73R‑73T.** Deleted: No. 71 of 2000 s. 11(c).] ##### 73U. Reproduction admissible subject to *Stamp Act 1921* or *Duties Act 2008* (1) Notwithstanding the provisions of this Division, where a document is chargeable with duty under a duties Act then, subject to that Act, a reproduction of the document is not admissible under this Division in any proceedings before a court or person acting judicially unless — (a) the reproduction of the document shows or establishes to the satisfaction of the court or the person or it is otherwise so established that the document was stamped in accordance with that Act; or (b) where the reproduction does not so show or establish and it is not otherwise so established, the provisions of that Act which relate to documents that are not stamped in accordance with that Act are complied with with respect to the reproduction as though it were the document. (2) Subject to this section, duty is not chargeable under a duties Act on — (a) a reproduction of a document made in accordance with this Division; or (b) an affidavit or statutory declaration made for the purposes of this Division. (3) In this section — duties Act means the *Stamp Act 1921* or the *Duties Act 2008*; stamped means stamped or endorsed to indicate duty under a duties Act. [Section 73U inserted: No. 20 of 1966 s. 21; amended: No. 41 of 1995 s. 9; No. 45 of 2002 s. 11; No. 12 of 2008 Sch. 1 cl. 8(2)-(4); No. 47 of 2011 s. 27.] [**73V.** Deleted: No. 71 of 2000 s. 11(d).] *Proof of certain matters* ##### 74. Gazettes of certain places, proof of The mere production of a document purporting to be the *London* *Gazette*, the *Edinburgh* *Gazette*, the *Dublin Gazette*, the *Commonwealth of Australia* *Gazette*, or the *Gazette* of any State or of any Australasian colony shall, before all courts and persons acting judicially, be evidence that the document is such *Gazette*, and was published on the day on which it bears date. [Section 74 amended: No. 13 of 2021 s. 62.] ##### 75. Government Printers’ publications, proof of The mere production of a document purporting to be printed or published by the Government Printer, or by the authority of the Imperial Government or the Government of the Commonwealth, or of any State, or of any Australasian colony, shall, before all courts and persons acting judicially, be evidence that the document was printed or published by the Government Printer or by such authority. [Section 75 amended: No. 13 of 2021 s. 63.] ##### 76. Her Majesty’s Stationery Office publications, status of Where by this Act or any other enactment, whether passed before or after this Act, it is provided that a copy of any Act of Parliament, proclamation, order, regulation, rule, warrant, circular, list, gazette, or document, shall be conclusive evidence or have any other effect when purporting to be printed by the Government Printer, or the Queen’s Printer, or a printer authorised by Her Majesty, whatever may be the precise expression used, such copy shall also be conclusive evidence, or evidence, or have the said effect as the case may be if it purports to be printed under the superintendence or authority of Her Majesty’s Stationery Office. ##### 77. Acts of governors and ministers of States, proof of Where by any law at any time in force the Governor‑General or the Governor of any State or of any Australasian colony, or any Minister of the Crown for the Commonwealth or a State, or any Australasian colony, is authorised or empowered to do any act, production of the *Gazette* purporting to contain a copy or notification of any such act shall, before all courts and persons acting judicially, be evidence of the act having been duly done. ##### 78. Local laws, by‑laws and regulations, proof of Where by any Act of the Commonwealth or of any State, power to make local laws, by‑laws or regulations is conferred upon any person or body, any document purporting to be such local laws, by‑laws or regulations, and to be printed or published by the Government Printer or by the authority of the Government of the Commonwealth or of the State, shall, before all courts and persons acting judicially, be evidence — (a) that local laws, by‑laws or regulations in the words set out in the document were duly made by such person or body; and (b) that such local laws, by‑laws or regulations have been approved of or confirmed by the Governor‑General or the Governor of the State, if they appear from the document to have been so approved or confirmed. [Section 78 amended: No. 14 of 1996 s. 4; No. 13 of 2021 s. 64.] ##### 79. Incorporation of a company, proof of (1) All courts and persons acting judicially shall admit and receive as evidence of the incorporation of a company incorporated or registered in the United Kingdom, either before or after the commencement of this Act, a certificate of the incorporation or registration thereof which purports to have been signed — (a) by the registrar or an assistant or deputy registrar of companies in England, Scotland, or Ireland; or (b) by a person whose authority to give the same shall be verified by a statutory declaration made before any judge or justice of the peace, of whose signature such courts and persons aforesaid shall take judicial notice. And the date of incorporation or registration mentioned in such certificate shall be evidence of the date on which the company was incorporated or registered. (2) Any copy of or extract from any document kept and registered at the office for the registration of companies in the United Kingdom or any part thereof, if certified under the hand of the registrar or an assistant or deputy registrar, shall, before all courts and persons acting judicially, be admissible in evidence in all cases in which the original document is admissible in evidence and for the same purposes and to the same extent. (3) A reference in subsection (1) or (2) to the registrar or an assistant or deputy registrar shall be construed — [(a) deleted] (b) as including a reference to a person holding within the office for the registration of companies in the United Kingdom or any part thereof or an office which corresponds to the office of Commissioner for Corporate Affairs or Assistant Commissioner for Corporate Affairs or Deputy Commissioner for Corporate Affairs under the *Companies (Administration) Act 1982* or any corresponding previous enactment. [Section 79 amended: No. 10 of 1982 s. 28; No. 8 of 2009 s. 7.] ##### 79A. Document requiring attestation, proof of Where a document requires attestation to be valid that document may, in any legal proceeding, be proved in the manner in which it might be proved if no attesting witness to the document were alive, but this section does not apply to the proof of a will or other testamentary document. [Section 79A inserted: No. 12 of 1962 s. 2.] ##### 79B. Terms used In this section and in sections 79C, 79D, 79E, 79F and 79G — business means any business, occupation, trade or calling and includes the business of any governmental body or instrumentality and of any local government; business record means a book of account or other document prepared or used in the ordinary course of a business for the purpose of recording any matter relating to the business; derived means derived, by the use of a computer or otherwise, by calculation, comparison, selection, sorting, consolidation or by accounting, statistical or logical procedures; document means any record of information and includes, in addition to a document in writing — (a) any book, map, plan, graph or drawing; and (b) any photograph; and (c) any disc, tape, sound track or other device in which sounds or other data (not being visual images) are embodied so as to be capable (with or without the aid of some other device) of being reproduced therefrom; and (d) any film, negative, disc, tape or other device in which one or more visual images are embodied so as to be capable (with or without the aid of some other device) of being reproduced therefrom; proceedings includes arbitrations and references and court shall be construed accordingly; qualified person, in relation to a statement, means a person who — (a) had, at the time of making of the statement, or may reasonably be supposed to have had at that time, personal knowledge of the matters dealt with by the statement; or (b) where the statement is not admissible in evidence unless made by an expert on the subject of the statement, was at the time of making of the statement such an expert; statement includes any representation of fact or opinion whether made in words or otherwise. [Section 79B inserted: No. 66 of 1987 s. 5; amended: No. 71 of 2000 s. 14.] ##### 79C. Documentary evidence, admissibility of (1) Subject to subsection (2), in any proceedings where direct oral evidence of a fact or opinion would be admissible, any statement in a document and tending to establish the fact or opinion shall, on production of the document, be admissible as evidence of that fact or opinion if the statement — (a) was made by a qualified person; or (b) directly or indirectly reproduces or is derived from one or other or both of the following — (i) information in one or more statements, each made by a qualified person; (ii) information from one or more devices designed for, and used for the purpose of, recording, measuring, counting or identifying information, not being information based on a statement made by any person. (2) Where a statement referred to in subsection (1) is made by a qualified person or reproduces or is derived from information in a statement made by a qualified person, that person must be called as a witness unless — (a) he is dead; or (b) he is unfit by reason of his bodily or mental condition to attend or give evidence as a witness; or (c) he is out of the State and it is not reasonably practicable to secure his attendance; or (d) all reasonable efforts to identify or find him have been made without success; or (e) no party to the proceedings who would have the right to cross‑examine him requires him to be called as a witness; or (f) having regard to the time which has elapsed since he made the statement and to all the circumstances, he cannot reasonably be expected to have any recollection of the matters dealt with in the statement; or (g) having regard to all the circumstances of the case, undue delay, inconvenience or expense would be caused by calling him as a witness; or (h) he refuses to give evidence. (2a) Notwithstanding subsections (1) and (2), in any proceedings where direct oral evidence of a fact or opinion would be admissible, any statement in a document and tending to establish the fact or opinion shall, on production of the document, be admissible as evidence of that fact or opinion if — (a) the statement is, or directly or indirectly reproduces, or is derived from, a business record; and (b) the court is satisfied that the business record is a genuine business record. (2b) Where a statement referred to in subsection (2a) is made by a qualified person that person shall not be called as a witness unless the court orders otherwise. (3) This section makes a statement admissible notwithstanding — (a) the rules against hearsay; or (b) the rules against secondary evidence of the contents of a document; or (c) that the person who made the statement or the person who made a statement from which the information in the statement is reproduced or derived is a witness in the proceedings, whether or not he gives evidence consistent or inconsistent with the statement; or (d) that the statement is in such a form that it would not be admissible if given as oral evidence, but does not make admissible a statement which is otherwise inadmissible. (4) Notwithstanding subsections (1), (2) and (2a), in any criminal proceedings a statement in a document which was made in the course of or for the purpose of — (a) the investigation of facts constituting or being constituents of the alleged offence being dealt with in the proceedings; or (b) an investigation which led to the discovery of facts constituting or being constituents of the alleged offence; or (c) the preparation of a defence to a charge for any offence; or (d) the preparation of the case of the prosecution in respect of any offence, shall not be rendered admissible as evidence by this section. (5) For the purposes of this section a court may — (a) for the purpose of deciding whether or not a statement is admissible as evidence, draw any reasonable inference from the form or contents of the document in which the statement is contained, or from any other circumstances; (b) in deciding whether or not a person is fit to attend or give evidence as a witness, act on a certificate purporting to be the certificate of a registered medical practitioner. (6) For the purposes of this section a court may, in its discretion, reject a statement notwithstanding that the requirements of this section are satisfied with respect thereto, if the court is of the opinion that the probative value of the statement is outweighed by the consideration that its admission or the determination of its admissibility — (a) may necessitate undue consumption of time; or (b) may create undue prejudice, confuse the issues, or in proceedings with a jury mislead the jury. [Section 79C inserted: No. 66 of 1987 s. 5; amended: No. 71 of 2000 s. 15.] ##### 79D. Evidence admitted under s. 79C, weight and effect of (1) In estimating the weight, if any, to be attached to a statement rendered admissible as evidence by section 79C regard shall be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement, and, in particular — (a) to the question of whether or not the statement was made contemporaneously with the occurrence or existence of the facts stated; and (b) to the question of whether or not the qualified person or any person concerned with making or keeping the document containing the statement, had any incentive to conceal or misrepresent the facts; and (c) to the question of whether or not the information in the statement was of a kind which was collected systematically; and (d) to the question of whether or not the information in the statement was collected pursuant to a duty to do so; and (e) where the statement wholly or in part reproduces or is derived from information from one or more devices, to the reliability of the device or devices; and (f) where the statement reproduces or is derived from any information, to the reliability of the means of reproduction or derivation. (2) For the purpose of any rule of law or practice requiring evidence to be corroborated or regulating the manner in which uncorroborated evidence is to be treated, a statement rendered admissible as evidence by virtue of section 79C shall not be treated as corroboration of the evidence given by the qualified person. [Section 79D inserted: No. 66 of 1987 s. 5.] ##### 79E. Qualified person, evidence as to credibility of Where in any proceedings a statement is admitted as evidence under section 79C but the qualified person is not called as a witness in the proceedings — (a) any evidence — (i) which, if that person had been so called, would have been admissible for the purpose of destroying or supporting his credibility as a witness shall be admissible for that purpose in those proceedings; or (ii) tending to prove that, whether before or after that person made that statement, he made another statement (whether orally or in a document or otherwise) inconsistent therewith shall be admissible for the purpose of showing that he has contradicted himself, but nothing in subparagraph (i) or (ii) shall enable evidence to be given of any matter of which, if the person in question had been called as a witness and had denied that matter in cross‑examination, evidence could not have been adduced by the cross‑examining party; and (b) any evidence proving that that person has been guilty of any indictable offence shall be admissible in the proceedings to the same extent as if he had been so called and on being questioned as to whether or not he had been convicted of an indictable offence had denied the fact or had not admitted the fact or had refused to answer the question. [Section 79E inserted: No. 66 of 1987 s. 5.] ##### 79F. Dispute as to happening of event (1) Where in any proceedings the happening of an event is in question, and a system has been followed to make and keep a record of the happening of all events of that description, oral or other evidence to establish that there is no record of the happening of the event is admissible to prove that the event did not happen. (2) Where evidence is, or is proposed to be, tendered under this section, a court may require that the whole or part of the record concerned be produced and, in default, may reject the evidence or, if it has been received, exclude it. (3) In estimating the weight, if any, to be attached to evidence rendered admissible by this section, regard shall be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the evidence, including whether or not any person concerned with the making or keeping of the relevant record had any incentive to omit recording the happening of the event in question. [Section 79F inserted: No. 66 of 1987 s. 5.] [**79G.** Deleted: No. 71 of 2000 s. 16.] *Proof of judicial proceedings* ##### 80. Judgments, orders etc., proof of Evidence of any judgment, decree, rule, order, or other judicial proceeding of any court in any part of Her Majesty’s dominions, or in any foreign State, including any affidavit, pleading, or legal document filed or deposited in any such court, may be given in all courts and before all persons acting judicially by the production of a document purporting to be a copy thereof, and — (a) proved to be an examined copy thereof; or (b) purporting to be sealed with the seal of the court; or (c) purporting to be certified as a true copy by a registrar or chief officer of the court; or (d) purporting to be signed by a judge of such court, with a statement in writing attached by him to his signature that such court has no seal, and without proof of his judicial character or of the truth of such statement. ##### 81. Documents properly authenticated to be given faith and credit All public acts, records, and judicial proceedings of any State, if proved or authenticated as required by this Act, shall have such faith and credit given to them before all courts and persons acting judicially, and in every public office, as they have by law or usage in the courts and public offices of the State from whence they are taken. [Heading deleted: No. 20 of 2013 s. 70(1).] [**82‑88.** Deleted: No. 20 of 2013 s. 70(2).] *Bankers’ books* ##### 89. Banker’s book entries are evidence of transactions etc. Subject to this Act — (a) any entry in a banker’s book shall be evidence of the matters, transactions, and accounts therein recorded; and (b) a copy of any entry in a banker’s book shall be evidence of the entry and of the matters, transactions, and accounts therein recorded. [Section 89 inserted: No. 66 of 1987 s. 6.] ##### 90. Banker’s books, proof of (1) A copy of an entry in a banker’s book shall not be received in evidence, unless it is first proved — (a) that the book was, at the time of the making of the entry, one of the ordinary books of the bank; and (b) that the entry was made in the usual and ordinary course of business. (2) Such proof may be given by a partner or officer of the bank, and may be given either orally or by affidavit. [Section 90 amended: No. 66 of 1987 s. 7.] ##### 91. Banker’s books, copies to be certified A copy of an entry in a banker’s book shall not be received in evidence unless it is certified to be a true copy of the entry in such manner as is approved by the court. [Section 91 inserted: No. 66 of 1987 s. 8.] ##### 92. Bank accounts, bank officer may give evidence about In any legal proceedings in which it is necessary to prove — (a) the state of an account in the books of any bank; or (b) that any person had not an account or any funds to his credit in such books, it shall not be necessary to produce any such book, but evidence of the state of such account, or that no such account or funds existed, may be given either orally or by affidavit by any officer or clerk of such bank who has examined such books. [Section 92 amended: No. 10 of 1960 s. 3.] ##### 92A. Australian and foreign banks, application to of s. 89 to 92 Sections 89, 90, 91 and 92 apply to bankers’ books, and banks and branches of banks, whether within or outside the Commonwealth. [Section 92A inserted: No. 71 of 2000 s. 17.] ##### 93. Bank officers not compellable in some cases An officer of a bank shall not, in any legal proceeding to which the bank is not a party, be compellable — (a) to produce any banker’s book, the contents of which can be proved under the provisions of this Act; or (b) to appear as a witness to prove the matters, transactions, and accounts therein recorded, unless by order of a judge of the Supreme Court made for special cause. [Section 93 amended: No. 26 of 1999 s. 78(3).] ##### 94. Banker’s books, Supreme Court may order inspection of (1) On the application of any party to a legal proceeding, the court or a judge of the Supreme Court may order that such party be at liberty to inspect and take copies of any entries in a banker’s book relating to the matters in question in such proceeding. (2) An order under this section may be made either with or without summoning the bank or any other party, and shall be served on the bank by delivering a copy of the order to an officer of such bank at a principal or a branch office thereof, having the custody of the book of which inspection is desired, 3 clear days before the same is to be obeyed, unless the court or judge otherwise directs. (3) Sunday, Christmas Day, Good Friday, and any bank holiday shall be excluded from the computation of time under this section. ##### 95. Costs under s. 93 and 94 (1) The costs of — (a) any application to a court or judge under or for the purposes of sections 93 or 94; or of (b) anything done or to be done under an order of a court or judge made under or for the purposes of section 94, shall be in the discretion of the court or judge, who may order the same or any part thereof to be paid to any party by the bank where the same have been occasioned by any default or delay on the part of the bank. (2) Any such order against a bank may be enforced as if the bank was a party to the proceeding. ##### 96. Supreme Court judge’s powers may be exercised by other judicial officers The powers of a judge of the Supreme Court under this Act in regard to banker’s books may be exercised in any legal proceeding presided over by — (a) a judge of The District Court of Western Australia; (b) a judge of the Family Court of Western Australia; (c) a person exercising the jurisdiction of the Magistrates Court; (d) a person exercising the jurisdiction of the Children’s Court of Western Australia. [Section 96 inserted: No. 59 of 2004 s. 88.] *Mode of taking evidence* ##### 97. Evidence to be on oath except in some cases (1) Subject to any other Act in which express provision is made to the contrary, in any civil or criminal proceeding, or in any inquiry or examination in any court or before any person acting judicially, every witness other than — (a) a witness the evidence of whom may be received pursuant to this Act though not given on oath; and (b) a witness called for the purpose only of producing a document, where there is another witness called or to be called who can identify the document; and (c) counsel giving evidence of the terms of a compromise reached between the parties to litigation in which he acted for one of those parties; and (d) a judge, or counsel, giving evidence by way of explanation of a case in which he acted as such, shall give evidence on oath. (2) In any criminal proceeding, no accused person shall be entitled to make a statement of fact at his trial, otherwise than by way of admission of a fact alleged against him so as to dispense with proof of that fact, unless such statement is made by him as a witness. (3) The form of oath for a witness is as follows — I [*insert an oath or affirmation according to the Oaths, Affidavits and Statutory Declarations Act 2005*] that the evidence I will give in this case will be the truth, the whole truth and nothing but the truth. [Section 97 inserted: No. 142 of 1976 s. 2; amended: No. 24 of 2005 s. 44.] [**98-100.** Deleted: No. 24 of 2005 s. 45.] ##### 100A. Oath may be dispensed with in some cases (1) Where in any civil or criminal proceeding, or in an inquiry or examination in any court or before any person acting judicially the court or that person is satisfied that a person who is tendered as a witness does not understand the nature of, or the obligation imposed by, an oath or affirmation but does understand — (a) that he is required to speak the truth and, where the witness is a compellable witness, to tell what he knows about the matter to which the testimony relates; and (b) that he will be liable to punishment if he does not do so, the evidence of that person may be received without an oath and without formality. (2) In taking into account the weight and credibility that ought to be afforded to testimony given by a witness otherwise than on oath or affirmation regard shall be had to the manner and circumstances in which it is given and received and to the fact that it was given without the sanction of an oath or affirmation. [(3) deleted] (4) Before evidence is received pursuant to this section the court or person acting judicially shall explain or cause to be explained to the person tendered as a witness that he is required to speak the truth and, where the witness is a compellable witness, to tell what he knows about the matter in question and that he will be liable to punishment if he does not do so. (5) A person who, in giving evidence pursuant to this section, knowingly makes a false statement material to the subject matter thereof is guilty of a crime and liable on conviction to imprisonment for a term of not more than 5 years. (6) References in this section to — (a) a person who is tendered as a witness; [(b) deleted] extend to a child who is of or over the age of 12 years and who is tendered as a witness; and the provisions of this section have effect accordingly. (7) Except as provided in subsection (6), this section does not apply to a child, as defined in section 106A. (8) This section does not apply to a person who is tendered as a witness and who has a mental impairment as defined in the *Criminal Law (Mental Impairment) Act 2023* section 9(1). [Section 100A inserted: No. 142 of 1976 s. 4; amended: No. 36 of 1992 s. 6; No. 70 of 2004 s. 82; No. 84 of 2004 s. 80; No. 24 of 2005 s. 46; No. 2 of 2008 s. 43; No. 10 of 2023 s. 341.] [**101.** Deleted: No. 36 of 1992 s. 7.] ##### 102. Interpreters, oaths etc. for (1) If a person is called to act as an interpreter in any court, or before any person acting judicially, and that person, had he or she been tendered as a witness, would have been required to take an oath or make an affirmation, he or she shall be required to take an oath or affirmation as follows — I [*insert an oath or affirmation according to the Oaths, Affidavits and Statutory Declarations Act 2005*] that I will well and truly translate any evidence that I am asked to translate in this case. (2) A person who, having taken the oath or made an affirmation as an interpreter under this section, in interpreting any testimony pursuant to this section knowingly fails to translate or translates falsely any material matter is guilty of a crime and liable on conviction to imprisonment for a term of not more than 14 years. [Section 102 inserted: No. 142 of 1976 s. 6; amended: No. 24 of 2005 s. 47.] ##### 103. Interpreters, oath etc. may be dispensed with (1) If any person is called to act as an interpreter in any court, or before any person acting judicially, and for any reason is not required to take an oath or make an affirmation such person may be admitted to act as interpreter, if the court or person acting judicially is satisfied as to his ability to do so competently and as to his impartiality, in the same way as if he had taken the usual oath required of a person so called where, had he been a person tendered as a witness, his evidence might have been received pursuant to this Act without an oath and without formality, and the provisions of section 100A shall apply to and in relation to any such person and to the testimony interpreted by him mutatis mutandis. (2) Any person who, in interpreting any testimony pursuant to this section, knowingly fails to translate or translates falsely any material matter is guilty of a crime and liable on conviction to imprisonment for a term of not more than 5 years. [Section 103 inserted: No. 142 of 1976 s. 7; amended: No. 70 of 2004 s. 82; No. 24 of 2005 s. 48.] [**104.** Deleted: No. 24 of 2005 s. 49.] ##### 104A. Person appointed by foreign court etc. may take or receive evidence and administer oath (1) Where an authority desires to take or receive evidence in the State, the authority may by instrument in writing appoint a person to so take or so receive evidence. (2) Subject to subsection (3), a person appointed pursuant to subsection (1) has power to take or receive evidence in the State for the authority and for that purpose has power to administer an oath. (3) Where the authority is not a court or judge a person so appointed is not empowered to take or receive evidence or administer an oath in the State unless he has first obtained the consent in writing of the Attorney General. (4) This section does not authorise the taking or receiving of evidence by a person so appointed in or for use in criminal proceedings. (5) In this section authority means any court, judge, person or body that is authorised under the law of a foreign country to take or receive evidence on oath in that country. [Section 104A inserted: No. 23 of 1967 s. 2.] ##### 105. *Oaths, Affidavits and Statutory Declarations Act 2005*, application of This Act does not limit the operation of the *Oaths, Affidavits and Statutory Declarations Act 2005* and in particular Part 2 of that Act. [Section 105 inserted: No. 24 of 2005 s. 50.] *Evidence of children and special witnesses* [Heading inserted: No. 36 of 1992 s. 8.] [**106.** Deleted: No. 24 of 2005 s. 51.] ##### 106A. Terms used In sections 106B to 106T and in Schedule 7, unless the contrary intention appears — accused — (a) in relation to an application referred to in clause 2 of Part A of Schedule 7 — (i) means any party to the proceeding, other than the affected child and an applicant who is an officer as defined in section 3 of the *Children and Community Services Act 2004*; (ii) in sections 106K(3)(a) and 106N as they apply to such an application, means any such party specified by the judge; (b) in relation to any other Schedule 7 proceeding, a person charged with an offence; affected child means — (a) in relation to an application referred to in clause 2 of Part A of Schedule 7, the child in respect of whom the application is made; (b) in relation to any other Schedule 7 proceeding, the child upon or in respect of whom it is alleged that an offence was committed, attempted or proposed; child means — (a) any boy or girl under the age of 18 years; and (b) in the absence of positive evidence as to age, any boy or girl apparently under the age of 18 years; and (c) in any proceeding in the Children’s Court, a person dealt with under the *Children’s Court of Western Australia Act 1988* section 19(2), (2AA) or (2AB); counsel includes a solicitor; criminal organisation has the meaning given in *The Criminal Code* section 221D; criminal organisation offence means an offence alleged to have been committed (whether before or after the *Criminal Organisations Control Act 2012* section 177 comes into operation) — (a) by a person who, at the time of the commission of the alleged offence, is alleged to have been a member of a criminal organisation; or (b) at the direction of a criminal organisation; or (c) in association with one or more members of a criminal organisation (whether or not those members are or have been charged with, or convicted of, the offence); or (d) for the benefit of a criminal organisation; mental impairment has the meaning given in the *Criminal Law (Mental Impairment) Act 2023* section 9(1); proceeding means any civil or criminal proceeding or any examination in any court or before any person acting judicially, and includes a special hearing under section 106K; prosecutor, in relation to an application referred to in clause 2 of Part A of Schedule 7, means the applicant in that application; Schedule 7 proceeding means a proceeding that comes within the provisions of Schedule 7; serious sexual offence means — (a) an offence under a section or Chapter of *The Criminal Code* mentioned in Part B of Schedule 7 for which the maximum penalty that may be imposed is 7 years, or more than 7 years; or (b) an offence under a repealed section of *The Criminal Code* if — (i) the acts or omissions that constituted an offence under that section are substantially the same as the acts or omissions that constitute an offence (the new offence) under a section or Chapter of *The Criminal Code* mentioned in Part B of Schedule 7; and (ii) the maximum penalty that may be imposed for the new offence is 7 years, or more than 7 years; or (c) an offence of attempting to commit an offence described in paragraph (a) or (b); special witness means a person declared to be a special witness under section 106R(1); victim, in relation to a serious sexual offence or a criminal organisation offence, means a person upon or in respect of whom it is alleged that the offence was committed, attempted or proposed; visual recording means any recording on any medium from which a moving image may be produced by any means, and includes the accompanying sound track; visual recording of evidence means a visual recording of evidence made — *[(a) deleted]* (b) in a special hearing held pursuant to an order under section 106K or 106RA; or (c) pursuant to section 106N(3a) or (5); visually recorded interview has the meaning given to that term in section 106HA(3). [Section 106A inserted: No. 36 of 1992 s. 8; amended: No. 53 of 1992 s. 37; No. 57 of 1997 s. 57; No. 71 of 2000 s. 18 and 29; No. 27 of 2002 s. 32; No. 34 of 2004 s. 251 (as amended: No. 84 of 2004 s. 85(4)); No. 46 of 2004 s. 14(1), (2) and 22(2); No. 84 of 2004 s. 41 and 85(4); No. 2 of 2008 s. 44; No. 49 of 2012 s. 177(2); No. 47 of 2020 s. 9; No. 10 of 2023 s. 342.] ##### 106B. Children under 12 may give sworn evidence (1) A child who is under the age of 12 years may in any proceeding, if the child is competent under subsection (3), give evidence on oath or after making an affirmation. (2) Irrespective of the person’s age, a person with a mental impairment may in any proceeding, if the person is competent under subsection (3), give evidence on oath or after making an affirmation. (3) A person referred to in subsection (1) or (2) is competent to take an oath or make an affirmation if in the opinion of the court or person acting judicially the person understands that — (a) the giving of evidence is a serious matter; and (b) he or she in giving evidence has an obligation to tell the truth. [Section 106B inserted: No. 36 of 1992 s. 8; amended: No. 46 of 2004 s. 15; No. 24 of 2005 s. 52; No. 2 of 2008 s. 45.] ##### 106C. Child under 12 and mentally impaired witness may give unsworn evidence A person referred to in section 106B(1) or (2) who is not competent to give evidence under section 106B(3) may give evidence without taking an oath or making an affirmation if the court or person acting judicially forms the opinion, before the evidence is given, that the person is able to give an intelligible account of events which he or she has observed or experienced. [Section 106C inserted: No. 2 of 2008 s. 46.] ##### 106D. Corroboration warning on evidence of child not to be given In any proceeding on indictment for an offence in which evidence is given by a child, the judge is not to warn the jury, or suggest to the jury in any way, that it is unsafe to convict on the uncorroborated evidence of that child because children are classified by the law as unreliable witnesses. [Section 106D inserted: No. 36 of 1992 s. 8.] ##### 106E. Child witness entitled to support (1) A child is entitled, while he or she is giving evidence in any proceeding in a court, to have near to him or her a person who may provide the child with support. (2) The person referred to in subsection (1) is to be approved by the court and is not to be a person who is a witness in or a party to the proceeding. [Section 106E inserted: No. 36 of 1992 s. 8; amended: No. 46 of 2004 s. 16.] ##### 106F. Child witness may be given assistance (1) Where a child is to give evidence in any proceeding in a court, the court may appoint a person that it considers suitable and competent to act as a communicator for the child. (2) The function of a person appointed under this section is, if requested by the judge, to communicate and explain — (a) to the child questions put to the child; and (b) to the court, the evidence given by the child. (3) A person appointed under this section is to take an oath or make a declaration, in such form as the court thinks fit, that he or she will faithfully perform his or her function under subsection (2). (4) A person appointed under this section who, while performing or purportedly performing his or her function under subsection (2), wilfully makes any false or misleading statement to the child or to the court commits a crime and is liable on conviction to imprisonment for 5 years. [Section 106F inserted: No. 36 of 1992 s. 8; amended: No. 4 of 2004 s. 58; No. 46 of 2004 s. 17; No. 2 of 2008 s. 47.] ##### 106G. Cross‑examination of protected witness by unrepresented accused (1) Where in any proceeding for an offence an accused who is not represented by counsel wishes to cross‑examine a protected witness, the accused — (a) is not entitled to do so directly; but (b) may put any question to the protected witness by stating the question to the judge or a person approved by the court, and that person is to repeat the question accurately to the protected witness. (2) Nothing in subsection (1) prevents a protected witness who is not a child from consenting to being cross‑examined by the accused directly. (3) In this section — protected witness means — (a) a child; or (b) if the proceeding is for a serious sexual offence, the victim (irrespective of the person’s age); or (c) if the proceeding is for a criminal organisation offence — (i) the victim (irrespective of the person’s age); or (ii) any witness for the prosecution (irrespective of the person’s age). [Section 106G inserted: No. 36 of 1992 s. 8; amended: No. 46 of 2004 s. 18; No. 84 of 2004 s. 82; No. 49 of 2012 s. 177(3).] ##### 106H. Child’s statement to another admissible in Sch. 7 proceedings (1) In any Schedule 7 proceeding, a relevant statement may, at the discretion of the judge, be admitted in evidence if — (a) there has been given to the accused — (i) a copy of the statement; or (ii) if the statement is not recorded in writing or electronically, details of the statement; and (b) the accused is given the opportunity to cross‑examine the affected child. (2) If a relevant statement is to be admitted, evidence of the making and content of the affected child’s statement shall be given by the person to whom the affected child made the statement. (2a) Subsection (1) does not affect the operation of section 106G. (2b) If a person to whom an affected child made a relevant statement makes a written statement in accordance with Schedule 3 clause 4(1) of the *Criminal Procedure Act 2004*, the written statement is admissible. (2c) A relevant statement recorded on a visual recording is admissible to the same extent as if it were given orally in the proceeding in accordance with the usual rules and practice of the court concerned. (3) In this section relevant statement means a statement that — (a) relates to any matter in issue in the proceeding; and (b) was made by the affected child to another person before the proceeding was commenced, whether the statement is recorded in writing or electronically or not, but does not include a visually recorded interview. [Section 106H inserted: No. 36 of 1992 s. 8; amended: No. 71 of 2000 s. 19; No. 46 of 2004 s. 14(3) and 19; No. 59 of 2004 s. 89; No. 84 of 2004 s. 37 and 82.] ##### 106HA. Visual recording of interviews with children and persons with mental impairment (1) Section 106HB applies to a visual recording of an interview with a child conducted before or after the coming into operation of section 20 of the *Criminal Law Amendment (Sexual Assault and Other Matters) Act 2004* if — (a) the interview was conducted by a person of a prescribed class; and (b) the manner in which the interview was conducted and recorded meets the prescribed requirements to the prescribed extent. (1a) Section 106HB applies to a visual recording of an interview with a person with a mental impairment conducted before or after the coming into operation of section 48 of the *Criminal Law and Evidence Amendment Act 2008* if — (a) the interview was conducted by a person of a prescribed class; and (b) the manner in which the interview was conducted and recorded meets the prescribed requirements to the prescribed extent. (2) Section 106HB applies to a visual recording of an interview with a person with a mental impairment, or a child, whether or not the interview was conducted with the consent of a parent or guardian of the person or child. (3) A visual recording of an interview with a child, or a person with a mental impairment, to which section 106HB applies is referred to as a visually recorded interview. [Section 106HA inserted: No. 46 of 2004 s. 20; amended: No. 2 of 2008 s. 48; No. 31 of 2016 s. 4.] ##### 106HB. Admissibility in criminal proceedings of visual recording of interview with child or person with mental impairment (1) In any proceeding for an offence (the proceeding) one or more visually recorded interviews may be admitted as the whole or a part of the evidence in chief of a witness — (a) irrespective of the age or maturity of the witness at the time of the proceeding; and (b) even if the witness is capable of giving evidence at the proceeding. (1a) A visually recorded interview with a person with a mental impairment is not to be admitted in the proceeding under subsection (1) unless the person is a special witness. (2) A visually recorded interview is not to be admitted in the proceeding under subsection (1) unless — (a) a transcript of it has been given to the accused; and (b) the accused and his or her counsel have, in accordance with the regulations, been given a reasonable opportunity to view the visually recorded interview. (3) Neither the accused nor his or her counsel is entitled to have possession of, or of a copy of — (a) a visually recorded interview; or (b) a visual recording of evidence on which a visually recorded interview is recorded or which incorporates a visually recorded interview. (4) A visually recorded interview is admissible under subsection (1) to the same extent as if statements made in it by the witness were given orally in the proceeding in accordance with the usual rules and practice of the court concerned. (5) If a visually recorded interview is admissible under subsection (1), the judge in the proceeding may give any directions the judge thinks fit as to — (a) the presentation of it and the excision of matters from it; and (b) the manner in which further evidence in chief of the witness may be given and in which any cross‑examination and any re‑examination of the witness is to be conducted in the proceeding. (6) A visually recorded interview is not to be admitted under subsection (1) if it has been edited or altered otherwise than in accordance with a direction under subsection (5)(a). (6a) If a visually recorded interview of a witness is admitted under subsection (1), then, while the recording is played to the court, the witness must not be present in court, or be visible or audible by closed‑circuit television or by means of any similar technology to anyone in the court other than, in the case of a trial by jury, the judge. (7) The following provisions apply if the proceeding is on indictment — (a) if a visually recorded interview is admitted under subsection (1), the judge is to instruct the jury that the procedure is a routine practice of the court and that they should not draw any inference as to the accused’s guilt from the use of the procedure; (b) if the judge is deciding whether or not to warn the jury that it may be dangerous to convict on the evidence of the complainant alone because of the length of the period between the offence and the proceeding, the admission under subsection (1) of a visually recorded interview with the complainant is not a relevant factor except to the extent that the length of the period between the offence and the admission of the official visually recorded interview may have affected the ability to test the evidence so admitted; (c) the fact that there was a visually recorded interview that the prosecutor did not adduce under subsection (1) is not to be the subject of comment to the jury by the judge, the accused or the accused’s counsel. (8) Subsection (7)(c) does not prevent a judge from directing a jury about a breach of subsection (7)(c) by the accused or the accused’s counsel, if it is in the interests of justice to do so. [Section 106HB inserted: No. 46 of 2004 s. 20; amended: No. 84 of 2004 s. 82; No. 2 of 2008 s. 49.] ##### 106HC. Regulations about visual recording of interviews with children and persons with mental impairment (1) The Governor may make regulations — (a) prescribing classes of persons for the purposes of section 106HA(1)(a) by reference to the offices or positions held by them, or their training or experience, or any combination of those criteria; and (b) prescribing requirements to be met for the purposes of section 106HA(1)(b), and the extent to which they are to be met, if section 106HB is to apply to a visual recording of an interview with a child; and (ba) prescribing classes of persons for the purposes of section 106HA(1a)(a) by reference to the offices or positions held by them, or their training or experience, or any combination of those criteria; and (bb) prescribing requirements to be met for the purposes of section 106HA(1a)(b), and the extent to which they are to be met, if section 106HB is to apply to a visual recording of an interview with a person with a mental impairment; and (c) prescribing the manner in which the application of section 106HB to a visual recording of an interview with a child, or a person with a mental impairment, may be proved in proceedings; and (d) regulating the playing, broadcasting, custody, possession, storage, copying, transcription, erasure or destruction of a visually recorded interview; and (e) regulating the records that are to be kept about a visually recorded interview; and (f) providing for access to a visually recorded interview by the prosecutor for the purposes of proceedings referred to in section 106HB; and (g) providing for access to and use of a visually recorded interview for the purposes of proceedings in the Children’s Court or the Family Court whether or not it has been admitted in evidence under section 106HB; and (h) providing for access to and use of a visually recorded interview otherwise than for the purposes of proceedings referred to in section 106HB or paragraph (g); and (i) prescribing any other matter that is necessary or convenient to be prescribed for the purposes of section 106HA or 106HB. (2) The regulations may create offences and provide, in respect of an offence so created, for the imposition of a penalty not exceeding a fine of $100 000 with or without imprisonment for a term not exceeding 12 months. [Section 106HC inserted: No. 46 of 2004 s. 20; amended: No. 2 of 2008 s. 50.] ##### 106HD. Admissibility of visually recorded interviews generally Section 106HB and regulations under section 106HC have effect in addition to, and do not limit the operation of, any other enactment or rule of law under which a visually recorded interview may be admissible in proceedings. [Section 106HD inserted: No. 46 of 2004 s. 20.] ##### 106I. Visual recording of child’s evidence, application for directions (1) Where a Schedule 7 proceeding has been commenced in a court, the prosecutor may apply to a judge of that court for an order directing — [(a) deleted] (b) that the whole of the affected child’s evidence (including cross‑examination and re‑examination) be — (i) taken at a special hearing and recorded on a visual recording; and (ii) presented to the court in the form of that visual recording, and that the affected child not be present at the proceeding. (2) The accused is to be served with a copy of, and is entitled to be heard on, an application under subsection (1). [Section 106I inserted: No. 36 of 1992 s. 8; amended: No. 71 of 2000 s. 20; No. 46 of 2004 s. 14(3), (4) and 21; No. 2 of 2008 s. 51.] [**106J.** Deleted: No. 46 of 2004 s. 22(1).] ##### 106K. Child’s evidence in full, special hearing to take and record (1) A judge who hears an application under section 106I(1)(b) may make such order as the judge thinks fit which is to include — (a) directions, with or without conditions, as to the conduct of the special hearing, including directions as to — (i) whether the affected child is to be in the courtroom, or in a separate room, when the child’s evidence is being taken; and (ii) the persons who may be present in the same room as the affected child when the child’s evidence is being taken; (b) subject to section 106HB(3), directions, with or without conditions, as to the persons, or classes of persons, who are authorised to have possession of the visual recording of the evidence, and, without limiting section 106M but subject to section 106HB(3), may include directions and conditions as to the giving up of possession and as to the playing, copying or erasure of the recording. (2) An order under subsection (1) may be varied or revoked by the judge who made the order or a judge who has jurisdiction co‑extensive with that judge. (3) At a special hearing ordered under subsection (1) — (a) the accused must not be in the same room as the affected child when the child’s evidence is being taken but must be able to — (i) observe the proceedings by means of a closed circuit television system and at all times have the means of communicating with the accused’s counsel; or (ii) in accordance with subsection (3A), listen to the proceedings by means of an audio link and at all times have the means of communicating with the accused’s counsel; and (b) no person other than a person authorised by the judge under subsection (1) is to be present in the same room as the affected child when the child’s evidence is being taken; and (c) subject to the control of the presiding judge, the affected child is to give his or her evidence and be cross‑examined and re‑examined; and (d) except as provided by this section, the usual rules of evidence apply. (3A) Subsection (3)(a)(ii) applies to the accused if, in the opinion of the judge, it is not desirable for the accused to attend court due to the accused’s health or another reason the judge thinks fit. (3B) If the accused hears the proceedings by means of an audio link under subsection (3)(a)(ii), the accused must be provided with a reasonable opportunity to view a copy of the visually recorded evidence before the evidence is presented to the court. (4) If an order is made under subsection (1), nothing in this section or section 106I prevents a visually recorded interview from being presented under section 106HB as the whole or a part of the affected child’s evidence in chief at the special hearing, and in that event the judge may give directions as to the manner in which the visually recorded interview is to be — (a) presented at the special hearing; and (b) recorded on, incorporated with or referred to in the visual recording of the evidence taken at the special hearing. (4A) A person must not make a copy of, or otherwise reproduce, the proceedings, or any part of the proceedings, heard by means of an audio link under subsection (3)(a)(ii). Penalty for this subsection: a fine of $5 000. (4B) A person must not play, supply or offer to supply any copy of, or reproduction of, the proceedings, or any part of the proceedings, heard by means of an audio link under subsection (3)(a)(ii). Penalty for this subsection: a fine of $5 000. (4C) A person must not broadcast the proceedings, or any part of the proceedings, heard by means of an audio link under subsection (3)(a)(ii). Penalty for this subsection: imprisonment for 1 year and a fine of $100 000. (5) Where circumstances so require, more than one special hearing may be held under this section for the purpose of taking the evidence of the affected child, and section 106I and this section are to be read with all changes necessary to give effect to any such requirement. [Section 106K inserted: No. 36 of 1992 s. 8; amended: No. 53 of 1992 s. 39; No. 71 of 2000 s. 22 and 29; No. 46 of 2004 s. 14(4) and 23; No. 84 of 2004 s. 82; No. 34 of 2020 s. 90.] [**106L.** Deleted: No. 71 of 2000 s. 23.] ##### 106M. Recording not to be altered without approval (1) The original visual recording of evidence made at a special hearing under section 106K for the purposes of a proceeding is not to be edited or altered in any way without the approval of a judge before it is presented to the court at the proceeding. (2) A visual recording that is edited or altered contrary to subsection (1) is inadmissible in evidence at the proceeding for which it was made. (3) In subsection (1) — judge means the judge who presided at the special hearing or a judge who has jurisdiction co‑extensive with that judge. [Section 106M inserted: No. 36 of 1992 s. 8; amended: No. 71 of 2000 s. 24 and 29; No. 46 of 2004 s. 14(4), (5) and 24.] ##### 106MA. Unauthorised possession or dealing in video‑taped evidence (1) A person commits an offence who, without authority — (a) has a visual recording of evidence in his possession; or (b) supplies or offers to supply a visual recording of evidence to any person. (2) A person commits an offence who, without authority plays, copies, erases or permits a person to copy or erase a visual recording of evidence. (3) A person has authority for the purposes of subsection (1) or (2) only if he or she has possession of a visual recording of evidence or does anything mentioned in subsection (1) or (2), as the case may be — (a) in the case of a public official, for a purpose connected with the proceeding for which the recording was made or any resulting proceeding by way of appeal; or (b) in any other case, as authorised by a judge under section 106K or 106RA. (4) A person who commits an offence against this section is liable to a fine of $5 000. [Section 106MA inserted: No. 53 of 1992 s. 40; amended: No. 46 of 2004 s. 14(4) and 22(3); No. 84 of 2004 s. 41.] ##### 106MB. Broadcast of video‑taped evidence prohibited (1) A person shall not broadcast a visual recording of evidence or any part of such a recording except with approval of the Supreme Court and in accordance with any condition attached to the approval. Penalty: $100 000 or imprisonment for 12 months, or both. (2) An approval under subsection (1) is only to be given in exceptional circumstances. (3) In subsection (1) broadcast means disseminate to the public by radio or television or otherwise by the transmission of light or sound. [Section 106MB inserted: No. 53 of 1992 s. 40; amended: No. 46 of 2004 s. 14(4).] ##### 106N. Video links or screening arrangements may be used (1) This section — (a) applies only to a Schedule 7 proceeding, but subject to any order under section 106O; and (b) is to operate only to the extent that the giving of evidence by the affected child is not provided for by an order under section 106K; and (c) has effect notwithstanding section 88 of the *Criminal Procedure Act 2004*. (2) Where the necessary facilities and equipment are available one of the following arrangements is to be made by the judge for the giving of evidence by the affected child — (a) he or she is to give evidence at a place, other than the courtroom, that is approved by the court, and the evidence is to be transmitted to the courtroom by means of video link as defined in section 120; or (b) while he or she is giving evidence the accused is to be held in a room apart from the courtroom and the evidence is to be transmitted to that room by means of video link as defined in section 120. (3) Where subsection (2)(b) applies the accused is at all times to have the means of communicating with his or her counsel. (3a) Where arrangements are made under subsection (2)(a) or (b) the affected child’s evidence is to be recorded on a visual recording. (4) Where the necessary facilities and equipment referred to in subsection (2) are not available, a screen, one‑way glass or other device is to be so placed in relation to the affected child while he or she is giving evidence that — (a) the affected child cannot see the accused; but (b) the judge, the jury (in the case of proceedings on indictment), the accused and his or her counsel can see the affected child. (5) Where arrangements are made under subsection (4) and where the necessary facilities are available to do so, the affected child’s evidence is to be recorded on a visual recording. [Section 106N inserted: No. 36 of 1992 s. 8; amended: No. 48 of 1998 s. 8; No. 71 of 2000 s. 25; No. 46 of 2004 s. 14(3); No. 84 of 2004 s. 41 and 82; No. 34 of 2020 s. 91.] ##### 106O. Court may order that s. 106N does not apply (1) Where any Schedule 7 proceeding has been commenced in a court the prosecutor may apply to a judge of that court for an order that section 106N does not apply to those proceedings. (2) A judge who hears an application under subsection (1) may grant the application if it is shown to the judge’s satisfaction that the affected child is able and wishes to give evidence in the presence of the accused in the courtroom or other room in which the proceedings are being held. (3) An order under subsection (2) may be varied or revoked. [Section 106O inserted: No. 36 of 1992 s. 8; amended: No. 2 of 2008 s. 52.] ##### 106P. Instructions to be given to jury Where in any proceeding on indictment evidence of an affected child is given in a manner described in section 106N(2) or (4), the judge is to instruct the jury that the procedure is a routine practice of the court and that they should not draw any inference as to the accused’s guilt from the use of the procedure. [Section 106P inserted: No. 36 of 1992 s. 8; amended: No. 84 of 2004 s. 82.] ##### 106Q. Identification of accused by child or special witness Where evidence of an affected child or a special witness is given in a manner described in section 106N(2) or (4), and the identification of the accused is an issue, the affected child or special witness is not to be required to be in the presence of the accused for that purpose — (a) for any longer than is necessary for that purpose; and (b) before the evidence of the affected child or special witness (including cross‑examination and re‑examination) is completed. [Section 106Q inserted: No. 36 of 1992 s. 8; amended: No. 46 of 2004 s. 25; No. 84 of 2004 s. 82.] ##### 106R. Special witnesses, measures to assist (1) A judge of a court may make an order — (a) declaring that a person who is giving, or is to give, evidence in any proceeding in that court is a special witness; and (b) directing that one or more of the arrangements referred to in subsection (4) are to be made for the giving of that evidence; and (c) providing for any incidental or related matter. (2) An order may be made under subsection (1) on application by a party to a proceeding, on notice to the other parties, or of the court’s own motion. (3) The grounds on which an order may be made are that if the person is not treated as a special witness he or she would, in the court’s opinion — (a) by reason of physical disability or mental impairment, be unlikely to be able to give evidence, or to give evidence satisfactorily; or (b) be likely — (i) to suffer severe emotional trauma; or (ii) to be so intimidated or distressed as to be unable to give evidence or to give evidence satisfactorily, by reason of age, cultural background, relationship to any party to the proceeding, the nature of the subject‑matter of the evidence, or any other factor that the court considers relevant. (3a) Despite subsection (3), in any proceeding for a serious sexual offence an order must be made under subsection (1) in respect of the victim of the offence unless the court is satisfied — (a) that subsection (3) does not apply to the person; and (b) that the person does not wish to be declared to be a special witness. (3B) Despite subsection (3), in any proceeding for a criminal organisation offence an order must be made under subsection (1) in respect of any person who is a victim of the offence or a witness for the prosecution unless the court is satisfied — (a) that subsection (3) does not apply to the person; and (b) that the person does not wish to be declared to be a special witness. (4) The arrangements that may be made under this section are — (a) that the person have near to him or her a person, approved by the court, who may provide him or her with support; (b) that the person have a communicator while he or she is giving evidence; (c) in any proceeding for an offence, that an arrangement of the kind described in section 106N(2) or (4) is to be made. (4a) Where an arrangement under subsection (4)(c) is directed to be made, section 106N applies, with any necessary changes, as if the special witness were an affected child. (4b) Where an arrangement under subsection (4)(b) is directed to be made, section 106F applies, with any necessary changes, as if the special witness were an affected child. (5) The court may at any time vary or revoke an order in force under this section. (6) This section does not apply to an affected child. (7) Where in any proceeding on indictment a person is declared to be a special witness, the judge is to instruct the jury that the making of the declaration is a routine practice of the court and that they should not draw any inference as to the accused’s guilt from it. (8) If in any proceeding before a jury for a serious sexual offence or a criminal organisation offence a person referred to in subsection (3a) or (3B), as the case requires, does not wish to be declared to be a special witness or declines any arrangement that may be made under subsection (4) — (a) the person must not be questioned in the proceeding about the fact; and (b) neither the judge, the prosecutor, the accused nor the accused’s counsel must comment on the fact to the jury. (9) Subsection (8) does not prevent a judge from directing a jury about a breach of subsection (8) by the prosecutor, the accused or the accused’s counsel, if it is in the interests of justice to do so. [Section 106R inserted: No. 36 of 1992 s. 8; amended: No. 53 of 1992 s. 41; No. 69 of 1996 s. 30; No. 71 of 2000 s. 26; No. 46 of 2004 s. 14(3), (4) and 26; No. 84 of 2004 s. 41 and 82; No. 2 of 2008 s. 53; No. 49 of 2012 s. 177(4)-(6).] ##### 106RA. Visually recording evidence of witnesses in criminal matters (1) Where a prosecution for an offence has commenced in a court, a judge of the court may make an order that the whole of the evidence (including any cross‑examination and re‑examination) of a person (the witness) whose evidence is or may be relevant in the prosecution be taken at a special hearing and recorded on a visual recording. (2) An order cannot be made under subsection (1) in respect of a person who is an affected child. (3) An order may be made under subsection (1) on application by a party to the prosecution, on notice to the other parties, or of the court’s own motion. (4) The grounds on which an order may be made under subsection (1) are — (a) that the witness has been declared to be a special witness under section 106R(1)(a); or (b) that it is likely the witness will be out of the State at the time of the proceeding for the offence and will not be able to give evidence at the proceeding by means of a video link or an audio link. (5) If an order is made under subsection (1), the order may include — (a) directions as to the conduct of the special hearing; (b) directions, with or without conditions, as to the persons, or classes of persons, who are authorised to have possession of the visual recording of the evidence; (c) directions and conditions as to the giving up of possession and as to the playing, copying or erasure of the recording. (6) If the witness has been declared to be a special witness under section 106R(1)(a), subsection (4) does not affect the operation of sections 106Q and 106R. (7) The court may at any time vary or revoke an order in force under this section. [Section 106RA inserted: No. 84 of 2004 s. 38; amended: No. 2 of 2008 s. 54.] ##### 106S. Special hearings to consider what orders should be made (1) In any proceeding in which — (a) the giving of evidence by a person; or (b) a matter affecting a person as a witness, is likely to require the making of an order or the giving of directions under sections 106E(2), 106F(1), 106HB(5), 106K, 106O, 106R or 106RA, the party who is to call that person as a witness is to apply for a special hearing for the purpose of having all such matters dealt with before the proceeding. (2) In subsection (1) special hearing in relation to a court means a hearing provided for by rules of that court for the purposes of this section. [Section 106S inserted: No. 36 of 1992 s. 8; amended: No. 71 of 2000 s. 27 and 29; No. 46 of 2004 s. 22(3) and 27; No. 84 of 2004 s. 41.] ##### 106T. Use of recordings made under s. 106K or 106N (1) Evidence of an affected child recorded on a visual recording under section 106K or 106N in relation to a Schedule 7 proceeding is admissible in any hearing in relation to that proceeding to the same extent as if it were given orally in the hearing in accordance with the usual rules and practice of the court concerned. (2) Evidence of a special witness recorded on a visual recording under section 106K or 106N in relation to a proceeding is admissible in any hearing in relation to that proceeding to the same extent as if it were given orally in the hearing in accordance with the usual rules and practice of the court concerned. (2a) If evidence of a witness is visually recorded under an order made under section 106RA(1) on the ground in section 106RA(4)(a), the evidence is admissible in any hearing in relation to the proceeding for the offence concerned to the same extent as if it were given orally in the hearing in accordance with the usual rules and practice of the court concerned. (2b) If evidence of a witness is visually recorded under an order made under section 106RA(1) on the ground in section 106RA(4)(b), the evidence is admissible in any hearing in relation to the proceeding for the offence concerned to the same extent as if it were given orally in the hearing in accordance with the usual rules and practice of the court concerned if the court is satisfied at that proceeding that — (a) the witness is dead; or (b) the witness’s medical or mental condition is such that the witness is not able to give evidence, or to give evidence satisfactorily, in the proceeding; or (c) the witness is out of the State and is not able to give evidence at the proceeding by means of a video link or an audio link, notwithstanding that the witness might return at some future time; or (d) that the witness is being kept out of the way by the accused; or (e) that all the parties consent and that the interests of justice do not require the presence of the witness. (2c) If under subsection (2a) or (2b), the evidence of a witness recorded on a visual recording is admitted into evidence in a hearing, the witness need not be present at the hearing. (2d) If there is a prospect that the witness referred to in subsection (2b) might recover or return, the court need not admit the evidence but may adjourn the hearing. (3) A judge of a court before which it is proposed to adduce evidence on a visual recording under subsection (1), (2), (2a) or (2b) in a hearing may order that the affected child or special witness or witness, as the case may be, attend the court for the purposes of giving further evidence in clarification of the evidence on the visual recording. (4) The making of an order under subsection (3) does not prevent the making of an application under section 106I or of an order under section 106K, 106N or 106RA in relation to the giving of the further evidence. (5) In this section — hearing, in relation to a proceeding, means — *[(a) deleted]* (b) the trial or hearing of the proceeding; or (c) a retrial or rehearing of the proceeding. [Section 106T inserted: No. 71 of 2000 s. 28; amended: No. 27 of 2002 s. 33; No. 46 of 2004 s. 14(3), (6) and 22(3); No. 84 of 2004 s. 39.] [Heading deleted: No. 84 of 2004 s. 41.] [**107, 108.** Deleted: No. 84 of 2004 s. 41.] *Examination of witnesses outside the State* [Heading inserted: No. 66 of 1987 s. 9.] ##### 109. Terms used (1) In this section and in sections 110 to 114, unless the contrary intention appears — Australia includes the Territories of the Commonwealth (whether internal or external) for the government of which as a Territory provision is made by any Commonwealth Act; examination includes any proceeding for the taking of evidence of a person conducted by the judicial authorities of a foreign country in relation to a request issued as a result of an order made by a court under this Act; inferior court means a court of the State, except when exercising federal jurisdiction, not being a superior court; judicial authority in relation to a place outside the State, means a court or person prescribed as an appropriate judicial authority for that place; superior court means the Supreme Court, the District Court or the Family Court of Western Australia, except when exercising federal jurisdiction. (2) In sections 109 to 114, a reference to a place outside the State shall be taken to refer to a place outside the State whether within or outside Australia. [Section 109 inserted: No. 66 of 1987 s. 9; amended: No. 20 of 2013 s. 71.] ##### 110. Superior courts may make orders for obtaining evidence (1) In any civil or criminal proceedings before a superior court, the court may, in its discretion and where it appears in the interests of justice to do so, on the application of a party to the proceeding, make, in relation to a person outside the State, an order — (a) for the examination of the person on oath or affirmation at any place outside the State before a judge of the court, an officer of the court or such other person as the court may appoint; or (b) for the issue of a commission for the examination of the person on oath or affirmation at any place outside the State; or (c) for the issue of a request to the judicial authorities of a place outside the State to take, or to cause to be taken, the evidence of the person. (2) In determining whether it is in the interests of justice to make an order under subsection (1) in relation to the taking of evidence of a person, the matters to which the court shall have regard include the following — (a) whether the person is willing or able to come to Western Australia to give evidence in the proceeding; (b) whether the person will be able to give evidence material to any issue to be tried in the proceeding; (c) whether, having regard to the interests of the parties to the proceeding, justice will be better served by granting or refusing the order. (3) Where a court makes an order under subsection (1) of the kind referred to in subsection (1)(a) or (b), the court may, in its discretion, at the time of the making of the order or at a subsequent time, give such directions as it thinks just relating to the procedure to be followed in and in relation to the examination, including directions as to the time, place and manner of the examination, and to any other matter that the court thinks relevant. (4) Where a court makes, in relation to a proceeding, an order under subsection (1) of the kind referred to in subsection (1)(c) in relation to the taking of evidence of a person, the court may, in its discretion, include in the order a request as to any matter relating to the taking of that evidence, including any of the following matters — (a) the examination, cross‑examination or re‑examination of the person, whether the evidence of the person is given orally, upon affidavit or otherwise; (b) the attendance of the legal representative of each party to the proceeding and the participation of those persons in the examination in appropriate circumstances; (c) any prescribed matter. (5) Subject to subsection (6), the court may, on such terms, if any, as it thinks fit, permit a party to the proceeding to tender as evidence in the proceeding the evidence of a person taken in an examination held as a result of an order made under subsection (1) or a record of that evidence. (6) Evidence of a person so tendered is not admissible if — (a) it appears to the satisfaction of the court at the hearing of the proceeding that the person is in Western Australia and is able to attend the hearing; or (b) the evidence would not have been admissible had it been given or produced at the hearing of the proceeding. (7) Where it is in the interests of justice to do so, the court may, in its discretion, exclude from the proceeding evidence taken in an examination held as a result of an order made under subsection (1), notwithstanding that it is otherwise admissible. (8) In this section, a reference to evidence taken in an examination includes a reference to — (a) a document produced at the examination; and (b) answers made, whether in writing, or orally and reduced to writing, to any written interrogatories presented at the examination. [Section 110 inserted: No. 66 of 1987 s. 9; amended: No. 20 of 2013 s. 72.] ##### 111. Supreme Court may make orders for obtaining evidence for inferior courts (1) The Supreme Court may, in its discretion, on the application of a party to a civil or criminal proceeding before an inferior court exercise the same power to make an order of the kind referred to in section 110(1) for the purpose of that proceeding as the Supreme Court has under that subsection for the purpose of a proceeding in the Supreme Court. (2) Section 110(5), (6) and (7) apply in relation to evidence taken in an examination held as a result of an order made by a court by virtue of this section in relation to an inferior court as if — (a) in subsections (5), (6) and (7) — (i) a reference to the proceeding were a reference to the proceeding in the inferior court; and (ii) a reference to the court were a reference to the inferior court; and (b) in subsections (5) and (7), a reference to an order made under subsection (1) were a reference to an order made by a court by virtue of this section. [Section 111 inserted: No. 66 of 1987 s. 9.] ##### 112. Exclusion of evidence in criminal proceeding Sections 109 to 114 do not affect the power of a court in a criminal proceeding to exclude evidence that has been obtained illegally or would, if admitted, operate unfairly against the accused. [Section 112 inserted: No. 66 of 1987 s. 9; amended: No. 84 of 2004 s. 82.] ##### 113. Operation of other laws Sections 109 to 114 are not intended to exclude or limit the operation of any law of the State, or of any rule or regulation made under, or in pursuance of, such a law, that makes provision for the examination of witnesses outside the State for the purpose of a proceeding in the State. [Section 113 inserted: No. 66 of 1987 s. 9.] ##### 114. Regulations and rules of court for s. 109 to 113 (1) The Governor may make regulations for or with respect to any matter that by sections 109 to 113 is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to those sections and, in particular, for or with respect to the practice and procedure of a superior court in proceedings for the making of an order under section 110 or 111. (2) The power of an authority to make rules regulating the practice and procedure of a superior court extends, for the purpose of regulating proceedings brought under sections 109 to 113 in or before that court, to making any rules, not inconsistent with any regulations made under this section, prescribing all matters necessary or convenient to be prescribed for carrying out or giving effect to those sections and, in particular, for or with respect to the practice and procedure of that superior court in proceedings for the making of an order under section 110 or 111. (3) This section does not affect any power to make regulations or rules under any other law. [Section 114 inserted: No. 66 of 1987 s. 9.] *Taking of evidence for foreign and Australian courts* [Heading inserted: No. 34 of 1989 s. 4.] ##### 115. Terms used In this section and in sections 116 to 118C — Australia includes the Territories of the Commonwealth (whether internal or external) for the government of which as a Territory provision is made by any Commonwealth Act; proceedings means — (a) proceedings in any civil or commercial matter; or (b) proceedings in or before a court in relation to the commission of an offence or an alleged offence; property includes any land, chattel or other corporeal property of any description; request includes any commission, order or other process issued by or on behalf of a requesting court; requesting court means a court or tribunal by or on whose behalf a request is issued, as referred to in section 116. [Section 115 inserted: No. 34 of 1989 s. 4.] ##### 116. Application to Supreme Court for assistance in obtaining evidence for proceedings in other court (1) If an application is made to the Supreme Court for an order for evidence to be obtained in Western Australia and the Supreme Court is satisfied — (a) that the application is made in pursuance of a request issued by or on behalf of a court or tribunal exercising jurisdiction in a place outside Western Australia; and (b) that the evidence to which the application relates is to be obtained for the purposes of proceedings which either have been instituted before the requesting court or whose institution before that court is contemplated, the provisions of sections 117 to 118B apply. (2) Sections 117 to 118B do not apply in respect of proceedings relating to the commission of an offence or an alleged offence unless the requesting court is a court of a place in Australia or of New Zealand. [Section 116 inserted: No. 34 of 1989 s. 4.] ##### 117. Supreme Court may make orders to assist in obtaining evidence (1) The Supreme Court has power, on any such application as is mentioned in section 116, by order to make such provision for obtaining evidence in Western Australia as may appear to the court to be appropriate for the purpose of giving effect to the request in pursuance of which the application is made. (2) An order under this section may require a specified person to take such steps as the court may consider appropriate for that purpose. (3) Without limiting the generality of subsections (1) and (2), an order under this section may, in particular, make provision — (a) for the examination of witnesses, either orally or in writing; (b) for the production of documents; (c) for the inspection, photographing, preservation, custody or detention of any property; (d) for the taking of samples of any property and the carrying out of any experiments on or with any property; (e) for the medical examination of any person; (f) without limiting paragraph (e), for the taking and testing of samples of blood from any person. (4) An order under this section shall not require any particular steps to be taken unless they are steps which can be required to be taken by way of obtaining evidence for the purposes of proceedings in the Supreme Court (whether or not proceedings of the same description as those to which the application for the order relates). (5) Subsection (4) does not preclude the making of an order requiring a person to give testimony (either orally or in writing) otherwise than on oath where this is asked for by the requesting court. (6) An order under this section shall not require a person — (a) to state what documents relevant to the proceedings to which the application for the order relates are or have been in the person’s possession, custody or power; or (b) to produce any documents other than particular documents specified in the order and appearing to the court making the order to be, or to be likely to be, in the person’s possession, custody or power. (7) A person who, by virtue of an order under this section, is required to attend at any place shall be entitled to the like conduct money and payment for expenses and loss of time on attendance as a witness in proceedings before the Supreme Court. [Section 117 inserted: No. 34 of 1989 s. 4.] ##### 118. Privilege of witnesses (1) A person shall not be compelled by virtue of an order under section 117 to give any evidence which the person could not be compelled to give — (a) in similar proceedings in Western Australia; or (b) in similar proceedings in the place in which the requesting court exercises jurisdiction. (2) Subsection (1)(b) does not apply unless the claim of the person in question to be exempt from giving evidence is either — (a) supported by a statement contained in the request (whether it is so supported unconditionally or subject to conditions that are fulfilled); or (b) conceded by the applicant for the order. (3) Where such a claim by any person is not so supported or conceded, the person may (subject to the other provisions of this section) be required to give the evidence to which the claim relates, but that evidence shall not be transmitted to the requesting court unless that court, on the matter being referred to it, dismisses the claim. (4) In this section, references to giving evidence include references to answering any question and to producing any document, and the reference in subsection (3) to the transmission of evidence given by a person shall be construed accordingly. [Section 118 inserted: No. 34 of 1989 s. 4.] ##### 118A. Rules of court for s. 116 to 118 (1) Rules may be made under the *Supreme Court Act 1935* for or with respect to — (a) the manner in which an application mentioned in section 116 is to be made; and (b) the circumstances in which an order can be made under section 117; and (c) the manner in which any reference mentioned in section 118(3) is to be made. (2) Any such rules may include such incidental, supplementary and consequential provisions as are necessary or convenient. [Section 118A inserted: No. 34 of 1989 s. 4.] ##### 118B. Offence If any person, in giving any testimony (either orally or in writing) otherwise than on oath, where required to do so by an order under section 117, makes a statement — (a) which the person knows to be false in a material particular; or (b) which is false in a material particular and which the person does not believe to be true, the person is guilty of a crime and is liable to imprisonment for 7 years. [Section 118B inserted: No. 34 of 1989 s. 4.] ##### 118C. Operation of other laws Sections 115 to 118C are not intended to exclude or limit the operation of any other law of the State that makes provision for the taking of evidence in the State for the purpose of a proceeding outside the State. [Section 118C inserted: No. 34 of 1989 s. 4.] *Allowances to witnesses and interpreters in specified proceedings* ##### 119. Service as witness etc., payments for criminal proceedings includes an appeal in criminal proceedings; eligible service has the meaning given in subsections (2) and (3); inquest means an inquest held under the *Coroners Act 1996*; liable person, in respect of any payment that has to be made under this section in respect of eligible service, means — (a) if the eligible service is in criminal proceedings and the prosecution was commenced by or on behalf of — (i) a local government; or (ii) a statutory body, the local government or statutory body; (b) in any other case, the State. (2) For the purposes of this section a person does eligible service if he or she is, or attends at any place in order to be, any of the following — (a) a witness who is called by the prosecutor in criminal proceedings; (b) a witness who is called by the accused person in criminal proceedings and who — (i) is a child; or (ii) is declared under section 106R to be a special witness; (c) a witness in an inquest; (d) an interpreter in criminal proceedings or an inquest; (e) a person approved under section 106E or 106R(4)(a) in any proceeding in a court; (f) a person appointed under section 106F in any proceeding in a court. (3) For the purposes of this section a person does eligible service if he or she does, or attends at any place in order to do, any of the following — (a) participate in a programme to prepare — (i) children who may be witnesses; or (ii) persons who are or may be declared under section 106R to be special witnesses, to give evidence in criminal proceedings or an inquest; (b) accompany and assist a child or person described in paragraph (a)(i) or (ii) in order to enable him or her — (i) to attend a programme described in paragraph (a); or (ii) to attend and be a witness in criminal proceedings or an inquest. (4) A person who does eligible service is entitled to be paid by the liable person the allowances and expenses that are prescribed by the regulations in respect of doing the eligible service. (5) If a person does eligible service for a period when he or she is employed by an employer under a contract of service, the employer must pay the person the earnings that he or she could reasonably expect to have been paid in that period under the contract, despite any breach of the contract caused by doing the eligible service. Penalty: a fine of $2 000. (6) An employer who in accordance with subsection (5) pays a person during any period when the person does eligible service is entitled to be paid by the liable person the fees in accordance with the regulations for the person’s service, unless the employer is in a class of employer prescribed by the regulations. (7) If a person to whom subsection (5) applies is not paid under that subsection, the person is entitled to be paid by the liable person the fees in accordance with the regulations for the eligible service, unless the person is in a class of person prescribed by the regulations. (8) A person who does eligible service but to whom subsection (5) does not apply is entitled to be paid by the liable person the fees in accordance with the regulations for the service, unless the person is in a class of person prescribed by the regulations. (9) A claim to a liable person for a payment under this section must be made and determined under the regulations. (10) The Governor may make regulations prescribing all matters that are necessary or convenient to be prescribed for the purposes of this section including regulations — (a) that confer a discretionary authority; (b) that require information in support of a claim to the State for a payment to be verified by a statutory declaration. (11) On the application of an accused person who calls a witness in criminal proceedings, the Attorney General may authorise the State to pay all or some of the amounts that would be payable under this section if the witness were called by the prosecutor in the proceedings. (12) Any amount paid under this section by the State is to be charged to the Consolidated Account. [Section 119 inserted: No. 5 of 2008 s. 53.] *Interpretation of sections 120 to 132* ##### 120. Terms used (1) In this section and sections 121 to 132, unless the contrary intention appears — audio link means facilities (including telephone) that enable, at the same time, a court at one place to hear a person giving evidence or making a submission at another place and vice versa; Australia includes the Territories of the Commonwealth (whether internal or external) for the government of which as a Territory provision is made by any Commonwealth Act; participating jurisdiction means — (a) another State or a Territory in which provisions of an Act in terms substantially corresponding to this section and sections 121 to 132, are in force; or (b) any other jurisdiction outside the State prescribed to be a participating jurisdiction; recognized court means a court or tribunal of a participating jurisdiction — (a) that is authorised by the provisions of an Act of that jurisdiction in terms substantially corresponding to this section and sections 121 to 132 to direct that evidence be taken or a submission be made by video link or audio link from this State; or (b) that is prescribed to be a recognized court; tribunal of a State or Territory means a person or body authorised by or under a law of the State or Territory to take evidence on oath or affirmation; video link means facilities (including closed circuit television) that enable, at the same time, a court at one place to see and hear a person giving evidence or making a submission at another place and vice versa; WA court means — (a) the Supreme Court; or (b) a court or tribunal established in this State under a written law. (2) In this section and sections 121 to 132, a reference to a place outside the State shall be taken to refer to a place outside the State whether within or outside Australia. [Section 120 inserted: No. 48 of 1998 s. 9.] *Use of video links or audio links by WA courts* ##### 121. WA court may take evidence or receive submission by video link or audio link (1) Subject to this section, a WA court may, on its own initiative or on the application of a party to a proceeding in or before the court, direct that in that proceeding evidence be taken or a submission be received by video link or audio link from a person at a place, whether in or outside this State, that is outside the courtroom or other place where the court is sitting. (2) The court shall not make such a direction unless satisfied the video link or audio link is available or can reasonably be made available. (2a) The court shall not make such a direction if satisfied the direction is not in the interests of justice. (3) For the purposes of taking evidence or receiving a submission by video link or audio link from a place in this State in accordance with such a direction, the place shall be taken to be part of the court. (4) For the purposes of taking evidence or receiving a submission by video link or audio link from a place in a participating jurisdiction, the court may exercise in that place any of its powers that the court is permitted, under the law of the jurisdiction, to exercise in that place. [Section 121 inserted: No. 48 of 1998 s. 9; amended: No. 5 of 2008 s. 54.] [Section 121. Modifications to be applied in order to give effect to Cross-border Justice Act 2008: section altered 1 Nov 2009. See endnote 1M.] ##### 122. Counsel entitled to practise A person who is entitled to practise as a legal practitioner in a participating jurisdiction is entitled to practise as a legal practitioner — (a) in relation to the examination, cross‑examination or re‑examination of a witness in the participating jurisdiction whose evidence is being given by video link or audio link before a WA court; and (b) in relation to the making of a submission by video link or audio link from the participating jurisdiction in a proceeding before a WA court. [Section 122 inserted: No. 48 of 1998 s. 9; amended: No. 65 of 2003 s. 34; No. 21 of 2008 s. 662; No. 9 of 2022 s. 424.] *Use of video links or audio links in this State by recognized courts* ##### 123. Recognized court may take evidence or receive submission from person in this State A recognized court may, for the purposes of a proceeding in or before it, take evidence or receive a submission by video link or audio link from a person in this State. [Section 123 inserted: No. 48 of 1998 s. 9.] ##### 124. Recognized court’s powers (1) For the purposes of the proceeding the recognized court may exercise in this State any of its powers in relation to the taking of evidence or the receipt of a submission except its powers — (a) to punish for contempt; and (b) to enforce or execute its orders or process. (2) The laws of the participating jurisdiction (including rules of court) that apply to the proceeding in that jurisdiction also apply, by force of this subsection, to the practice and procedure of the recognized court in taking evidence or receiving a submission by video link or audio link from a person in this State. (3) For the purposes of the court exercising its powers under subsection (1), the place in this State where the evidence is given or the submission is made shall be taken to be part of the court. [Section 124 inserted: No. 48 of 1998 s. 9.] ##### 125. Recognized court may make orders Without limiting section 124, the recognized court may, by order — (a) direct that the proceeding, or a part of the proceeding, be conducted in private; or (b) require a person to leave a place in this State where the giving of evidence or the making of a submission is taking place or is going to take place; or (c) prohibit or restrict the publication of evidence given in the proceeding or of the name of a party to, or a witness in, the proceeding. [Section 125 inserted: No. 48 of 1998 s. 9.] ##### 126. Enforcement of order under s. 125 (1) An order under section 125 shall be complied with. (2) Subject to rules of court, the order may be enforced by the Supreme Court as if the order were an order of that court. (3) Without limiting subsection (2), a person who contravenes the order — (a) shall be taken to be in contempt of the Supreme Court; and (b) is punishable accordingly, unless the person establishes that the contravention should be excused. [Section 126 inserted: No. 48 of 1998 s. 9.] ##### 127. Privileges, protection and immunity of participants in proceedings in recognized court (1) A person acting judicially in a proceeding in or before a recognized court has, in connection with evidence being taken or a submission being received by video link or audio link from a person in this State, the same privileges, protection and immunity as a judge of the Supreme Court. (2) A person appearing as a legal practitioner in a proceeding in or before a recognized court has, in connection with evidence being taken or a submission being received by video link or audio link from a person in this State, the same protection and immunity as a barrister has in appearing for a party in a proceeding, in or before the Supreme Court. (3) A person appearing as a witness in a proceeding in or before a recognized court by video link or audio link from this State has the same protection as a witness in a proceeding in or before the Supreme Court. [Section 127 inserted: No. 48 of 1998 s. 9.] ##### 128. Recognized court may administer an oath in the State (1) A recognized court may, for the purpose of obtaining in the proceeding by video link or audio link the testimony of a person in this State, administer an oath or affirmation in accordance with the practice and procedure of the recognized court. (2) Evidence given by a person on oath or affirmation so administered is, for the purposes of *The Criminal Code*, testimony given in a judicial proceeding. [Section 128 inserted: No. 48 of 1998 s. 9.] ##### 129. Assistance to recognized court An officer of a WA court may, at the request of a recognized court — (a) attend at the place in the State where evidence is to be or is being given, or submissions are to be or are being made, in the proceeding; and (b) take such action as the recognized court directs to facilitate the proceeding; and (c) assist with the administering by the recognized court of an oath or affirmation. [Section 129 inserted: No. 48 of 1998 s. 9.] ##### 130. Contempt of recognized court (1) A person shall not, while evidence is being given or a submission is being made in this State by video link or audio link, in the proceeding in a recognized court — (a) threaten, intimidate or wilfully insult any of the following: (i) a person acting judicially in the proceeding; or (ii) a master, registrar, deputy registrar or other officer of that court who is taking part in or assisting in the proceeding; or (iii) a person appearing in the proceeding as a legal practitioner; or (iv) a witness in the proceeding; or (v) a juror in the proceeding; or (b) wilfully interrupt or obstruct the proceeding; or (c) wilfully and without lawful excuse disobey an order or direction of the court. (2) A person who contravenes subsection (1) is taken to commit a contempt of the Supreme Court and is punishable accordingly by that court. [Section 130 inserted: No. 48 of 1998 s. 9.] *General provisions relating to the use of video links or audio links* ##### 131. Regulations for fees and expenses relating to use of video link or audio link The Governor may make regulations with respect to fixing and requiring the payment of fees and expenses relating to the taking of evidence or receiving of a submission by video link or audio link. [Section 131 inserted: No. 48 of 1998 s. 9.] ##### 132. Operation of other laws Sections 120 to 132 are not intended to exclude or limit the operation of any other law of the State that makes provision for the taking of evidence or making of a submission — (a) in the State for the purpose of a proceeding in the State; and (b) outside the State for the purpose of a proceeding in the State; and (c) in the State for the purpose of a proceeding outside the State. [Section 132 inserted: No. 48 of 1998 s. 9 4.] *Regulations and rules of court for purposes of Courts and Tribunals (Electronic Processes Facilitation) Act 2013 Part 2* [Heading inserted: No. 20 of 2013 s. 73.] ##### 133. Regulations and rules of court for purposes of *Courts and Tribunals (Electronic Processes Facilitation) Act 2013* Part 2 (1) The Governor may make regulations prescribing all matters that are necessary or convenient to be prescribed for giving effect to the purposes of the *Courts and Tribunals (Electronic Processes Facilitation) Act 2013* Part 2 as applied by section 5A. (2) The power of an authority to make rules of court extends to making rules of court prescribing all matters that are necessary or convenient to be prescribed for giving effect to the purposes of the *Courts and Tribunals (Electronic Processes Facilitation) Act 2013* Part 2 as applied by section 5A. (3) The *Courts and Tribunals (Electronic Processes Facilitation) Act 2013* section 20(3) and (4) apply as if the power conferred by subsections (1) and (2) of this section were a power conferred by section 20(1) or (2) of that Act. (4) This section does not limit or affect any other power in this Act or any other written law to make regulations or rules of court. [Section 133 inserted: No. 20 of 2013 s. 73.] ##### 134. Review of amendment made by *Family Violence Legislation Reform Act 2020* (1) The Minister must review the operation and effectiveness of the amendment made to this Act by the *Family Violence Legislation Reform Act 2020*, and prepare a report based on the review, as soon as practicable after the 3rd anniversary of the day on which the *Family Violence Legislation Reform Act 2020* section 93 comes into operation. (2) The Minister must cause the report to be laid before each House of Parliament as soon as practicable after it is prepared, but not later than 12 months after the 3rd anniversary. (3) The Minister must transmit a copy of the report to the Clerk of a House of Parliament if — (a) the report has been prepared; and (b) the Minister is of the opinion that the House will not sit during the period of 21 days after the finalisation of the report. (4) A copy of the report transmitted to the Clerk of a House is taken to have been laid before that House. (5) The laying of a copy of a report that is taken to have occurred under subsection (4) must be recorded in the Minutes, or Votes and Proceedings, of the House on the first sitting day of the House after the receipt of the copy by the Clerk. [Section 134 inserted: No. 30 of 2020 s. 95.] [The First Schedule omitted under the Reprints Act 1984 s. 7(4)(f).] The Second Schedule [Section 9]