Tasmania act

Evidence Act 2001

In ForceTAS

Jurisdiction

Tasmania

Act Number

76 of 2001

Collection

act

Plain English Summary

8/10 complexity

This Act sets the rules Tasmanian courts must use to decide what evidence is admissible in civil and criminal proceedings, defines key terms, and creates procedures for notices, privilege, competence/compellability, expert/analyst certificates, and special rules on tendency/ coincidence and credibility. It affects parties, witnesses, lawyers, prosecutors, police and courts. Mechanically, it shifts procedural costs and tasks onto parties (notice, disclosure, calling certifiers) and gives judges discretion to admit, exclude or condition evidence; non‑compliance can lead to exclusion or other court orders (see ss97–100,168–177,169,177A).

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What it does

The Evidence Act 2001 (Tas) is a comprehensive code governing the admission, use, and presentation of evidence in Tasmanian courts. Enacted to create a uniform evidence regime consistent with the Commonwealth Evidence Act 1995, it replaces many common law rules with statutory provisions grounded in principles of relevance, reliability, fairness, and efficiency. At its core, the Act determines what material a court (including judges and juries) may consider when deciding facts in issue in both civil and criminal proceedings.

The Act is structured into five chapters. Chapter 1 contains preliminary matters, including an extensive dictionary of defined terms in s.3 (over 50 definitions, many cross-referencing the Legal Profession Act 2007, Criminal Code, and Commonwealth legislation). It applies to all proceedings in a "Tasmanian court" (defined in s.3(1) to include the Supreme Court and other courts created by Parliament, including those exercising federal jurisdiction), with limited exceptions for sentencing (s.4(2)) where the court may direct that the rules apply only to specific facts.

Chapter 2 addresses adducing evidence. Part 1 (ss.12-46) covers witnesses, including competence and compellability (ss.12-19, with special rules for spouses in criminal matters under ss.18-19 and exceptions for sexual offences under s.19), oaths and affirmations (ss.21-25), general rules for questioning (ss.26-36), and specific rules for examination-in-chief, re-examination, and cross-examination (ss.37-46). Notably, s.13 (as substituted by the Evidence Amendment Act 2010) sets out a test for lack of capacity, presuming competence unless the contrary is proved, and allows unsworn evidence for children or those without capacity to understand the oath if the court gives specified warnings.

Current sections

Direct links to the current provisions in Evidence Act 2001.

279

Chapter 1

Preliminary

Chapter 1 Preliminary

Part 1

Formal matters

Part 1 Formal matters

Short title

1 Short title

This Act may be cited as the Evidence Act 2001 .

Commencement

2 Commencement

This Act commences on a day to be proclaimed.

Numbering of Act

2A Numbering of Act

(1) In order to maintain consistent numbering between this Act and the Evidence Act 1995 of the Commonwealth –

(a) if the Commonwealth Act contains a section that is not in this Act, that section number and heading are included in this Act despite the omission of the body of the section; and

(b) if this Act contains a section that is not in the Commonwealth Act, that section is numbered so as to maintain consistency in numbering between sections common to both Acts.

(2) A section number and heading referred to in subsection (1)(a) form part of this Act.

| Note 1: A note appears under each heading of a kind referred to in subsection (1)(a) describing the omitted section of the Commonwealth Act. | | Note 2: A note appears under each section of a kind referred to in subsection (1)(b) highlighting the non-appearance of an equivalent section in the Commonwealth Act. | | Note 3: This section does not appear in the Commonwealth Act. |

Interpretation

3 Interpretation

(1) In this Act –

admission means a previous representation that is –

(a) made by a person who is or becomes a party to a proceeding, including a defendant in a criminal proceeding; and

(b) adverse to the person's interest in the outcome of the proceeding;

analysis includes examination, testing, handling and storage done by, or under the supervision or direction of, an analyst;

analyst means –

(a) the Government Analyst; or

(b) an analyst appointed for the purposes of any Act of the Commonwealth, of a State or Territory of the Commonwealth or of any other jurisdiction; or

(c) a person appointed, authorised or otherwise determined for the purposes of such Act to perform an analysis; or

(d) any other person who has the appropriate qualifications or experience to perform an analysis;

associated defendant, in relation to a defendant in a criminal proceeding, means a person against whom a prosecution has been instituted, but not yet completed or terminated, for –

(a) an offence that arose in relation to the same events as those in relation to which the offence for which the defendant is being prosecuted arose; or

(b) an offence that relates to, or is connected with, the offence for which the defendant is being prosecuted;

Australia includes the external Territories;

Australian court means –

(a) the High Court; or

(b) a court exercising federal jurisdiction; or

(c) a court of a State or Territory; or

(d) a judge, justice or arbitrator under an Australian law; or

(e) a person or body authorised by an Australian law, or by consent of parties, to hear, receive and examine evidence; or

(f) a person or body that, in exercising a function under an Australian law, is required to apply the laws of evidence;

Australian law means a law of the Commonwealth or a State or Territory of the Commonwealth;

[Section 3 Subsection (1) amended by No. 46 of 2010, s. 4, Applied:01 Jan 2011] Australian lawyer has the meaning it has in the Legal Profession Act 2007 ;

[Section 3 Subsection (1) amended by No. 46 of 2010, s. 4, Applied:01 Jan 2011] Australian legal practitioner has the meaning it has in the Legal Profession Act 2007 ;

Australian or overseas proceedings means a proceeding (however described) in an Australian court or a foreign court;

Australian Parliament means Parliament of the Commonwealth or another State or the Legislative Assembly of a Territory;

[Section 3 Subsection (1) amended by No. 46 of 2010, s. 4, Applied:01 Jan 2011] Australian practising certificate has the meaning it has in the Legal Profession Act 2007 ;

[Section 3 Subsection (1) amended by No. 46 of 2010, s. 4, Applied:01 Jan 2011] Australian-registered foreign lawyer has the meaning it has in the Legal Profession Act 2007 ;

Australian Statistician means the Australian Statistician referred to in section 5(2) of the Australian Bureau of Statistics Act 1975 of the Commonwealth and includes any person to whom the powers of the Australian Statistician under section 12 of the Census and Statistics Act 1905 of the Commonwealth have been delegated;

business means a business referred to in section 3A ;

case of a party means the facts in issue in respect of which the party bears the legal burden of proof;

child means a child of any age and includes the meaning given in subsection (13) ;

civil penalty means civil penalty referred to in subsection (6) ;

civil proceeding means a proceeding other than a criminal proceeding;

coincidence evidence means evidence of a kind referred to in section 98(1) that a party seeks to have adduced for the purpose referred to in that subsection;

coincidence rule means the rule referred to in section 98 ;

Commonwealth-owned body corporate means a body corporate that, were the Commonwealth a body corporate, would, for the purposes of the Corporations Law, be –

(a) a wholly-owned subsidiary of the Commonwealth; or

(b) a wholly-owned subsidiary of another body corporate that is under this definition a Commonwealth-owned body corporate because of the application of paragraph (a) , including the application of that paragraph together with another application or other applications of this paragraph;

Commonwealth record means a record made by –

(a) a Department within the meaning of the Public Service Act 1999 of the Commonwealth; or

(b) the Parliament, a House of the Parliament, a committee of a House of the Parliament or a committee of the Parliament; or

(c) a person or body, other than a Legislative Assembly, holding office or exercising power under or because of the Commonwealth Constitution or a law of the Commonwealth for the purpose of exercising that power; or

(d) a body or organisation, other than a Legislative Assembly, whether incorporated or unincorporated, established for a public purpose –

(i) by or under a law of the Commonwealth or of a Territory (other than the Australian Capital Territory, the Northern Territory or Norfolk Island); or

(ii) by the Governor-General; or

(iii) by a Minister of the Commonwealth; or

(e) any other body or organisation that is a Commonwealth-owned body corporate –

and kept or maintained by a person, body or organisation of a kind referred to in paragraph (a) , (b) , (c) , (d) or (e) but does not include a record made by a person or body holding office, or exercising power, under or because of the Commonwealth Constitution or a law of the Commonwealth if the record was not made in connection with holding the office concerned, or exercising the power concerned;

counselling communication means a counselling communication referred to in section 127B(1) ;

court means a Tasmanian court;

credibility of a person who has made a representation that has been admitted in evidence means the credibility of the representation, and includes the person's ability to observe or remember facts and events about which the person made the representation;

credibility of a witness means the credibility of any part or all of the evidence of the witness, and includes the witness's ability to observe or remember facts and events about which the witness has given, is giving or is to give, evidence;

[Section 3 Subsection (1) amended by No. 46 of 2010, s. 4, Applied:01 Jan 2011] credibility evidence is defined in section 101A ;

credibility rule means the rule referred to in section 102 ;

criminal proceeding means a prosecution for an offence and includes –

(a) a proceeding for the committal of a person for trial or sentence for an offence; and

(b) a proceeding relating to bail –

but does not include a prosecution that is a prescribed taxation offence within the meaning of Part III of the Taxation Administration Act 1953 of the Commonwealth;

cross-examination means cross-examination referred to in subsection (3) ;

cross-examiner means a party who is cross-examining a witness;

[Section 3 Subsection (1) amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004]

document means any record of information and includes –

(a) anything on which there is writing; or

(b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; or

(c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else; or

(d) any map, plan, drawing or photograph;

[Section 3 Subsection (1) amended by No. 46 of 2010, s. 4, Applied:01 Jan 2011] electronic communication has the meaning it has in the Electronic Transactions Act 2000 ;

examination in chief means examination in chief referred to in subsection (2) ;

exercise of a function includes performance of a duty;

fax, in relation to a document, means a copy of the document that has been reproduced by facsimile telegraphy;

foreign court means any court, including any person or body authorised to take or receive evidence, whether on behalf of a court or otherwise and whether or not the person or body is empowered to require the answering of questions or the production of documents, of a foreign country or a part of such a country;

function includes power, authority or duty;

Governor of a State includes any person for the time being administering the Government of the State;

Governor-General means the Governor-General of the Commonwealth and includes any person for the time being administering the Government of the Commonwealth;

hearsay rule means the rule referred to in section 59 ;

identification evidence means evidence that is –

(a) an assertion by a person to the effect that a defendant was, or resembles, visually, aurally or otherwise, a person who was, present at or near a place where –

(i) the offence for which the defendant is being prosecuted was committed; or

(ii) an act connected to that offence was done –

at or about the time at which the offence was committed or the act was done, being an assertion that is based wholly or partly on what the person making the assertion saw, heard or otherwise perceived at that place and time; or

(b) a report, whether oral or in writing, of such an assertion;

investigating official means –

(a) a police officer, other than a police officer who is engaged in covert investigations under the orders of a superior; or

(b) a person appointed by or under an Australian law, other than a person who is engaged in covert investigations under the orders of a superior and whose functions include the prevention or investigation of offences;

joint sitting means –

(a) in relation to the Parliament of the Commonwealth, a joint sitting of the members of the Senate and of the House of Representatives convened by the Governor-General under section 57 of the Commonwealth Constitution or under any other Act of the Commonwealth; or

(b) in relation to a bicameral legislature of a State, a joint sitting of both Houses of the legislature convened under a law of the State;

judge, in relation to a proceeding, means the judge, magistrate or other person before whom the proceeding is being held;

law means a law referred to in subsection (11) ;

[Section 3 Subsection (1) amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] [Section 3 Subsection (1) amended by No. 46 of 2010, s. 4, Applied:01 Jan 2011]

leading question means a question asked of a witness that –

(a) directly or indirectly suggests a particular answer to the question; or

(b) assumes the existence of a fact the existence of which is in dispute in the proceeding and as to the existence of which the witness has not given evidence before the question is asked;

[Section 3 Subsection (1) amended by No. 46 of 2010, s. 4, Applied:01 Jan 2011] legal counsel means an Australian lawyer employed in or by a government agency or other body who by law is exempted from holding an Australian practising certificate, or who does not require an Australian practising certificate, to engage in legal practice in the course of that employment;

Legislative Assembly means –

(a) any present or former Legislative Assembly of a Territory; and

(b) the Australian Capital Territory House of Assembly;

member of the Australian Federal Police includes a special member or a staff member of the Australian Federal Police;

offence means an offence against or arising under an Australian law;

official questioning means questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence;

opinion rule means the rule referred to in section 76 ;

[Section 3 Subsection (1) amended by No. 46 of 2010, s. 4, Applied:01 Jan 2011] overseas-registered foreign lawyer has the meaning it has in Part 2.6 of Chapter 2 of the Legal Profession Act 2007 ;

parent includes a parent referred to in subsection (14) ;

police officer means –

(a) a member of the Australian Federal Police; or

(b) a member of the police force of a State or Territory of the Commonwealth;

postal article means a postal article as defined in the Australian Postal Corporation Act 1989 of the Commonwealth;

previous representation means a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced;

prior consistent statement of a witness means a previous representation that is consistent with evidence given by the witness;

prior inconsistent statement of a witness means a previous representation of the witness that is inconsistent with evidence given by the witness;

probative value means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue;

[Section 3 Subsection (1) amended by No. 46 of 2010, s. 4, Applied:01 Jan 2011] prosecutor means a person who institutes or is responsible for the conduct of a prosecution;

public document means a document that –

(a) forms part of the records of the Crown in any of its capacities; or

(b) forms part of the records of the government of a foreign country; or

(c) forms part of the records of a person or body holding office or exercising a function under or because of the Commonwealth Constitution, an Australian law or a law of a foreign country; or

(d) is being kept by or on behalf of the Crown, such a government or such a person or body –

and includes the records of the proceedings of, and papers presented to –

(e) an Australian Parliament, a House of an Australian Parliament, a committee of such a House or a committee of an Australian Parliament; and

(f) a legislature of a foreign country, including a House or committee, however described, of such a legislature;

re-examination means re-examination referred to in subsection (4) ;

representation includes –

(a) an express or implied representation, whether oral or in writing; and

(b) a representation to be inferred from conduct; and

(c) a representation not intended by its maker to be communicated to or seen by another person; and

(d) a representation that for any reason is not communicated;

seal includes a stamp;

serious offence means –

(a) in the case of a defendant of or over the age of 18 years, an indictable offence that cannot be dealt with summarily without the consent of the defendant; and

(b) in the case of a defendant under the age of 18 years, any indictable offence for which the defendant has been detained;

sexual offence means –

(a) [Section 3 Subsection (1) amended by No. 69 of 2003, Sched. 1, Applied:15 Dec 2003] [Section 3 Subsection (1) amended by No. 2 of 2023, s. 19, Applied:20 Apr 2023] [Section 3 Subsection (1) amended by No. 17 of 2024, s. 22, Applied:01 Nov 2024] a crime under section 122 , 124 , 124A , 124B , 124C , 125 , 125A , 125B , 126 , 127 , 127A , 128 , 129 , 133 or 185 of the Criminal Code; or

(b) a crime under section 298, 299 or 300 of the Criminal Code in relation to a crime specified in a section referred to in paragraph (a) ; or

(c) an offence under section 35(3) of the Police Offences Act 1935 ;

[Section 3 Subsection (1) amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] spouse, in relation to a person, includes the person who is in a significant relationship, within the meaning of the Relationships Act 2003 , with that person;

[Section 3 Subsection (1) amended by No. 31 of 2012, s. 12, Applied:01 May 2013] surrogate child, in relation to another person, means a person –

(a) who is a child of the other person by virtue of the operation of section 26(1) of the Surrogacy Act 2012 or a law, of another State or a Territory or a foreign country, that corresponds to that Act; and

(b) who has not ceased to be a child of the other person under that Act or law;

[Section 3 Subsection (1) amended by No. 31 of 2012, s. 12, Applied:01 May 2013] surrogate parent, in relation to another person, means a person –

(a) who is a parent of the other person by virtue of the operation of section 26(1) of the Surrogacy Act 2012 or a law, of another State or a Territory or a foreign country, that corresponds to that Act; and

(b) who has not ceased to be a parent of the other person under that Act or law;

Tasmanian court means –

(a) the Supreme Court; or

(b) any other court created by Parliament –

(including such a court exercising federal jurisdiction) and includes any person or body (other than a court) that, in exercising a function under the law of the State, is required to apply the laws of evidence;

tendency evidence means evidence of a kind referred to in section 97(1) that a party seeks to have adduced for the purpose referred to in that subsection;

tendency rule means the rule referred to in section 97(1) ;

[Section 3 Subsection (1) amended by No. 46 of 2010, s. 4, Applied:01 Jan 2011] traditional laws and customs of an Aboriginal or Torres Strait Islander group (including a kinship group) includes any of the traditions, customary laws, customs, observances, practices, knowledge and beliefs of the group;

witness includes a witness referred to in subsections (7) and (8) .

(2) A reference in this Act to examination in chief of a witness is a reference to the questioning of a witness by the party who called the witness to give evidence, not being questioning that is re-examination.

(3) A reference in this Act to cross-examination of a witness is a reference to the questioning of a witness by a party other than the party who called the witness to give evidence.

(4) A reference in this Act to re-examination of a witness is a reference to the questioning of a witness by the party who called the witness to give evidence, being questioning (other than further examination in chief with the leave of the court) conducted after the cross-examination of the witness by another party.

(5) If a party has recalled a witness who has already given evidence, a reference in this Act to re-examination of a witness does not include a reference to the questioning of the witness by that party before the witness is questioned by another party.

(6) For the purposes of this Act, a person is taken to be liable to a civil penalty if, in an Australian or overseas proceeding (other than a criminal proceeding), the person would be liable to a penalty arising under an Australian law or a law of a foreign country.

(7) A reference in this Act to a witness includes a reference to a party giving evidence.

(8) A reference in this Act to a witness who has been called by a party to give evidence includes a reference to the party giving evidence.

(9) A reference in subsections (7) and (8) to a party includes a defendant in a criminal proceeding.

(10) A reference in this Act to a document includes a reference to –

(a) any part of the document; or

(b) any copy, reproduction or duplicate of the document or of any part of the document; or

(c) any part of such a copy, reproduction or duplicate.

(11) A reference in this Act to a law of the Commonwealth, a State, a Territory or a foreign country is a reference to a law (whether written or unwritten) of or in force in that place.

(12) A reference in this Act to an Australian law is a reference to an Australian law (whether written or unwritten) of or in force in Australia.

(13) A reference in this Act to a child of a person includes a reference to –

(a) [Section 3 Subsection (13) amended by No. 31 of 2012, s. 12, Applied:01 May 2013] an adopted child, surrogate child or ex-nuptial child of the person; or

(b) a child living with a person as if the child were a member of the person's family.

(14) A reference in this Act to a parent of a person includes a reference to –

(a) [Section 3 Subsection (14) amended by No. 31 of 2012, s. 12, Applied:01 May 2013] an adoptive parent, or surrogate parent, of the person; or

(b) if the person is an ex-nuptial child, the person's natural father; or

(c) the person with whom a child is living as if the child were a member of the person's family.

| Note: The provisions in subsections (2) to (14) are contained in the Dictionary in the Evidence Act 1995 of the Commonwealth. |

References to business

3A References to business

(1) A reference in this Act to a business includes a reference to the following:

(a) a profession, calling, occupation, trade or undertaking;

(b) an activity engaged in or carried on by the Crown in any of its capacities;

(c) an activity engaged in or carried on by the government of a foreign country;

(d) an activity engaged in or carried on by a person or body holding office or exercising power under or because of the Commonwealth Constitution, an Australian law or a law of a foreign country, being an activity engaged in or carried on in the performance of the functions of the office or in the exercise of the power (otherwise than in a private capacity);

(e) the proceedings of an Australian Parliament, a House of an Australian Parliament, a committee of such a House or a committee of an Australian Parliament;

(f) the proceedings of a legislature of a foreign country, including a House or committee (however described) of such a legislature.

(2) A reference in this Act to a business also includes a reference to –

(a) a business that is not engaged in or carried on for profit; or

(b) a business engaged in or carried on outside Australia.

| Note: The provisions in this section are contained in the Dictionary in the Evidence Act 1995 of the Commonwealth. |

Unavailability of persons

3B Unavailability of persons

(1) [Section 3B Subsection (1) substituted by No. 46 of 2010, s. 5, Applied:01 Jan 2011] For the purposes of this Act, a person is taken not to be available to give evidence about a fact if –

(a) the person is dead; or

(b) the person is, for any reason other than the application of section 16 , not competent to give the evidence; or

(c) the person is mentally or physically unable to give the evidence and it is not reasonably practicable to overcome that inability; or

(d) it would be unlawful for the person to give the evidence; or

(e) a provision of this Act prohibits the evidence being given; or

(f) all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or secure his or her attendance, but without success; or

(g) all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success.

(2) In all other cases the person is taken to be available to give evidence about the fact.

| Note: The provisions in this section are contained in the Dictionary in the Evidence Act 1995 of the Commonwealth. |

Unavailability of documents and things

3C Unavailability of documents and things

For the purposes of this Act, a document or thing is taken not to be available to a party if and only if –

(a) it cannot be found after reasonable inquiry and search by the party; or

(b) it was destroyed by the party, or by a person on behalf of the party, otherwise than in bad faith, or was destroyed by another person; or

(c) it would be impractical to produce the document or thing during the course of the proceeding; or

(d) production of the document or thing during the course of the proceeding could render a person liable to conviction for an offence; or

(e) it is not in the possession or under the control of the party and –

(i) it cannot be obtained by any judicial procedure of the court; or

(ii) it is in the possession or under the control of another party to the proceeding concerned who knows or might reasonably be expected to know that evidence of the contents of the document, or evidence of the thing, is likely to be relevant in the proceeding; or

(iii) it was in the possession or under the control of such a party at a time when that party knew or might reasonably be expected to have known that such evidence was likely to be relevant in the proceeding.

| Note: The provisions in this section are contained in the Dictionary in the Evidence Act 1995 of the Commonwealth. |

Representations in documents

3D Representations in documents

For the purposes of this Act, a representation contained in a document is taken to have been made by a person if –

(a) the document was written, made or otherwise produced by the person; or

(b) the representation was recognised by the person as his or her representation by signing, initialling or otherwise marking the document.

| Note: The provisions in this section are contained in the Dictionary in the Evidence Act 1995 of the Commonwealth. |

Part 2

Application of Act

Part 2 Application of Act

Courts and proceedings to which Act applies

4 Courts and proceedings to which Act applies

(1) This Act applies to all proceedings in a Tasmanian court including proceedings that –

(a) relate to bail; or

(b) are interlocutory proceedings or proceedings of a similar kind; or

(c) are heard in chambers; or

(d) subject to subsection (2) , relate to sentencing.

(2) If a proceeding relates to sentencing –

(a) this Act applies only if the court directs that the law of evidence applies in the proceeding; and

(b) if the court specifies in the direction that the law of evidence applies only in relation to specified matters, the direction has effect accordingly.

(3) The court must make a direction referred to in subsection (2) if –

(a) a party to the proceeding applies for a direction in relation to the proof of a fact; and

(b) in the court's opinion, the proceeding involves proof of that fact and the fact is or will be significant in determining a sentence to be imposed in the proceeding.

(4) The court must make a direction if it considers it appropriate in the interest of justice.

Extended application of certain provisions

5 Extended application of certain provisions

Note: The Evidence Act 1995 of the Commonwealth includes a provision that extends the application of specified provisions of the Commonwealth Act to proceedings in all Australian courts.

Territories

6 Territories

Note: The Evidence Act 1995 of the Commonwealth includes a provision extending that Act to each external Territory.

Act binds Crown

7 Act binds Crown

This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities.

Operation of other Acts

8 Operation of other Acts

This Act does not affect the operation of the provisions of any other Act.

Application of common law and equity

9 Application of common law and equity

(1) This Act does not affect the operation of a principle or rule of common law or equity in relation to evidence in a proceeding to which this Act applies, except so far as this Act provides otherwise expressly or by necessary intendment.

(2) Without limiting subsection (1) , this Act does not affect the operation of such a principle or rule so far as it relates to any of the following:

(a) the admission or use of evidence of reasons for a decision of a member of a jury, or of the deliberations of a member of a jury in relation to such a decision, in a proceeding by way of appeal from a judgment, decree, order or sentence of a court;

(b) the operation of a legal or evidential presumption that is consistent with this Act;

(c) a court's power to dispense with the operation of a rule of evidence or procedure in an interlocutory proceeding.

Parliamentary privilege preserved

10 Parliamentary privilege preserved

(1) This Act does not affect the law relating to the privileges of any Australian Parliament or any House of any Australian Parliament.

(2) In particular, section 15(2) does not affect, and is in addition to, the law relating to such privileges.

General powers of court

11 General powers of court

(1) The power of a court to control the conduct of a proceeding is not affected by this Act, except where this Act provides otherwise expressly or by necessary intendment.

(2) The powers of a court with respect to abuse of process in a proceeding are not affected.

Chapter 2

Adducing evidence

Chapter 2 Adducing evidence

Division 1

Competence and compellability of witnesses

Division 1 Competence and compellability of witnesses

Competence and compellability

12 Competence and compellability

Except as otherwise provided by this Act –

(a) every person is competent to give evidence; and

(b) a person who is competent to give evidence about a fact is compellable to give that evidence.

Competence: lack of capacity

13 Competence: lack of capacity

[Section 13 Substituted by No. 46 of 2010, s. 6, Applied:01 Jan 2011]

(1) A person is not competent to give evidence about a fact if, for any reason (including a mental, intellectual or physical disability) –

(a) the person does not have the capacity to understand a question about the fact; or

(b) the person does not have the capacity to give an answer that can be understood to a question about the fact –

and that incapacity cannot be overcome.

(2) A person who, because of subsection (1) , is not competent to give evidence about a fact may be competent to give evidence about other facts.

(3) A person who is competent to give evidence about a fact is not competent to give sworn evidence about the fact if the person does not have the capacity to understand that, in giving evidence, he or she is under an obligation to give truthful evidence.

(4) A person who is not competent to give sworn evidence about a fact may, subject to subsection (5) , be competent to give unsworn evidence about the fact.

(5) A person who, because of subsection (3) , is not competent to give sworn evidence is competent to give unsworn evidence if the court has told the person –

(a) that it is important to tell the truth; and

(b) that he or she may be asked questions that he or she does not know, or cannot remember, the answer to, and that he or she should tell the court if this occurs; and

(c) that he or she may be asked questions that suggest certain statements are true or untrue and that he or she should agree with the statements that he or she believes are true and should feel no pressure to agree with statements that he or she believes are untrue.

(6) It is presumed, unless the contrary is proved, that a person is not incompetent because of this section.

(7) Evidence that has been given by a witness does not become inadmissible merely because, before the witness finishes giving evidence, he or she dies or ceases to be competent to give evidence.

(8) For the purpose of determining a question arising under this section, the court may inform itself as it thinks fit, including by obtaining information from a person who has relevant specialised knowledge based on the person's training, study or experience.

Compellability: reduced capacity

14 Compellability: reduced capacity

A person is not compellable to give evidence on a matter if the court is satisfied that –

(a) [Section 14 Amended by No. 46 of 2010, s. 7, Applied:01 Jan 2011] substantial cost or delay would be incurred in ensuring that the person would have the capacity to understand a question about the matter or to give an answer that can be understood to a question about the matter; and

(b) adequate evidence on that matter has been given, or will be able to be given, from another person or source.

Compellability: Sovereign and others

15 Compellability: Sovereign and others

(1) None of the following is compellable to give evidence:

(a) the Sovereign;

(b) the Governor-General;

(c) the Governor of a State;

(d) the Administrator of a Territory;

(e) a foreign sovereign or the Head of State of a foreign country.

(2) A member of a House of an Australian Parliament is not compellable to give evidence if the member, if compelled to give evidence, would be prevented from attending –

(a) a sitting of that House, or a joint sitting of that Parliament; or

(b) a meeting of a committee of that House or that Parliament of which he or she is a member.

Competence and compellability: judges and jurors

16 Competence and compellability: judges and jurors

(1) Subject to subsection (2) , a person who is a judge or juror in a proceeding is not competent to give evidence in that proceeding.

(2) A juror in a proceeding is competent to give evidence in the proceeding about matters affecting the conduct of the proceeding.

(3) A person who is or was a judge in an Australian or overseas proceeding is not compellable to give evidence about that proceeding unless the court gives leave.

Competence and compellability: defendants in criminal proceedings

17 Competence and compellability: defendants in criminal proceedings

(1) This section applies only in a criminal proceeding.

(2) A defendant is not competent to give evidence as a witness for the prosecution.

(3) An associated defendant is not compellable to give evidence for or against a defendant unless the associated defendant is being tried separately from the defendant.

(4) If a witness is an associated defendant who is being tried jointly with the defendant in the proceeding, the court is to satisfy itself (if there is a jury, in the jury's absence) that the witness is aware of the effect of subsection (3) .

Compellability of spouses and others in criminal proceedings generally

18 Compellability of spouses and others in criminal proceedings generally

(1) This section applies only in a criminal proceeding.

(2) [Section 18 Subsection (2) amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] A person who, when required to give evidence, is the spouse, parent or child of a defendant may object to being required –

(a) to give evidence; or

(b) to give evidence of a communication between the person and the defendant –

as a witness for the prosecution.

(3) The objection is to be made before the person gives the evidence or as soon as practicable after the person becomes aware of the right so to object, whichever is the later.

(4) If it appears to the court that a person may have a right to object, the court is to satisfy itself that the person is aware of the effect of this section as it may apply to the person.

(5) The court is to hear and determine any objection in the absence of a jury.

(6) A person who makes an objection under this section to giving evidence or giving evidence of a communication must not be required to give the evidence if the court finds that –

(a) there is a likelihood that harm would or might be caused, directly or indirectly, to the person, or to the relationship between the person and the defendant, if the person gives the evidence; and

(b) the nature and extent of that harm outweighs the desirability of having the evidence given.

(7) Without limiting the matters that may be taken into account by the court for the purpose of subsection (6) , it must take into account the following:

(a) the nature and gravity of the offence for which the defendant is being prosecuted;

(b) the substance and importance of any evidence that the person might give and the weight that is likely to be attached to it;

(c) whether any other evidence concerning the matters to which the evidence of the person would relate is reasonably available to the prosecutor;

(d) the nature of the relationship between the defendant and the person;

(e) whether, in giving the evidence, the person would have to disclose matter that was received by the person in confidence from the defendant.

(8) If an objection under this section has been determined, the prosecutor may not comment on –

(a) the objection; or

(b) the decision of the court in relation to the objection; or

(c) the failure of the person to give evidence.

Compellability of spouses and others in certain proceedings

19 Compellability of spouses and others in certain proceedings

Section 18 does not apply in proceedings if –

(a) the defendant is charged with incest; or

(b) [Section 19 Amended by No. 69 of 2003, Sched. 1, Applied:15 Dec 2003] [Section 19 Amended by No. 2 of 2023, s. 20, Applied:20 Apr 2023] [Section 19 Amended by No. 17 of 2024, s. 23, Applied:01 Nov 2024] the defendant is charged with a crime under section 124 , 124A , 124B , 124C , 125 , 125A , 125B , 126 , 127 , 127A , 128 or 129 of the Criminal Code against a person who, at the time the alleged crime was committed, had not attained the age of 16 years; or

(c) the defendant is charged with a crime under section 298 , 299 or 300 of the Criminal Code in relation to a crime referred to in paragraph (b) or (d) ; or

(d) the defendant is charged under any provision of Chapter XIX or XX of the Criminal Code with a crime against a person who, at the time of the alleged crime, had not attained the age of 16 years; or

(e) the defendant is charged with an offence under the Police Offences Act 1935 involving an assault on, or the threat of violence to, a person who, at the time of the alleged offence, had not attained the age of 16 years; or

(f) [Section 19 Amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] the defendant is charged with assault against, or any other offence involving violence or the threat of violence to, his or her spouse or a parent or child of the defendant; or

(fa) [Section 19 Amended by No. 67 of 2004, Sched. 1, Applied:30 Mar 2005] the defendant is charged with family violence, within the meaning of the Family Violence Act 2004 ; or

(g) [Section 19 Amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] the proceedings were instituted as the result of a complaint by the spouse for an offence alleged to have been committed by the defendant against or in relation to the property of his or her spouse.

| Note: This section differs from section 19 of the Evidence Act 1995 of the Commonwealth. |

Comment on failure to give evidence

20 Comment on failure to give evidence

(1) This section only applies in a criminal proceeding for an indictable offence.

(2) The judge or any party, other than the prosecutor, may comment on the failure of a defendant to give evidence.

(3) Unless the comment under subsection (2) is made by another defendant in the proceeding, the comment must not suggest that the defendant failed to give evidence because the defendant was, or believed that he or she was, guilty of the offence concerned.

(4) The judge or any party, other than the prosecutor, may comment on the failure to give evidence by a person who, at the time of the failure, was –

(a) [Section 20 Subsection (4) amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] the defendant's spouse; or

(b) a parent or child of the defendant.

(5) [Section 20 Subsection (5) amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] Unless the comment under subsection (4) is made by another defendant in the proceeding, the comment must not suggest that the spouse, parent or child failed to give evidence because –

(a) the defendant was guilty of the offence concerned; or

(b) [Section 20 Subsection (5) amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] the spouse, parent or child believed that the defendant was guilty of the offence concerned.

(6) If –

(a) 2 or more persons are being tried together for an indictable offence; and

(b) [Section 20 Subsection (6) amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] comment is made by any of those persons on the failure of any of those persons or of the spouse, or a parent or child, of any of those persons to give evidence –

the judge, in addition to commenting on the failure to give evidence, may comment on any comment of a kind referred to in paragraph (b) .

Division 2

Oaths and affirmations

Division 2 Oaths and affirmations

Sworn evidence by oath or affirmation

21 Sworn evidence by oath or affirmation

(1) A witness in a proceeding must take an oath or make an affirmation before giving evidence.

(2) [Section 21 Subsection (2) amended by No. 46 of 2010, s. 8, Applied:01 Jan 2011] Subsection (1) does not apply to a person who gives unsworn evidence under section 13 .

(3) A person who is called merely to produce a document or thing to the court need not take an oath or make an affirmation before doing so.

(4) A witness is to take an oath by answering "I swear" or make an affirmation by answering "I affirm" in reply to the oath or affirmation being tendered in accordance with form 1 or form 3 in Schedule 1 .

(5) An affirmation has the same effect for all purposes as an oath.

| Note: This section differs from section 21 of the Evidence Act 1995 of the Commonwealth. |

Interpreters to act on oath or affirmation

22 Interpreters to act on oath or affirmation

(1) A person must take an oath, or make an affirmation, before acting as an interpreter in a proceeding.

(2) The person is to take an oath by answering "I swear" or make an affirmation by answering "I affirm" in reply to the oath or affirmation being tendered in accordance with form 2 or form 4 in Schedule 1 .

(3) An affirmation has the same effect for all purposes as an oath.

| Note: This section differs from section 22 of the Evidence Act 1995 of the Commonwealth. |

Choice of oath or affirmation

23 Choice of oath or affirmation

(1) A person who is to be a witness or act as an interpreter in a proceeding may choose to take an oath or make an affirmation.

(2) The court is to inform the person that he or she has this choice.

(3) The court may direct a person who is to be a witness to make an affirmation if –

(a) the person refuses to choose whether to take an oath or make an affirmation; or

(b) it is not reasonably practicable for the person to take an appropriate oath.

Requirements for oaths

24 Requirements for oaths

(1) It is not necessary that a religious text be used in taking an oath.

(2) An oath is effective for the purpose of this Division even if the person who took it –

(a) did not have a religious belief or did not have a religious belief of a particular kind; or

(b) did not understand the nature and consequences of the oath.

Rights to make unsworn statements unaffected

25 Rights to make unsworn statements unaffected

Note: The Evidence Act 1995 of the Commonwealth includes a provision preserving any right of a defendant under the law of a State or Territory to make an unsworn statement. The right to make an unsworn statement remains in Norfolk Island.

Division 3

General rules about giving evidence

Division 3 General rules about giving evidence

Court's control over questioning of witness

26 Court's control over questioning of witness

The court may make any orders it considers just in relation to –

(a) the way in which witnesses are to be questioned; and

(b) the production and use of documents and things in connection with the questioning of witnesses; and

(c) the order in which parties may question a witness; and

(d) the presence and behaviour of any person in connection with the questioning of witnesses.

Parties may question witnesses

27 Parties may question witnesses

A party may question any witness, except as provided by this Act.

Order of examination in chief, cross-examination and re-examination

28 Order of examination in chief, cross-examination and re-examination

Unless the court otherwise directs –

(a) cross-examination of a witness is not to take place before the examination in chief of the witness; and

(b) re-examination of a witness is not to take place before all other parties who wish to do so have cross-examined the witness.

Manner and form of questioning and responses of witness

29 Manner and form of questioning and responses of witness

(1) A party may question a witness in any way the party thinks fit, except as provided by this Chapter or as directed by the court.

(2) [Section 29 Subsection (2) substituted by No. 46 of 2010, s. 9, Applied:01 Jan 2011] A court may, on its own motion or on the application of the party that called the witness, direct that the witness give evidence wholly or partly in narrative form.

(3) Such a direction may include directions about the way in which evidence is to be given in that form.

(4) Evidence may be given in the form of charts, summaries or other explanatory material if it appears to the court that the material would be likely to aid its comprehension of other evidence that has been given or is to be given.

Interpreters

30 Interpreters

A witness may give evidence about a fact through an interpreter unless the witness can understand and speak the English language sufficiently to enable the witness to understand, and to make an adequate reply to, questions that may be put about the fact.

30A

Unsworn statements

30A Unsworn statements

In criminal proceedings, a defendant is not entitled to give evidence by means of an unsworn statement.

| Note: This section does not appear in the Evidence Act 1995 of the Commonwealth. |

Deaf and mute witnesses

31 Deaf and mute witnesses

(1) A witness who cannot hear adequately may be questioned in any appropriate way.

(2) A witness who cannot speak adequately may give evidence by any appropriate means.

(3) The court may give directions concerning either or both of the following:

(a) the way in which a witness may be questioned under subsection (1) ;

(b) the means by which a witness may give evidence under subsection (2) .

(4) This section does not affect the right of a witness to whom this section applies to give evidence about a fact through an interpreter under section 30 .

Attempts to revive memory in court

32 Attempts to revive memory in court

(1) A witness, in the course of giving evidence, must not use a document to try to revive his or her memory about a fact or opinion unless the court gives leave.

(2) Without limiting the matters that the court may take into account in deciding whether to give leave, it is to take into account –

(a) whether the witness will be able to recall the fact or opinion adequately without using the document; and

(b) whether so much of the document as the witness proposes to use is, or is a copy of, a document that –

(i) was written or made by the witness when the events recorded in it were fresh in his or her memory; or

(ii) was, at such a time, found by the witness to be accurate.

(3) If a witness, while giving evidence, has used a document to try to revive his or her memory about a fact or opinion, the witness, with the leave of the court, may read aloud as part of his or her evidence so much of the document as relates to that fact or opinion.

(4) The court, on the request of a party, is to give any directions it thinks fit to ensure that so much of the document as relates to the proceeding is produced to that party.

Evidence by police officers

33 Evidence by police officers

(1) Despite section 32 , in any criminal proceeding, a police officer may give evidence in chief for the prosecution by reading or being led through a written statement previously made by the police officer.

(2) Evidence may not be so given unless –

(a) the statement was made by the police officer at the time of, or soon after, the occurrence of the events to which it refers; and

(b) the police officer signed the statement when it was made; and

(c) [Section 33 Subsection (2) amended by No. 46 of 2010, s. 10, Applied:01 Jan 2011] a copy of the statement had been given to the person charged or to his or her Australian legal practitioner or legal counsel a reasonable time before the hearing of the evidence for the prosecution.

(3) A reference in this section to a police officer includes a reference to a person who, at the time the statement concerned was made, was a police officer.

Attempts to revive memory out of court

34 Attempts to revive memory out of court

(1) The court, on the request of a party, may give any directions as are appropriate to ensure that specified documents and things used by a witness, otherwise than while giving evidence to try to revive his or her memory, are produced to the party for the purposes of the proceeding.

(2) The court may refuse to admit the evidence given by the witness so far as it concerns a fact as to which the witness so tried to revive his or her memory if, without reasonable excuse, the directions have not been complied with.

Effect of calling for production of documents

35 Effect of calling for production of documents

(1) A party is not to be required to tender a document only because the party, whether under this Act or otherwise –

(a) called for the document to be produced to the party; or

(b) inspected it when it was so produced.

(2) The party who produces a document so called for is not entitled to tender it only because the party to whom it was produced, or who inspected it, fails to tender it.

Examination without subpoena or other process

36 Examination without subpoena or other process

(1) The court may order a person who –

(a) is present at the hearing of a proceeding; and

(b) is compellable to give evidence in the proceeding –

to give evidence and to produce documents or things even if a subpoena or other process requiring the person to attend for that purpose has not been duly served on the person.

(2) A person so ordered to give evidence or to produce documents or things is subject to the same penalties and liabilities as if the person had been duly served with a subpoena or other process.

(3) A party who inspects a document or thing produced to the court because of subsection (1) need not use the document in evidence.

Division 4

Examination in chief and re-examination

Division 4 Examination in chief and re-examination

Leading questions

37 Leading questions

(1) A leading question must not be put to a witness in examination in chief or in re-examination unless –

(a) the court gives leave; or

(b) the question relates to a matter introductory to the witness's evidence; or

(c) [Section 37 Subsection (1) amended by No. 46 of 2010, s. 11, Applied:01 Jan 2011] no objection is made to the question and (leaving aside the party conducting the examination in chief or re-examination) each other party to the proceeding is represented by an Australian legal practitioner, legal counsel or prosecutor; or

(d) the question relates to a matter that is not in dispute; or

(e) if the witness has specialised knowledge based on the witness's training, study or experience, the question is asked for the purpose of obtaining the witness's opinion about a hypothetical statement of facts in respect of which evidence has been, or is intended to be, given.

(2) Unless the court otherwise directs, subsection (1) does not apply in civil proceedings to a question that relates to an investigation, inspection or report that the witness made in the course of carrying out public or official duties.

(3) Subsection (1) does not prevent a court from exercising power under rules of court to allow a written statement or report to be tendered or treated as evidence in chief of its maker.

Unfavourable witness

38 Unfavourable witness

(1) A party who called a witness, with the leave of the court, may question the witness as though the party were cross-examining the witness about –

(a) evidence given by the witness that is unfavourable to the party; or

(b) a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence; or

(c) whether the witness has, at any time, made a prior inconsistent statement.

(2) Questioning a witness under this section is taken to be cross-examination for the purposes of this Act, other than section 39 .

(3) The party questioning the witness under this section, with the leave of the court, may question the witness about matters relevant only to the witness's credibility.

(4) Questioning under this section is to take place before the other parties cross-examine the witness, unless the court otherwise directs.

(5) If the court so directs, the order in which the parties question the witness is to be as the court directs.

(6) Without limiting the matters that the court may take into account in determining whether to give leave or a direction, it is to take into account –

(a) whether the party gave notice at the earliest opportunity of his or her intention to seek leave; and

(b) the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party.

(7) A party is subject to the same liability to be cross-examined under this section as any other witness if –

(a) a proceeding is being conducted in the name of the party by or on behalf of an insurer or other person; and

(b) the party is a witness in the proceeding.

Limits on re-examination

39 Limits on re-examination

On re-examination –

(a) a witness may be questioned about matters arising out of evidence given by the witness in cross-examination; and

(b) other questions may not be put to the witness, unless the court gives leave.

Division 5

Cross-examination

Division 5 Cross-examination

Witness called in error

40 Witness called in error

A party is not to cross-examine a witness who has been called in error by another party and has not been questioned by that other party about a matter relevant to a question to be determined in the proceeding.

Improper questions

41 Improper questions

[Section 41 Substituted by No. 46 of 2010, s. 12, Applied:01 Jan 2011]

(1) The court must disallow a question put to a witness in cross-examination, or inform the witness that it need not be answered, if the court is of the opinion that the question (referred to as a "disallowable question") –

(a) is misleading or confusing; or

(b) is unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive; or

(c) is put to the witness in a manner or tone that is belittling, insulting or otherwise inappropriate; or

(d) has no basis other than a stereotype (for example, a stereotype based on the witness's sex, race, culture, ethnicity, age or mental, intellectual or physical disability).

(2) Without limiting the matters 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 of which the court is, or is made, aware, including age, education, ethnic and cultural background, gender, language background and skills, level of maturity and understanding and personality; and

(b) any mental, intellectual or physical disability of which the court is, or is made, aware and to which the witness is, or appears to be, subject; and

(c) the context in which the question is put, including –

(i) the nature of the proceeding; and

(ii) in a criminal proceeding, the nature of the offence to which the proceeding relates; and

(iii) the relationship (if any) between the witness and any other party to the proceeding.

(3) A question is not a disallowable question merely because –

(a) the question challenges the truthfulness of the witness or the consistency or accuracy of any statement made by the witness; or

(b) the question requires the witness to discuss a subject that could be considered distasteful to, or private by, the witness.

(4) A party may object to a question put to a witness on the ground that it is a disallowable question.

(5) However, the duty imposed on the court by this section applies whether or not an objection is raised to a particular question.

(6) A failure by the court to disallow a question under this section, or to inform the witness that it need not be answered, does not affect the admissibility in evidence of any answer given by the witness in response to the question.

Leading questions

42 Leading questions

(1) A party may put a leading question to a witness in cross-examination unless the court disallows the question or directs the witness not to answer it.

(2) Without limiting the matters that the court may take into account in deciding whether to disallow the question or give such a direction, it is to take into account the extent to which –

(a) evidence that has been given by the witness in examination in chief is unfavourable to the party calling the witness; and

(b) the witness has an interest consistent with an interest of the cross-examiner; and

(c) the witness is sympathetic to the party conducting the cross-examination, either generally or about a particular matter; and

(d) the witness's age, or any mental, intellectual or physical disability to which the witness is subject, may affect the witness's answers.

(3) The court is to disallow the question, or direct the witness not to answer it, if satisfied that the facts concerned would be better ascertained if leading questions were not used.

(4) This section does not limit the court's power to control leading questions.

Prior inconsistent statement of witness

43 Prior inconsistent statement of witness

(1) A witness may be cross-examined about a prior inconsistent statement alleged to have been made by the witness whether or not –

(a) complete particulars of the statement have been given to the witness; or

(b) a document containing a record of the statement has been shown to the witness.

(2) If, in cross-examination, a witness does not admit that he or she made a prior inconsistent statement, the cross-examiner is not to adduce evidence of the statement otherwise than from the witness unless, in the cross-examination, the cross-examiner –

(a) informed the witness of enough of the circumstances of the making of the statement to enable the witness to identify the statement; and

(b) drew the witness's attention to so much of the statement as is inconsistent with the witness's evidence.

(3) For the purpose of adducing evidence of the statement, a party may re-open the party's case.

Previous representation of other person

44 Previous representation of other person

(1) Except as provided by this section, a cross-examiner must not question a witness about a previous representation alleged to have been made by a person other than the witness.

(2) A cross-examiner may question a witness about the representation and its contents if –

(a) evidence of the representation has been admitted; or

(b) the court is satisfied that it will be admitted.

(3) If subsection (2) does not apply and the representation is contained in a document, the document may only be used to question a witness as follows:

(a) the document must be produced to the witness;

(b) if the document is a tape recording, or any other kind of document from which sounds are reproduced, the witness must be provided with the means to listen to the contents of the document without other persons present at the cross-examination hearing those contents;

(c) the witness must be asked whether, having examined or heard the contents of the document, the witness stands by the evidence that he or she has given;

(d) neither the cross-examiner nor the witness is to identify the document or disclose any of its contents.

(4) A document that is so used may be marked for identification.

Production of document

45 Production of document

(1) This section applies if a party is cross-examining or has cross-examined a witness about –

(a) a prior inconsistent statement alleged to have been made by the witness that is recorded in a document; or

(b) a previous representation alleged to have been made by another person that is recorded in a document.

(2) If the court so orders or if another party so requires, the party must produce –

(a) the document; or

(b) such evidence of the contents of the document as is available to the party –

to the court or to that other party.

(3) The court may –

(a) examine a document or evidence that has been produced under subsection (2) ; and

(b) give directions as to its use; and

(c) admit it even if it has not been tendered by a party.

(4) Subsection (3) does not permit the court to admit a document or evidence that is not admissible because of Chapter 3 .

(5) The mere production of a document to a witness being cross-examined does not give rise to a requirement that the cross-examiner tender the document.

Leave to recall witnesses

46 Leave to recall witnesses

(1) The court may give leave to a party to recall a witness to give evidence about a matter raised by evidence adduced by another party being a matter on which the witness was not cross-examined, if the evidence concerned has been admitted and –

(a) it contradicts evidence about the matter given by the witness in examination in chief; or

(b) the witness could have given evidence about the matter in examination in chief.

(2) A reference in this section to a matter raised by evidence adduced by another party includes a reference to an inference drawn from, or that the party intends to draw from, that evidence.

Interpretation of Part

47 Interpretation of Part

In this Part –

(a) a reference to a document in question is a reference to a document as to the contents of which it is sought to adduce evidence; and

(b) a reference to a copy of a document in question includes a reference to a document that is not an exact copy of the document in question but that is identical to the document in question in all relevant respects.

Proof of contents of document

48 Proof of contents of document

(1) A party may adduce evidence of the contents of a document in question by tendering it or by any one or more of the following methods:

(a) adducing evidence of an admission made by another party to the proceeding as to the contents of the document in question;

(b) tendering a document that –

(i) is, or purports to be, a copy of the document in question; and

(ii) has been produced, or purports to have been produced, by a device that reproduces the contents of documents;

(c) if the document in question is an article or thing by which words are recorded in such a way as to be capable of being reproduced as sound, or in which words are recorded in a code, including shorthand writing, tendering a document that is, or purports to be, a transcript of the words;

(d) if the document in question is an article or thing on or in which information is stored in such a way that it cannot be used by the court unless a device is used to retrieve, produce or collate it, tendering a document that was, or purports to have been, produced by use of the device;

(e) tendering a document that –

(i) forms part of the records of or kept by a business, whether or not the business is still in existence; and

(ii) is, or purports to be a copy of, or an extract from or a summary of, the document in question, or is, or purports to be, a copy of such an extract or summary;

(f) if the document in question is a public document, tendering a document that is, or purports to be, a copy of the document in question and that is, or purports to have been, printed –

(i) by a person authorised by or on behalf of the government to print the document or by the Government Printer of the Commonwealth or by the government or official printer of another State or a Territory; or

(ii) by the authority of the Government or administration of the State, the Commonwealth, another State, a Territory or a foreign country; or

(iii) by authority of an Australian Parliament, a House of an Australian Parliament, a committee of such a House or a committee of an Australian Parliament.

(2) Subsection (1) applies to a document in question whether it is available to the party or not.

(3) If the party adduces evidence of the contents of a document under subsection (1)(a) , the evidence may only be used –

(a) in respect of the party's case against the other party who made the admission concerned; or

(b) in respect of the other party's case against the party who adduced the evidence in that way.

(4) A party may adduce evidence of the contents of a document in question that is not available to the party, or the existence and contents of which are not in issue in the proceeding, by –

(a) tendering a document that is a copy of, or an extract from or a summary of, the document in question; or

(b) adducing oral evidence of the contents of the document in question.

Documents in foreign countries

49 Documents in foreign countries

No paragraph of section 48(1) , other than paragraph (a) , applies to a document that is in a foreign country unless –

(a) the party who adduces evidence of the contents of the document in question, not less than 28 days or such other period as may be prescribed in the regulations or rules of court before the day on which the evidence is adduced, has served on each other party a copy of the document proposed to be tendered; or

(b) the court directs that it is to apply.

Proof of voluminous or complex documents

50 Proof of voluminous or complex documents

(1) [Section 50 Subsection (1) substituted by No. 46 of 2010, s. 13, Applied:01 Jan 2011] The court may, on the application of a party, direct that the party may adduce evidence of the contents of 2 or more documents in question in the form of a summary if the court is satisfied that it would not otherwise be possible conveniently to examine the evidence because of the volume or complexity of the documents in question.

(2) The court may only make a direction if the party seeking to adduce the evidence in the form of a summary –

(a) has served on each other party a copy of the summary that discloses the name and address of the person who prepared the summary; and

(b) has given each other party a reasonable opportunity to examine or copy the documents in question.

(3) The opinion rule does not apply to evidence adduced in accordance with a direction under this section.

Original document rule abolished

51 Original document rule abolished

The principles and rules of the common law that relate to the means of proving the contents of documents are abolished.

Part 3

Other evidence

Part 3 Other evidence

Adducing of other evidence not affected

52 Adducing of other evidence not affected

This Act, other than this Part, does not affect the operation of any Australian law or rule of practice so far as it permits evidence to be adduced in a way other than by witnesses giving evidence or documents being tendered in evidence.

Views

53 Views

(1) A judge, on application, may order that a demonstration, experiment or inspection be held.

(2) A judge is not to make an order unless satisfied that –

(a) the parties will be given a reasonable opportunity to be present; and

(b) if there is a jury, the jury will be present.

(3) Without limiting the matters that a judge may take into account in deciding whether to make an order, the judge is to take into account the following:

(a) whether the parties will be present;

(b) whether the demonstration, experiment or inspection, in the court's opinion, will assist the court in resolving issues of fact or understanding the evidence;

(c) the danger that the demonstration, experiment or inspection might be unfairly prejudicial, misleading or confusing or might cause or result in undue waste of time;

(d) in the case of a demonstration, the extent to which the demonstration will properly reproduce the conduct or event to be demonstrated;

(e) in the case of an inspection, the extent to which the place or thing to be inspected has materially altered.

(4) The court, including the jury if there is a jury, is not to conduct an experiment in the course of its deliberations.

(5) This section does not apply in relation to the inspection of an exhibit by the court or, if there is a jury, by the jury.

| Note: Subsection (2) differs from section 53(2) of the Evidence Act 1995 of the Commonwealth. |

Views to be evidence

54 Views to be evidence

The court, including the jury if there is a jury, may draw any reasonable inference from what it sees, hears or otherwise notices during a demonstration, experiment or inspection.

Chapter 3

Admissibility of evidence

Chapter 3 Admissibility of evidence

Relevant evidence

55 Relevant evidence

(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding.

(2) Evidence is not taken to be irrelevant only because it relates only to –

(a) the credibility of a witness; or

(b) the admissibility of other evidence; or

(c) a failure to adduce evidence.

Relevant evidence admissible

56 Relevant evidence admissible

(1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.

(2) Evidence that is not relevant in the proceeding is not admissible.

Provisional relevance

57 Provisional relevance

(1) If the determination of the question whether evidence adduced by a party is relevant depends on the court making another finding, including a finding that the evidence is what the party claims it to be, the court may find that the evidence is relevant –

(a) if it is reasonably open to make that finding; or

(b) subject to further evidence being admitted at a later stage of the proceeding that will make it reasonably open to make that finding.

(2) Without limiting subsection (1) , if the relevance of evidence of an act done by a person depends on the court making a finding that the person and one or more other persons had, or were acting in furtherance of, a common purpose, whether to effect an unlawful conspiracy or otherwise, the court may use the evidence itself in determining whether the common purpose existed.

Inference as to relevance

58 Inference as to relevance

(1) If a question arises as to the relevance of a document or thing, the court may examine it and may draw any reasonable inference from it, including an inference as to its authenticity or identity.

(2) Subsection (1) does not limit the matters from which inferences may properly be drawn.

Hearsay rule – exclusion of hearsay evidence

59 Hearsay rule – exclusion of hearsay evidence

(1) [Section 59 Subsection (1) amended by No. 46 of 2010, s. 14, Applied:01 Jan 2011] Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.

(2) Such a fact is referred to in this Part as an asserted fact.

(2A) [Section 59 Subsection (2A) inserted by No. 46 of 2010, s. 14, Applied:01 Jan 2011] For the purposes of determining under subsection (1) whether it can reasonably be supposed that the person intended to assert a particular fact by the representation, the court may have regard to the circumstances in which the representation was made.

(3) Subsection (1) does not apply to evidence of a representation contained in a certificate or other document given or made under regulations made under an Act other than this Act to the extent to which the regulations provide that the certificate or other document has evidentiary effect.

Exception: evidence relevant for non-hearsay purpose

60 Exception: evidence relevant for non-hearsay purpose

[Section 60 Substituted by No. 46 of 2010, s. 15, Applied:01 Jan 2011]

(1) The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact.

(2) This section applies whether or not the person who made the representation had personal knowledge of the asserted fact (within the meaning of section 62(2) ).

(3) However, this section does not apply in a criminal proceeding to evidence of an admission.

Exception to hearsay rule dependent on competency

61 Exception to hearsay rule dependent on competency

(1) [Section 61 Subsection (1) substituted by No. 46 of 2010, s. 16, Applied:01 Jan 2011] This Part does not enable use of a previous representation to prove the existence of an asserted fact if, when the representation was made, the person who made it was not competent to give evidence about the fact because of section 13(1) .

(2) This section does not apply to a contemporaneous representation made by a person about his or her health, feelings, sensations, intention, knowledge or state of mind.

(3) For the purpose of this section, it is presumed, unless the contrary is proved, that when the representation was made the person who made it was competent to give evidence about the asserted fact.

Restriction to first-hand hearsay

62 Restriction to first-hand hearsay

(1) A reference in this Division, other than in subsection (2) , to a previous representation is a reference to a previous representation that was made by a person who had personal knowledge of an asserted fact.

(2) A person has personal knowledge of the asserted fact if his or her knowledge of the fact was, or might reasonably be supposed to have been, based on something that the person saw, heard or otherwise perceived, other than a previous representation made by another person about the fact.

(3) [Section 62 Subsection (3) inserted by No. 46 of 2010, s. 17, Applied:01 Jan 2011] For the purposes of section 66A , a person has personal knowledge of the asserted fact if it is a fact about the person's health, feelings, sensations, intention, knowledge or state of mind at the time the representation referred to in that section was made.

Exception: civil proceedings if maker not available

63 Exception: civil proceedings if maker not available

(1) This section applies in a civil proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.

(2) The hearsay rule does not apply to –

(a) evidence of the representation given by a person who saw, heard or otherwise perceived the representation being made; or

(b) a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation.

Exception: civil proceedings if maker available

64 Exception: civil proceedings if maker available

(1) This section applies in a civil proceeding if a person who made a previous representation is available to give evidence about an asserted fact.

(2) The hearsay rule does not apply to –

(a) evidence of the representation given by a person who saw, heard or otherwise perceived the representation being made; or

(b) a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation –

if it would cause undue expense or undue delay, or would not be reasonably practicable, to call the person who made the representation to give evidence.

(3) [Section 64 Subsection (3) substituted by No. 46 of 2010, s. 18, Applied:01 Jan 2011] If the person who made the representation has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation given by –

(a) that person; or

(b) a person who saw, heard or otherwise perceived the representation being made.

(4) A document containing a representation to which subsection (3) applies must not be tendered before the conclusion of the examination in chief of the person who made the representation, unless the court gives leave.

Exception: criminal proceedings if maker not available

65 Exception: criminal proceedings if maker not available

(1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.

(2) [Section 65 Subsection (2) substituted by No. 46 of 2010, s. 19, Applied:01 Jan 2011] The hearsay rule does not apply to evidence of a previous representation given by a person who saw, heard or otherwise perceived the representation being made, if the representation –

(a) was made under a duty to make that representation or to make representations of that kind; or

(b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication; or

(c) was made in circumstances that make it highly probable that the representation is reliable; or

(d) was –

(i) against the interests of the person who made it at the time it was made; and

(ii) made in circumstances that make it likely that the representation is reliable.

(3) The hearsay rule does not apply to evidence of a previous representation made in the course of giving evidence in an Australian or overseas proceeding if, in that proceeding, the defendant in the proceeding to which this section is being applied –

(a) cross-examined the person who made the representation about it; or

(b) had a reasonable opportunity to cross-examine the person who made the representation about it.

(4) If there is more than one defendant in the criminal proceeding, evidence of a previous representation that –

(a) is given in an Australian or overseas proceeding; and

(b) is admitted into evidence in the criminal proceeding because of subsection (3) –

cannot be used against a defendant who did not cross-examine, and did not have a reasonable opportunity to cross-examine, the person about the representation.

(5) For the purposes of subsections (3) and (4) , a defendant is taken to have had a reasonable opportunity to cross-examine a person if the defendant was not present at a time when the cross-examination of a person might have been conducted but –

(a) could reasonably have been present at that time; and

(b) if present could have cross-examined the person.

(6) Evidence of the making of a representation to which subsection (3) applies may be adduced by producing a transcript, or a recording, of the representation that is authenticated by –

(a) the person to whom, or the court or other body to which, the representation was made; or

(b) if applicable, the registrar or other proper officer of the court or other body to which the representation was made; or

(c) the person or body responsible for producing the transcript or recording.

(7) Without limiting subsection (2)(d) , a representation is taken, for the purpose of that subsection, to be against the interests of the person who made it if it tends –

(a) to damage the person's reputation; or

(b) to show that the person committed an offence for which the person has not been convicted; or

(c) to show that the person is liable in an action for damages.

(8) The hearsay rule does not apply to –

(a) evidence of a previous representation adduced by a defendant if the evidence is given by a person who saw, heard or otherwise perceived the representation being made; or

(b) a document tendered as evidence by a defendant so far as it contains a previous representation, or another representation to which it is reasonably necessary to refer in order to understand the representation.

(9) If evidence of a previous representation about a matter has been adduced by a defendant and has been admitted, the hearsay rule does not apply to evidence of another representation about the matter that –

(a) is adduced by another party; and

(b) is given by a person who saw, heard or otherwise perceived the other representation being made.

Exception: criminal proceedings if maker available

66 Exception: criminal proceedings if maker available

(1) This section applies in a criminal proceeding if a person who made a previous representation is available to give evidence about an asserted fact.

(2) If that person has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the previous representation that is given by –

(a) that person; or

(b) a person who saw, heard or otherwise perceived the representation being made –

if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation.

(2A) [Section 66 Subsection (2A) inserted by No. 46 of 2010, s. 20, Applied:01 Jan 2011] In determining whether the occurrence of the asserted fact was fresh in the memory of a person, the court may take into account all matters that it considers are relevant to the question, including –

(a) the nature of the event concerned; and

(b) the age and health of the person; and

(c) the period of time between the occurrence of the asserted fact and the making of the representation.

(3) If a representation was made for the purpose of indicating the evidence that the person who made it would be able to give in an Australian or overseas proceeding, subsection (2) does not apply to evidence adduced by the prosecutor of the representation unless the representation concerns the identity of a person, place or thing.

(4) A document containing a representation to which subsection (2) applies must not be tendered before the conclusion of the examination in chief of the person who made the representation, unless the court gives leave.

66A

Exception: contemporaneous statements about a person's health, &c.

66A Exception: contemporaneous statements about a person's health, &c.

[Section 66A Inserted by No. 46 of 2010, s. 21, Applied:01 Jan 2011] The hearsay rule does not apply to evidence of a previous representation made by a person if the representation was a contemporaneous representation about the person's health, feelings, sensations, intention, knowledge or state of mind.

Notices to be given

67 Notices to be given

(1) Section 63(2) , section 64(2) and section 65(2) , (3) and (8) do not apply to evidence adduced by a party unless that party has given reasonable notice in writing to each other party of the party's intention to adduce the evidence.

(2) Notice given under subsection (1) is to be given in accordance with any regulations or rules of court made for the purpose of this section.

(3) The notice must state –

(a) the provisions of this Division on which the party intends to rely in arguing that the hearsay rule does not apply to the evidence; and

(b) if section 64(2) is such a provision, the grounds specified in that provision on which the party intends to rely.

(4) Despite subsection (1) , if notice has not been given, the court, on the application of a party, may direct that one or more of the provisions specified in subsection (1) apply.

(5) The direction –

(a) is subject to any conditions the court thinks fit; and

(b) may provide that, in relation to specified evidence, the provisions concerned apply with any modifications the court specifies.

Objection to tender of hearsay evidence in civil proceedings if maker available

68 Objection to tender of hearsay evidence in civil proceedings if maker available

(1) In a civil proceeding, if the notice discloses that it is not intended to call the person who made the previous representation concerned because it –

(a) would cause undue expense or undue delay; or

(b) would not be reasonably practicable –

a party, not later than 21 days after notice is given, may object to the tender of the evidence, or of a specified part of the evidence.

(2) The objection is to be made by giving to each other party a written notice setting out the grounds on which the objection is made.

(3) The court, on the application of a party, may determine the objection at or before the hearing.

(4) If the objection is unreasonable, the court may order that the party objecting is to bear the costs incurred by another party –

(a) in relation to the objection; and

(b) in calling the person who made the representation to give evidence.

Exception: business records

69 Exception: business records

(1) This section applies to a document that –

(a) either –

(i) is or forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a business; or

(ii) at any time was or formed part of such a record; and

(b) contains a previous representation made or recorded in the document in the course of, or for the purposes of, the business.

(2) The hearsay rule does not apply to the document, so far as it contains the representation, if the representation was made –

(a) by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact; or

(b) on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact.

(3) Subsection (2) does not apply if the representation –

(a) was prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with, an Australian or overseas proceeding; or

(b) was made in connection with an investigation relating or leading to a criminal proceeding.

(4) If –

(a) the occurrence of an event of a particular kind is in question; and

(b) in the course of a business, a system has been followed of making and keeping a record of the occurrence of all events of that kind –

the hearsay rule does not apply to evidence that tends to prove that there is no record kept, in accordance with that system, of the occurrence of the event.

(5) For the purpose of this section, a person is taken to have had personal knowledge of a fact if the person's knowledge of the fact was or might reasonably be supposed to have been based on what the person saw, heard or otherwise perceived, other than a previous representation made by a person about the fact.

Exception: contents of tags, labels and writing

70 Exception: contents of tags, labels and writing

The hearsay rule does not apply to a tag or label attached to, or writing placed on, an object, including a document, if the tag or label or writing may reasonably be supposed to have been attached or placed –

(a) in the course of a business; and

(b) for the purpose of describing or stating the identity, nature, ownership, destination, origin or weight of the object, or of any of the contents of the object.

Exception: electronic communications

71 Exception: electronic communications

[Section 71 Substituted by No. 46 of 2010, s. 22, Applied:01 Jan 2011] The hearsay rule does not apply to a representation contained in a document recording an electronic communication so far as the representation is a representation as to –

(a) the identity of the person from whom or on whose behalf the communication was sent; or

(b) the date on which or the time at which the communication was sent; or

(c) the destination of the communication or the identity of the person to whom the communication was addressed.

Exception: Aboriginal and Torres Strait Islander traditional laws and customs

72 Exception: Aboriginal and Torres Strait Islander traditional laws and customs

[Section 72 Substituted by No. 46 of 2010, s. 22, Applied:01 Jan 2011] The hearsay rule does not apply to evidence of a representation about the existence or non-existence, or the content, of the traditional laws and customs of an Aboriginal or Torres Strait Islander group.

Exception: reputation as to relationships and age

73 Exception: reputation as to relationships and age

(1) The hearsay rule does not apply to evidence of reputation concerning –

(a) whether a person was, at a particular time or at any time, a married person; or

(b) whether a man and a woman cohabiting at a particular time were married to each other at that time; or

(c) a person's age; or

(d) family history or a family relationship.

(2) In a criminal proceeding, subsection (1) does not apply to evidence adduced by a defendant unless –

(a) it tends to contradict evidence of a kind referred to in subsection (1) that has been admitted; or

(b) the defendant has given reasonable notice in writing to each other party of the defendant's intention to adduce the evidence.

(3) In a criminal proceeding, subsection (1) does not apply to evidence adduced by the prosecutor unless it tends to contradict evidence of a kind referred to in subsection (1) that has been admitted.

Exception: reputation of public or general rights

74 Exception: reputation of public or general rights

(1) The hearsay rule does not apply to evidence of reputation concerning the existence, nature or extent of a public or general right.

(2) In a criminal proceeding, subsection (1) does not apply to evidence adduced by the prosecutor unless it tends to contradict evidence of a kind referred to in subsection (1) that has been admitted.

Exception: interlocutory proceedings

75 Exception: interlocutory proceedings

In an interlocutory proceeding, the hearsay rule does not apply to evidence if the party who adduces it also adduces evidence of its source.

Opinion rule

76 Opinion rule

(1) Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.

(2) Subsection (1) does not apply to evidence of an opinion contained in a certificate or other document given or made under regulations made under an Act other than this Act to the extent to which the regulations provide that the certificate or other document has evidentiary effect.

Exception: evidence relevant otherwise than as opinion evidence

77 Exception: evidence relevant otherwise than as opinion evidence

The opinion rule does not apply to evidence of an opinion that is admitted because it is relevant for a purpose other than proof of the existence of a fact about the existence of which the opinion was expressed.

Exception: lay opinion

78 Exception: lay opinion

The opinion rule does not apply to evidence of an opinion expressed by a person if –

(a) the opinion is based on what the person saw, heard or otherwise perceived about a matter or event; and

(b) evidence of the opinion is necessary to obtain an adequate account or understanding of the person's perception of the matter or event.

78A

Exception: Aboriginal and Torres Strait Islander traditional laws and customs

78A Exception: Aboriginal and Torres Strait Islander traditional laws and customs

[Section 78A Inserted by No. 46 of 2010, s. 23, Applied:01 Jan 2011] The opinion rule does not apply to evidence of an opinion expressed by a member of an Aboriginal or Torres Strait Islander group about the existence or non-existence, or the content, of the traditional laws and customs of the group.

Exception: opinion based on specialised knowledge

79 Exception: opinion based on specialised knowledge

[Section 79 Substituted by No. 46 of 2010, s. 24, Applied:01 Jan 2011]

(1) If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.

(2) To avoid doubt, and without limiting subsection (1) –

(a) a reference in that subsection to specialised knowledge includes a reference to specialised knowledge of child development and child behaviour (including specialised knowledge of the impact of sexual abuse on children and their development and behaviour during and following the abuse); and

(b) a reference in that subsection to an opinion of a person includes, if the person has specialised knowledge of the kind referred to in paragraph (a) , a reference to an opinion relating to either or both of the following:

(i) the development and behaviour of children generally;

(ii) the development and behaviour of children who have been victims of sexual offences, or offences similar to sexual offences.

79A.

[Section 79A Repealed by No. 46 of 2010, s. 25, Applied:01 Jan 2011]

Ultimate issue and common knowledge rules abolished

80 Ultimate issue and common knowledge rules abolished

Evidence of an opinion is not inadmissible only because it is about –

(a) a fact in issue or an ultimate issue; or

(b) a matter of common knowledge.

Part 4

Admissions

Part 4 Admissions

Hearsay and opinion rules: exception for admissions and related representations

81 Hearsay and opinion rules: exception for admissions and related representations

(1) The hearsay rule and the opinion rule do not apply to evidence of an admission.

(2) The hearsay rule and the opinion rule do not apply to evidence of a previous representation –

(a) made in relation to an admission at the time the admission was made, or shortly before or after that time; and

(b) to which it is reasonably necessary to refer in order to understand the admission.

Exclusion of evidence of admissions that is not first-hand

82 Exclusion of evidence of admissions that is not first-hand

Section 81 does not prevent the application of the hearsay rule to evidence of an admission unless –

(a) it is given by a person who saw, heard or otherwise perceived the admission being made; or

(b) it is a document in which the admission is made.

Exclusion of evidence of admissions as against third parties

83 Exclusion of evidence of admissions as against third parties

(1) Section 81 does not prevent the application of the hearsay rule or the opinion rule to evidence of an admission in respect of the case of a third party.

(2) The evidence may be used in respect of the case of a third party if that party consents.

(3) Consent cannot be given in respect of only part of the evidence.

(4) In this section,

third party means a party to the proceeding concerned, other than a party who –

(a) made the admission; or

(b) adduced the evidence.

Exclusion of admission influenced by violence and certain other conduct

84 Exclusion of admission influenced by violence and certain other conduct

(1) Evidence of an admission is not admissible unless the court is satisfied that the admission and the making of the admission were not influenced by –

(a) violent, oppressive, inhuman or degrading conduct towards the person who made the admission or towards another person; or

(b) a threat of conduct of that kind.

(2) Subsection (1) applies only if the party against whom evidence of the admission is adduced has raised in the proceeding an issue about whether the admission or its making were so influenced.

Criminal proceedings: reliability of admissions by defendants

85 Criminal proceedings: reliability of admissions by defendants

(1) [Section 85 Subsection (1) substituted by No. 46 of 2010, s. 26, Applied:01 Jan 2011] This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant –

(a) to, or in the presence of, an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence; or

(b) as a result of an act of another person who was, and who the defendant knew or reasonably believed to be, capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued.

(2) Evidence of the admission is not admissible unless the circumstances in which the admission was made make it unlikely that the truth of the admission was adversely affected.

(3) Without limiting the matters that the court may take into account for the purpose of subsection (2) , it is to take into account –

(a) any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject; and

(b) if the admission was made in response to questioning –

(i) the nature of the questions and the manner in which they were put; and

(ii) the nature of any threat, promise or other inducement made to the person questioned.

85A

Admission in serious offence

85A Admission in serious offence

(1) Evidence of an admission in a proceeding for a serious offence made by a defendant during official questioning is not admissible unless –

(a) [Section 85A Subsection (1) amended by No. 69 of 2003, Sched. 1, Applied:15 Dec 2003] there is available to the court an audio visual record of an interview with the defendant in the course of which the admission was made; or

(b) [Section 85A Subsection (1) amended by No. 69 of 2003, Sched. 1, Applied:15 Dec 2003] if the prosecution proves on the balance of probabilities that there was a reasonable explanation as to why an audio visual record referred to in paragraph (a) could not be made, there is available to the court an audio visual record of an interview with the defendant about the making and terms of the admission or the substance of the admission in the course of which the defendant states that he or she made an admission in those terms or confirms the substance of the admission; or

(c) [Section 85A Subsection (1) amended by No. 69 of 2003, Sched. 1, Applied:15 Dec 2003] the prosecution proves on the balance of probabilities that there was a reasonable explanation as to why an audio visual record referred to in paragraph (a) or (b) could not be made; or

(d) the court is satisfied that there are exceptional circumstances which, in the interests of justice, justify the admission of the evidence.

(2) A reasonable explanation includes but is not limited to any of the following:

(a) [Section 85A Subsection (2) amended by No. 69 of 2003, Sched. 1, Applied:15 Dec 2003] the admission was made when it was not practicable to make an audio visual record of it;

(b) [Section 85A Subsection (2) amended by No. 69 of 2003, Sched. 1, Applied:15 Dec 2003] equipment to make an audio visual record of the interview could not be obtained while it was reasonable to detain the defendant;

(c) [Section 85A Subsection (2) amended by No. 69 of 2003, Sched. 1, Applied:15 Dec 2003] the defendant did not consent to an audio visual record being made of the interview;

(d) [Section 85A Subsection (2) amended by No. 69 of 2003, Sched. 1, Applied:15 Dec 2003] the equipment used to make an audio visual record of the interview malfunctioned.

(3) This section applies only to an admission in the course of official questioning by a defendant who, at the time of making the admission was, or ought reasonably to have been, suspected by an investigating official of having committed the offence.

| Note: This section does not appear in the Evidence Act 1995 of the Commonwealth. |

Exclusion of records of oral questioning

86 Exclusion of records of oral questioning

(1) This section applies only in a criminal proceeding if an oral admission was made by a defendant to an investigating official in response to a question put or a representation made by the official.

(2) A document prepared by or on behalf of the investigating official is not admissible to prove the contents of the question, representation or response unless the defendant has acknowledged that the document is a true record of the question, representation or response.

(3) The acknowledgment must be made by signing, initialling or otherwise marking the document.

(4) In this section, a document does not include –

(a) a sound recording, or a transcript of a sound recording; or

(b) a recording of visual images and sounds, or a transcript of the sounds so recorded.

Admission made with authority

87 Admission made with authority

(1) For the purpose of determining whether a previous representation made by a person is also taken to be an admission by a party, the court is to admit the representation if it is reasonably open to find that –

(a) when the representation was made, the person had authority to make statements on behalf of the party in relation to the matter with respect to which the representation was made; or

(b) when the representation was made, the person was an employee of the party, or had authority otherwise to act for the party, and the representation related to a matter within the scope of the person's employment or authority; or

(c) the representation was made by the person in furtherance of a common purpose, whether lawful or not, that the person had with the party or one or more persons including the party.

(2) For the purpose of this section, the hearsay rule does not apply to a previous representation made by a person that tends to prove –

(a) that the person had authority to make statements on behalf of another person in relation to a matter; or

(b) that the person was an employee of another person or had authority otherwise to act for another person; or

(c) the scope of the person's employment or authority.

Proof of admission

88 Proof of admission

For the purpose of determining whether evidence of an admission is admissible, the court is to find that a particular person made the admission if it is reasonably open to find that the person made the admission.

Evidence of silence

89 Evidence of silence

(1) [Section 89 Subsection (1) amended by No. 46 of 2010, s. 27, Applied:01 Jan 2011] In a criminal proceeding, an inference unfavourable to a party must not be drawn from evidence that the party or another person failed or refused –

(a) to answer one or more questions; or

(b) to respond to a representation –

put or made to the party or other person by an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence.

(2) Evidence of that kind is not admissible if it can only be used to draw such an inference.

(3) Subsection (1) does not prevent use of the evidence to prove that the party or other person failed or refused to answer the question or to respond to the representation if the failure or refusal is a fact in issue in the proceeding.

(4) In this section,

inference includes –

(a) an inference of consciousness of guilt; or

(b) an inference relevant to a party's credibility.

Discretion to exclude admission

90 Discretion to exclude admission

In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if –

(a) the evidence is adduced by the prosecution; and

(b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.

Part 5

Evidence of judgments and convictions

Part 5 Evidence of judgments and convictions

Exclusion of evidence of judgments and convictions

91 Exclusion of evidence of judgments and convictions

(1) Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.

(2) Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose.

Exceptions

92 Exceptions

(1) Section 91(1) does not prevent the admission or use of evidence of the grant of probate, letters of administration or a similar order of a court to prove –

(a) the death, or date of death, of a person; or

(b) the due execution of a testamentary document.

(2) In a civil proceeding, section 91(1) does not prevent the admission or use of evidence that a party, or a person through or under whom a party claims, has been convicted of an offence, not being a conviction –

(a) in respect of which a review or appeal, however described, has been instituted but not finally determined; or

(b) that has been quashed or set aside; or

(c) in respect of which a pardon has been given.

(3) The hearsay rule and the opinion rule do not apply to evidence of a kind referred to in this section.

Savings

93 Savings

This Part does not affect the operation of –

(a) a law that relates to the admissibility or effect of evidence of a conviction tendered in a proceeding, including a criminal proceeding, for defamation; or

(b) a judgment in rem; or

(c) the law relating to res judicata or issue estoppel.

Part 6

Tendency and coincidence

Part 6 Tendency and coincidence

Application of Part

94 Application of Part

(1) This Part does not apply to evidence that relates only to the credibility of a witness.

(2) This Part does not apply so far as a proceeding relates to bail or sentencing.

(3) This Part does not apply to evidence of –

(a) the character, reputation or conduct of a person; or

(b) a tendency that a person has or had –

if that character, reputation, conduct or tendency is a fact in issue.

(4) [Section 94 Subsection (4) inserted by No. 2 of 2023, s. 21, Applied:20 Apr 2023] To avoid doubt, any principle or rule of the common law or equity that prevents or restricts the admissibility of evidence about propensity or similar fact evidence in a proceeding is not relevant when applying this Part to tendency evidence or coincidence evidence about a defendant.

(5) [Section 94 Subsection (5) inserted by No. 2 of 2023, s. 21, Applied:20 Apr 2023] In determining the probative value of tendency evidence or coincidence evidence for the purposes of section 97(1)(b) , 97A(4) , 98(1)(b) or 101(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 contamination.

Use of evidence for other purposes

95 Use of evidence for other purposes

(1) Evidence that under this Part is not admissible to prove a particular matter must not be used to prove that matter even if it is relevant for another purpose.

(2) Evidence that under this Part cannot be used against a party to prove a particular matter must not be used against the party to prove that matter even if it is relevant for another purpose.

Failure to act

96 Failure to act

A reference in this Part to doing an act includes a reference to failing to do that act.

Tendency rule

97 Tendency rule

(1) [Section 97 Subsection (1) substituted by No. 46 of 2010, s. 28, Applied:01 Jan 2011] Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless –

(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence; and

(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

(2) Subsection (1)(a) does not apply if –

(a) the evidence is adduced in accordance with any directions made by the court under section 100 ; or

(b) the evidence is adduced to explain or contradict tendency evidence adduced by another party.

97A

Admissibility of tendency evidence in proceedings involving child sexual offences

97A Admissibility of tendency evidence in proceedings involving child sexual offences

[Section 97A Inserted by No. 2 of 2023, s. 22, Applied:20 Apr 2023]

(1) This section applies in a criminal proceeding in which the commission by the defendant of an act that constitutes, or may constitute, a child sexual offence is a fact in issue.

(2) It is presumed that the following tendency evidence about the defendant will have significant probative value for the purposes of sections 97(1)(b) and 101(2) :

(a) tendency evidence about the sexual interest that the defendant has or had in children (even if the defendant has not acted on the interest);

(b) tendency evidence about the defendant acting on a sexual interest that the defendant has or had in children.

(3) Subsection (2) applies whether or not the sexual interest or act to which the tendency evidence relates was directed at a complainant in the proceeding, or any other child or children generally.

(4) Despite subsection (2) , the court may determine that the tendency evidence does not have significant probative value if it is satisfied that there are sufficient grounds to do so.

(5) The following matters (whether considered individually or in combination) are not to be taken into account when determining whether there are sufficient grounds for the purposes of subsection (4) unless the court considers there are exceptional circumstances in relation to those matters (whether considered individually or in combination) to warrant taking them into account:

(a) the sexual interest or act to which the tendency evidence relates (the tendency sexual interest or act) is different from the sexual interest or act alleged in the proceeding (the alleged sexual interest or act);

(b) the circumstances in which the tendency sexual interest or act occurred are different from circumstances in which the alleged sexual interest or act occurred;

(c) the personal characteristics of the subject of the tendency sexual interest or act (for example, the subject’s age, sex or gender) are different to those of the subject of the alleged sexual interest or act;

(d) the relationship between the defendant and the subject of the tendency sexual interest or act is different from the relationship between the defendant and the subject of the alleged sexual interest or act;

(e) the period of time between the occurrence of the tendency sexual interest or act and the occurrence of the alleged sexual interest or act;

(f) the tendency sexual interest or act and alleged sexual interest or act do not share distinctive or unusual features;

(g) the level of generality of the tendency to which the tendency evidence relates.

(6) In this section –

child means a person under 18 years of age;

child sexual offence means each of the following offences (however described and regardless of when it occurred):

(a) an offence against, or arising under, a law of this State involving sexual intercourse with, or any other sexual offence against, a person who was a child at the time of the offence;

(b) an offence against, or arising under, a law of this State involving an unlawful sexual act with, or directed towards, a person who was a child at the time of the offence;

(c) an offence against, or arising under, a law of the Commonwealth, another State, a Territory or a foreign country that, if committed in this State, would have been an offence of a kind referred to in paragraph (a) or (b) –

but does not include conduct of a person that has ceased to be an offence since the time when the person engaged in the conduct.

Coincidence rule

98 Coincidence rule

[Section 98 Substituted by No. 46 of 2010, s. 29, Applied:01 Jan 2011]

(1) Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless –

(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence; and

(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

(1A) [Section 98 Subsection (1A) inserted by No. 2 of 2023, s. 23, Applied:20 Apr 2023] To avoid doubt, subsection (1) includes the use of evidence from 2 or more witnesses claiming they are victims of offences committed by a person who is a defendant in a criminal proceeding to prove, on the basis of similarities in the claimed acts or the circumstances in which they occurred, that the defendant did an act in issue in the proceeding.

(2) Subsection (1)(a) does not apply if –

(a) the evidence is adduced in accordance with any directions made by the court under section 100 ; or

(b) the evidence is adduced to explain or contradict coincidence evidence adduced by another party.

Requirements for notices

99 Requirements for notices

Any notice under section 97 or 98 is to be given in accordance with any regulations or rules of court made for the purposes of this section.

100

Court may dispense with notice requirements

100 Court may dispense with notice requirements

(1) The court, on the application of a party, may direct that the tendency rule is not to apply to particular tendency evidence despite the party's failure to give notice under section 97 .

(2) The court, on the application of a party, may direct that the coincidence rule is not to apply to particular coincidence evidence despite the party's failure to give notice under section 98 .

(3) The application may be made either before or after the time by which the party would, apart from this section, be required to give, or to have given, the notice.

(4) In a civil proceeding, the party's application may be made without notice of it having been given to one or more of the other parties.

(5) The direction –

(a) is subject to such conditions, if any, the court thinks fit; and

(b) may be given either at or before the hearing.

(6) Without limiting the court's power to impose conditions under this section, those conditions may include one or more of the following:

(a) a condition that the party give notice of its intention to adduce the evidence to a specified party or to each other party, other than a specified party;

(b) a condition that the party give such notice only in respect of specified tendency evidence or all tendency evidence that the party intends to adduce, other than specified tendency evidence;

(c) a condition that the party give such notice only in respect of specified coincidence evidence or all coincidence evidence that the party intends to adduce, other than specified coincidence evidence.

101

Further restrictions on tendency evidence and coincidence evidence adduced by the prosecution

101 Further restrictions on tendency evidence and coincidence evidence adduced by the prosecution

(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98 .

(2) [Section 101 Subsection (2) amended by No. 2 of 2023, s. 24, Applied:20 Apr 2023] Tendency evidence about a defendant, or coincidence evidence about a defendant, adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence outweighs the danger of unfair prejudice to the defendant.

(3) This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the defendant.

(4) This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the defendant.

(5) [Section 101 Subsection (5) inserted by No. 49 of 2017, s. 6, Applied:12 Dec 2017] [Section 101 Subsection (5) omitted by No. 2 of 2023, s. 24, Applied:20 Apr 2023] . . . . . . . .

Part 7

Credibility

Part 7 Credibility

[Part 7 of Chapter 3 Substituted by No. 46 of 2010, s. 30, Applied:01 Jan 2011]

101A

Credibility evidence

101A Credibility evidence

[Section 101A Inserted by No. 46 of 2010, s. 30, Applied:01 Jan 2011] Credibility evidence, in relation to a witness or other person, is evidence relevant to the credibility of the witness or person that –

(a) is relevant only because it affects the assessment of the credibility of the witness or person; or

(b) is relevant –

(i) because it affects the assessment of the credibility of the witness or person; and

(ii) for some other purpose for which it is not admissible, or cannot be used, because of a provision of Parts 2 to 6 of Chapter 3 .

102

Credibility rule

102 Credibility rule

[Section 102 Substituted by No. 46 of 2010, s. 30, Applied:01 Jan 2011] Credibility evidence about a witness is not admissible.

103

Exception: cross-examination as to credibility

103 Exception: cross-examination as to credibility

[Section 103 Substituted by No. 46 of 2010, s. 30, Applied:01 Jan 2011]

(1) The credibility rule does not apply to evidence adduced in cross-examination of a witness if the evidence could substantially affect the assessment of the credibility of the witness.

(2) Without limiting the matters that the court may have regard to for the purposes of subsection (1) , it is to have regard to –

(a) whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth; and

(b) the period that has elapsed since the acts or events to which the evidence relates were done or occurred.

104

Further protection: cross-examination of defendant

104 Further protection: cross-examination of defendant

[Section 104 Substituted by No. 46 of 2010, s. 30, Applied:01 Jan 2011]

(1) This section applies only to credibility evidence in a criminal proceeding and so applies in addition to section 103 .

(2) A defendant must not be cross-examined about a matter that is relevant to the assessment of the defendant's credibility, unless the court gives leave.

(3) Despite subsection (2) , leave is not required for cross-examination by the prosecutor about whether the defendant –

(a) is biased or has a motive to be untruthful; or

(b) is, or was, unable to be aware of or recall matters to which his or her evidence relates; or

(c) made a prior inconsistent statement.

(4) Leave must not be given for cross-examination by the prosecutor under subsection (2) unless –

(a) the defendant or the person representing the defendant has questioned the witnesses for the prosecution to prove that the defendant is, either generally or in a particular respect, a person of good character; or

(b) the nature or conduct of the defence involves imputations on the character of the prosecutor or any witness for the prosecution.

(5) Leave is not to be given for cross-examination by another defendant unless –

(a) the evidence that the defendant to be cross-examined has given includes evidence adverse to the defendant seeking leave to cross-examine; and

(b) that evidence has been admitted.

| Note: This section differs from section 104 of the Evidence Act 1995 of the Commonwealth. |

105

[Section 105 Substituted by No. 46 of 2010, s. 30, Applied:01 Jan 2011]

106

Exception: rebutting denials by other evidence

106 Exception: rebutting denials by other evidence

[Section 106 Substituted by No. 46 of 2010, s. 30, Applied:01 Jan 2011]

(1) The credibility rule does not apply to evidence that is relevant to a witness's credibility and that is adduced otherwise than from the witness if –

(a) in cross-examination of the witness –

(i) the substance of the evidence was put to the witness; and

(ii) the witness denied, or did not admit or agree to, the substance of the evidence; and

(b) the court gives leave to adduce the evidence.

(2) Leave under subsection (1)(b) is not required if the evidence tends to prove that the witness –

(a) is biased or has a motive for being untruthful; or

(b) has been convicted of an offence, including an offence against the law of a foreign country; or

(c) has made a prior inconsistent statement; or

(d) is, or was, unable to be aware of matters to which his or her evidence relates; or

(e) has knowingly or recklessly made a false representation while under an obligation, imposed by or under an Australian law or a law of a foreign country, to tell the truth.

107

(Repealed)

107 (Repealed)

[Section 107 Substituted by No. 46 of 2010, s. 30, Applied:01 Jan 2011]

108

Exception: re-establishing credibility

108 Exception: re-establishing credibility

[Section 108 Substituted by No. 46 of 2010, s. 30, Applied:01 Jan 2011]

(1) The credibility rule does not apply to evidence adduced in re-examination of a witness.

(2) The credibility rule does not apply to evidence of a prior consistent statement of a witness if –

(a) evidence of a prior inconsistent statement of the witness has been admitted; or

(b) it is or will be suggested, either expressly or by implication, that evidence given by the witness has been fabricated or reconstructed, whether deliberately or otherwise, or is the result of a suggestion –

and the court gives leave to adduce the evidence of the prior consistent statement.

108A

Admissibility of evidence of credibility of person who has made a previous representation

108A Admissibility of evidence of credibility of person who has made a previous representation

[Section 108A Inserted by No. 46 of 2010, s. 30, Applied:01 Jan 2011]

(1) If –

(a) evidence of a previous representation has been admitted in a proceeding; and

(b) the person who made the representation has not been called, and will not be called, to give evidence in the proceeding –

credibility evidence about the person who made the representation is not admissible unless the evidence could substantially affect the assessment of the person's credibility.

(2) Without limiting the matters which the court may have regard to for the purposes of subsection (1) , it is to have regard to –

(a) whether the evidence tends to prove that the person who made the representation knowingly or recklessly made a false representation when the person was under an obligation to tell the truth; and

(b) the period that elapsed between the doing of the acts or the occurrence of the events to which the representation related and the making of the representation.

108B

Further protections: previous representations of an accused who is not a witness

108B Further protections: previous representations of an accused who is not a witness

[Section 108B Inserted by No. 46 of 2010, s. 30, Applied:01 Jan 2011]

(1) This section applies only in a criminal proceeding and so applies in addition to section 108A .

(2) If the person referred to in that section is a defendant, the credibility evidence is not admissible unless the court gives leave.

(3) Despite subsection (2) , leave is not required if the evidence is about whether the defendant –

(a) is biased or has a motive to be untruthful; or

(b) is, or was, unable to be aware of or recall matters to which his or her previous representation relates; or

(c) has made a prior inconsistent statement.

(4) The prosecution must not be given leave under subsection (2) unless –

(a) the defendant or the person representing the defendant has questioned the witnesses for the prosecution to prove that the defendant is, either generally or in a particular respect, a person of good character; or

(b) the nature or conduct of the defence involves imputations on the character of the prosecutor or any witness for the prosecution.

(5) Another defendant must not be given leave under subsection (2) unless the previous representation of the defendant that has been admitted includes evidence adverse to the defendant seeking leave.

108C

Exception: evidence of persons with specialised knowledge

108C Exception: evidence of persons with specialised knowledge

[Section 108C Inserted by No. 46 of 2010, s. 30, Applied:01 Jan 2011]

(1) The credibility rule does not apply to evidence given by a person concerning the credibility of another witness if –

(a) the person has specialised knowledge based on the person's training, study or experience; and

(b) the evidence is evidence of an opinion of the person that –

(i) is wholly or substantially based on that knowledge; and

(ii) could substantially affect the assessment of the credibility of the witness; and

(c) the court gives leave to adduce the evidence.

(2) To avoid doubt, and without limiting subsection (1) –

(a) a reference in that subsection to specialised knowledge includes a reference to specialised knowledge of child development and child behaviour (including specialised knowledge of the impact of sexual abuse on children and their behaviour during and following the abuse); and

(b) a reference in that subsection to an opinion of a person includes, if the person has specialised knowledge of that kind, a reference to an opinion relating to either or both of the following:

(i) the development and behaviour of children generally;

(ii) the development and behaviour of children who have been victims of sexual offences, or offences similar to sexual offences.

Part 8

Character

Part 8 Character

109

Application

109 Application

This Part applies only in a criminal proceeding.

110

Evidence about character of accused

110 Evidence about character of accused

(1) The hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced by a defendant to prove, directly or by implication, that the defendant is, either generally or in a particular respect, a person of good character.

(2) If evidence adduced to prove, directly or by implication, that a defendant is generally a person of good character has been admitted, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove, directly or by implication, that the defendant is not generally a person of good character.

(3) If evidence adduced to prove, directly or by implication, that a defendant is a person of good character in a particular respect has been admitted, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove, directly or by implication, that the defendant is not a person of good character in that respect.

111

Evidence about character of co-accused

111 Evidence about character of co-accused

(1) The hearsay rule and the tendency rule do not apply to evidence of a defendant's character if –

(a) the evidence is evidence of an opinion about the defendant adduced by another defendant; and

(b) the person whose opinion it is has specialised knowledge based on the person's training, study or experience; and

(c) the opinion is wholly or substantially based on that knowledge.

(2) If such evidence has been admitted, the hearsay rule, the opinion rule and the tendency rule do not apply to evidence adduced to prove that that evidence should not be accepted.

112

Leave required for cross-examination on character of accused or co-accused

112 Leave required for cross-examination on character of accused or co-accused

[Section 112 Amended by No. 46 of 2010, s. 31, Applied:01 Jan 2011] A defendant must not be cross-examined about matters arising out of evidence of a kind referred to in this Part unless the court gives leave.

Part 9

Identification evidence

Part 9 Identification evidence

113

Application of Part

113 Application of Part

Note: The Evidence Act 1995 of the Commonwealth includes a provision that this Part applies only in criminal proceedings.

114

Exclusion of visual identification evidence

114 Exclusion of visual identification evidence

Note: The Evidence Act 1995 of the Commonwealth includes a provision that excludes visual identification evidence unless an identification parade has been held or where it would not have been reasonable to hold such a parade.

115

Exclusion of evidence of identification by pictures

115 Exclusion of evidence of identification by pictures

Note: The Evidence Act 1995 of the Commonwealth includes a provision that excludes picture identification evidence of persons in custody unless certain requirements are met.

116

Directions to jury

116 Directions to jury

(1) If identification evidence has been admitted, the judge is to inform the jury –

(a) that there is a special need for caution before accepting identification evidence; and

(b) of the reasons for that need for caution, both generally and in the circumstances of the case.

(2) It is not necessary that a particular form of words be used in informing the jury.

Part 10

Privileges

Part 10 Privileges

117

Interpretation of Division

117 Interpretation of Division

(1) In this Division –

client includes the following:

(a) [Section 117 Subsection (1) amended by No. 46 of 2010, s. 32, Applied:01 Jan 2011] a person or body who engages a lawyer to provide legal services or who employs a lawyer (including under a contract of service);

(b) an employee or agent of a client;

(c) an employer of a lawyer if the employer is –

(i) the Commonwealth or a State or Territory; or

(ii) a body established by a law of the Commonwealth or a State or Territory;

(d) if, under a law of a State or Territory relating to persons of unsound mind, a manager, committee or person, however described, is for the time being acting in respect of the person, estate or property of a client, a manager, committee or person so acting;

(e) if a client has died, a personal representative of the client;

(f) a successor to the rights and obligations of a client, being rights and obligations in respect of which a confidential communication was made;

confidential communication means a communication made in such circumstances that, when it was made –

(a) the person who made it; or

(b) the person to whom it was made –

was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law;

confidential document means a document prepared in such circumstances that, when it was prepared –

(a) the person who prepared it; or

(b) the person for whom it was prepared –

was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law;

[Section 117 Subsection (1) amended by No. 46 of 2010, s. 32, Applied:01 Jan 2011]

[Section 117 Subsection (1) amended by No. 46 of 2010, s. 32, Applied:01 Jan 2011] lawyer means –

(a) an Australian lawyer; and

(b) an Australian-registered foreign lawyer; and

(c) an overseas-registered foreign lawyer or a natural person who, under the law of a foreign country, is permitted to engage in legal practice in that country; and

(d) an employee or agent of a lawyer referred to in paragraph (a) , (b) or (c) ;

party includes the following:

(a) an employee or agent of a party;

(b) if, under a law of a State or Territory relating to persons of unsound mind, a manager, committee or person, however described, is for the time being acting in respect of the person, estate or property of a party, a manager, committee or person so acting;

(c) if a party has died, a personal representative of the party;

(d) a successor to the rights and obligations of a party, being rights and obligations in respect of which a confidential communication was made.

(2) A reference in this Division to the commission of an act includes a reference to a failure to act.

118

Legal advice

118 Legal advice

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of –

(a) a confidential communication made between the client and a lawyer; or

(b) a confidential communication made between 2 or more lawyers acting for the client; or

(c) [Section 118 Amended by No. 46 of 2010, s. 33, Applied:01 Jan 2011] the contents of a confidential document, whether delivered or not, prepared by the client, lawyer or another person –

for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.

119

Litigation

119 Litigation

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of –

(a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made; or

(b) the contents of a confidential document, whether delivered or not, that was prepared –

for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding, including the proceeding before the court, or an anticipated or pending Australian or overseas proceeding, in which the client is, or may be, or was or might have been, a party.

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