What it does
The Evidence Act 2008 (Vic) establishes a comprehensive statutory code for the law of evidence in Victoria. Its central purpose, stated in s 1, is to make "fresh provision for the law of evidence that is uniform with Commonwealth and New South Wales law". The Act is structured in five chapters that progressively address how evidence reaches the court, whether it is admissible, how facts are proved, and miscellaneous procedural matters.
Chapter 1 (Preliminary) contains formal matters, definitions (s 3 and the Dictionary), and the Act's application. Section 4 provides that the Act applies to all proceedings in a "Victorian court" (defined in the Dictionary to include bodies required to apply the laws of evidence). It extends to bail, interlocutory proceedings, hearings in chambers and, where the court directs, sentencing proceedings under the Sentencing Act 1991 (s 4(5)). The Act binds the Crown (s 7), preserves parliamentary privilege (s 10), and does not affect the operation of other Acts or common law and equity except where expressly or by necessary intendment provided (ss 8, 9).
Chapter 2 (Adducing evidence) regulates how evidence is brought before the court. Part 2.1 deals with witnesses. Division 1 sets competence and compellability rules. Every person is competent and compellable except as otherwise provided (s 12). Lack of capacity renders a person incompetent if they cannot understand questions or give understandable answers and the incapacity cannot be overcome (s 13(1)). Special rules apply to the Sovereign, Governors, judges, jurors and accused persons (ss 15-17). Spouses and others may object to giving evidence for the prosecution in criminal proceedings if harm to the relationship would outweigh the desirability of the evidence (s 18(6)), with the court required to consider factors listed in s 18(7).
Division 2 requires sworn or affirmed evidence (s 21), with interpreters also swearing or affirming (s 22). Witnesses choose between oath and affirmation (s 23). Division 3 gives the court general control over questioning (s 26), the order of examination (s 28), and manner of questioning (s 29). Police officers may give evidence in chief by reading a previously made statement in criminal proceedings (s 33). Divisions 4 and 5 regulate leading questions, unfavourable witnesses (s 38), limits on re-examination (s 39), and cross-examination, including improper questions (s 41) and prior inconsistent statements (s 43).