Evidence Act 2008

The Act has broad reach. Its primary audience is Victorian courts, including the Supreme Court, County Court, Magistrates' Court, and any tribunal or body required to apply the laws of evidence (Dictionary definition of "Victorian court"; s 4(1)). Judges and magistrates must apply its admissibility rules, discretions and proof provisions in every proceeding.

Practising lawyers are directly affected. Prosecutors, defence counsel, civil litigants' solicitors and barristers must navigate its rules when adducing evidence, cross-examining (ss 41-46), giving notice of hearsay, tendency or coincidence evidence (ss 67, 97, 98, 168), and seeking leave under multiple provisions (ss 38, 46, 100, 192). Australian legal practitioners advising clients on privilege claims (Part 3.10) or the consequences of silence (s 89) rely on its precise language.

Accused persons in criminal proceedings occupy a privileged position. The Act preserves the right to silence (s 89), restricts prosecution cross-examination on credibility unless leave is granted (s 104), limits tendency and coincidence evidence against them (s 101), and provides a discretion to exclude admissions where unfairness would result (s 90). Associated accused are not compellable against each other unless tried separately (s 17(3)). Self-incrimination certificates (s 128) protect them in subsequent proceedings.

Witnesses, including victims, children, spouses and expert witnesses, are heavily impacted. Competence and compellability rules (ss 12-19), protections against improper questioning (s 41), and special provisions for deaf, mute or cognitively impaired witnesses (ss 30-31) govern their participation. Children giving unsworn evidence receive tailored warnings (s 21(6); s 165A). Journalists receive qualified privilege for source identity (s 126K), balanced against public interest.

Government agencies, police and businesses appear frequently. Police statements receive special treatment (s 33). Business records are admissible under s 69 without calling the maker, easing proof for large organisations. Commonwealth and State records benefit from facilitation provisions (ss 155, 182). Public officials may claim matters of state privilege (s 130).

The broader community is affected indirectly. Victims of sexual offences benefit from restrictions on identification evidence (ss 114-116) and from the Act's interaction with sexual assault communications privilege (noted in the table of provisions). Aboriginal and Torres Strait Islander groups have dedicated exceptions for traditional laws and customs (ss 72, 78A). The public interest is protected through exclusionary discretions (ss 135-138) and the requirement that probative value substantially outweigh prejudice in criminal cases (s 137).

Corporate bodies cannot claim the privilege against self-incrimination (s 187). Insurers and third parties conducting litigation in another's name are treated as witnesses for certain purposes (s 38(7)).

In practice, the Act shapes every contested factual dispute in Victorian courts. Its uniform design also influences interstate and federal practice where courts apply choice-of-law rules or where federal courts sitting in Victoria apply the Act under the Judiciary Act 1903 (Cth).

The Act creates a web of duties and rights calibrated to ensure reliable fact-finding while protecting fundamental interests.

Courts have extensive duties. They must determine relevance (s 55), apply inclusionary and exclusionary rules, and, where a jury is present, give mandatory directions on unreliable evidence (s 165), children's evidence (s 165A) and, in criminal cases, identification evidence (notes to ss 116 and 165 referring to the Jury Directions Act 2015). The court controls questioning (s 26), disallows improper questions even without objection (s 41(7)), and informs parties of rights to object or apply for leave (s 132). On a voir dire, the court decides preliminary questions (s 189), and may inspect documents to resolve privilege or public interest claims (s 133). It must be satisfied on the balance of probabilities for most procedural facts (s 142), but beyond reasonable doubt for the prosecution case (s 141).

Parties have rights to adduce relevant evidence (s 56), cross-examine (s 27), and make submissions on leave or discretions. An accused has the right to admit facts or give consents only after legal advice or court satisfaction that consequences are understood (s 184). Parties may object to hearsay (s 68), seek exclusion of prejudicial evidence (s 137), or obtain advance rulings (s 192A).

Witnesses possess both duties and rights. They must give evidence if competent and compellable (s 12), but may object to self-incriminating answers (s 128). Spouses and relatives may object where harm outweighs utility (s 18). Witnesses have the right to an interpreter (s 30), to give evidence in narrative form by direction (s 29(2)), and to have improper questions disallowed (s 41). Child witnesses receive tailored explanations before giving unsworn evidence (s 13(5)) and benefit from the "promise to tell the truth" form (s 21(6)).

Clients and lawyers enjoy client legal privilege. Evidence of confidential communications or documents for legal advice (s 118) or litigation (s 119) cannot be adduced over objection unless privilege is lost through consent, waiver, misconduct or joint-client exceptions (ss 121-126). Unrepresented parties receive analogous protection (s 120). Journalists have a qualified privilege protecting informant identity unless public interest in disclosure outweighs adverse effects and the public interest in news flow (s 126K(2)).

The Crown and public bodies may claim matters of state privilege (s 130), balancing public interest in admission against secrecy. Religious confessions are absolutely protected (s 127, subject to criminal-purpose and child-protection exceptions added in 2019).

Accused persons enjoy additional rights: non-compellability (s 17(2)), restrictions on prosecution comment on failure to give evidence (note to s 20 referring to Jury Directions Act 2015), and the unfairness discretion for admissions (s 90). Tendency and coincidence evidence against them faces a higher threshold (s 101(2)).

Experts have duties to base opinions on specialised knowledge (s 79) and may give evidence by certificate (s 177), subject to notice and the right of cross-examination.

These rights and duties are not absolute. Most are subject to leave, notice or discretionary balancing. The Act repeatedly requires courts to consider probative value, prejudice, delay, cost and the interests of justice (e.g. ss 135-138, 192).

The Act itself contains few direct criminal penalties. Enforcement occurs primarily through evidentiary rulings, discretionary exclusions, costs orders and, in extreme cases, contempt or statutory offence provisions outside the Act.

Section 195 prohibits publication of disallowed improper questions or credibility questions without court permission, carrying a 60 penalty unit fine. Proceedings for such offences are summary (s 196, though the section is marked as not appearing in the Victorian version in some notes).

Failure to comply with requests for documents or witnesses under Part 4.6 Division 1 can result in the court directing compliance, excluding the evidence, adjourning the proceeding, or ordering costs (s 169). Unreasonable objections to hearsay notices in civil proceedings can attract costs orders (s 68(4)).

Improperly or illegally obtained evidence is not automatically excluded; the court weighs desirability of admission against undesirability of the impropriety (s 138). Where an investigating official fails to caution, the evidence is taken to have been obtained improperly (s 139).

Contempt powers remain available for refusal to answer lawful questions after privilege claims are overruled. Section 194 empowers courts to issue warrants for witnesses who fail to attend after being bound over, served with a subpoena accompanied by conduct money, or who are avoiding service. Fines up to 5 penalty units may be imposed, without prejudice to other proceedings for disobedience.

Bodies corporate cannot claim self-incrimination privilege (s 187), exposing them to compulsion and potential derivative-use immunity only through certificate procedures (s 128A for disclosure orders).

In practice, the most significant "sanction" is exclusion of evidence. An accused may have a conviction overturned on appeal if the trial judge wrongly admitted hearsay (s 59), tendency evidence without sufficient probative value (s 97), or visual identification not preceded by an identification parade where one was reasonable (s 114). Conversely, wrongful exclusion can lead to appeals by the prosecution on a question of law.

Costs consequences follow unreasonable behaviour (s 68(4), s 177(7)). In civil proceedings, failure to comply with directions under s 50 (voluminous documents) or s 193 (discovery of device-produced documents) can result in exclusion or adjournment on terms.

The Act's enforcement therefore relies on judicial gatekeeping, party diligence in giving notice and seeking leave, and the collateral operation of professional conduct rules and the law of contempt.

The Act is expressly not a complete code. Section 8 states it does not affect the operation of any other Act. Section 9 preserves common law and equity principles except where the Act provides otherwise expressly or by necessary intendment. This includes jury deliberations (s 9(2)(a)), non-inconsistent presumptions, and interlocutory dispensing powers.

It interacts closely with the Jury Directions Act 2015. Notes to ss 20, 116, 165, 165A and 165B direct readers to that Act for mandatory or permitted jury directions on failure to give evidence, identification, unreliable evidence, children's evidence and delay/forensic disadvantage. The Evidence Act no longer requires or permits many of the common-law warnings that once appeared in ss 20 and 165B; those have been relocated.

The Sentencing Act 1991 is engaged by s 4(5): evidence rules apply to sentencing only if the court directs, and must apply if a party requests proof of a significant fact (s 4(3)).

The Oaths and Affirmations Act 2018 supplies the framework for affidavits (note to s 186) and is referenced in the authorised persons definition for s 171(3).

Criminal procedure legislation is affected. The Criminal Procedure Act 2009 is noted in relation to admissibility of evidence in the absence of an accused (note to s 86). Complicity provisions in the Crimes Act 1958 interact with s 57(2) on common purpose.

Federal law operates concurrently in federal courts sitting in Victoria. The Commonwealth Evidence Act 1995 applies in federal jurisdiction, but the Victorian Act applies to State matters. Where a proceeding involves both, choice-of-law questions arise. Commonwealth records receive extended operation under s 182 (though the Victorian version of s 182 is omitted and replaced by a note referring to the Commonwealth provision).

The Relationships Act 2008 supplies the registered domestic relationship definition incorporated into the de facto partner definition in the Dictionary (cl 11(6)).

Privilege provisions intersect with the Legal Profession Uniform Law (Victoria). Definitions of "Australian lawyer", "Australian-registered foreign lawyer" and "non-participant registered foreign lawyer" are drawn from that Uniform Law (s 117).

The Act preserves parliamentary privilege (s 10) and matters of state (s 130), interacting with freedom-of-information and archives legislation.

Transitional provisions in Schedule 2 ensure the Act applies to proceedings commenced on or after 1 January 2010, with specific savings for identifications, documents produced before commencement, and notices given under the old Evidence Act 1958.

In short, the Act sits within a dense web of procedural, criminal, civil and federal legislation, operating as the default evidence filter unless another statute expressly displaces it.

Version 27 (as at 25 March 2024) reflects incremental but significant evolution since 2008.

The Jury Directions Act 2015 (effective 2015) prompted major changes. Sections 20, 116, 165, 165A and 165B were amended to remove Victorian-specific jury warning requirements, replacing them with cross-references to the new Act (ss 70-78 of the Jury Directions Act). This was driven by a desire to simplify and standardise directions, reducing the risk of appellate error from overly complex common-law warnings. The 2017 Jury Directions and Other Acts Amendment Act further refined s 66 (fresh in the memory) to include victims under 18, responding to difficulties revealed by High Court authority in Graham v The Queen (1998) 195 CLR 606 and subsequent cases.

The Evidence Amendment (Journalist Privilege) Act 2012 inserted Division 1C (ss 126J-126K), creating a public-interest balancing test for disclosure of informant identity. This responded to media concerns about source protection in the digital age, aligning Victoria with NSW while preserving judicial oversight.

The Crimes Amendment (Abolition of Defensive Homicide) Act 2014 amended s 135 to add paragraph (d), allowing exclusion of evidence that unnecessarily demeans a deceased victim in homicide cases. This reflected policy concern for victim dignity post-reform of homicide defences.

The Oaths and Affirmations Act 2018 updated references in ss 13, 21, 171 and 186, modernising language around cognitive disability and authorised persons.

The Justice Legislation Miscellaneous Amendment Act 2018 amended s 41 to strengthen protections against improper questioning, removing the repealed subsections and clarifying the court's mandatory duty.

The Children Legislation Amendment Act 2019 amended s 127(2) to carve out exceptions for child-protection offences, ensuring religious confession privilege does not impede mandatory reporting.

The Bail Amendment Act 2023 and Justice Legislation Miscellaneous Amendments Act 2020 made minor procedural updates to ss 4, 160 and 194, reflecting changes in bail and arrest procedures.

These amendments share a common theme: responding to practical difficulties, appellate decisions, social policy (child protection, victim dignity, media freedom) and the need to maintain uniformity without sacrificing Victorian-specific justice imperatives. The result is an Act that remains largely uniform but is no longer identical to its 2008 form or its Commonwealth and NSW siblings.

The Act has generated significant appellate litigation, much of it shaping national uniform evidence law.

Hearsay exceptions have been contentious. In R v Hannes (2000) 158 FLR 359 (NSW), the "asserted fact" concept in s 59 produced uncertainty; the legislature responded with s 59(2A). Lee v The Queen (1998) 195 CLR 594 led to s 60(2), clarifying that s 60 does not permit hearsay use of admissions in criminal proceedings. Graham v The Queen (1998) 195 CLR 606 prompted the 2017 amendment to s 66 and insertion of s 66(2A) on "fresh in the memory".

Tendency and coincidence evidence has produced repeated High Court guidance. IMM v The Queen (2016) 257 CLR 300 clarified that "significant probative value" under ss 97 and 98 is assessed on the assumption that the evidence is accepted, not by reference to credibility. Hughes v The Queen (2017) 263 CLR 338 upheld admission of tendency evidence in child sexual offence cases despite lack of striking similarity. The Victorian Court of Appeal has applied these principles rigorously, emphasising the s 101(2) "substantially outweighs" test in criminal cases.

Identification evidence remains controversial. Section 114's preference for identification parades has led to frequent disputes about whether a parade was "reasonable". The note to s 116 now directs judges to the Jury Directions Act 2015, reducing the risk of the "domino effect" of successive warnings that once produced appellate intervention.

Privilege claims generate interlocutory appeals. The dominant-purpose test in ss 118 and 119 has been litigated extensively (e.g. Commissioner of Taxation v Pratt Holdings Pty Ltd). Journalist privilege under s 126K has produced public-interest balancing exercises, with courts weighing source protection against fair trial rights.

Self-incrimination certificates (s 128) and their derivative-use immunity have been tested in Cornwell v The Queen [2007] HCA 12, leading to amendments clarifying that certificates survive challenges and apply to retrials only in limited circumstances.

The discretionary exclusions (ss 135-138) remain a fertile source of appeals. The "unfair prejudice" concept in s 137 requires careful identification of the prejudice that flows from the evidence's use, not merely its emotional impact.

Controversies also surround the Act's relationship with the Jury Directions Act 2015. Some commentators argue that the relocation of warning provisions has created a fragmented regime requiring practitioners to consult two statutes. Others praise the simplification.

Overall, the courts have treated the Act as a coherent code but have not hesitated to read it in light of its uniform purpose and the common-law values it partially codifies. High Court decisions continue to influence Victorian application, maintaining national consistency.

Most practitioners miss several subtle traps.

First, the "fresh in the memory" test in s 66(2)(b)(i) is not a bright-line time limit. Subsection (2A) requires the court to consider all relevant matters, including the nature of the event, the witness's age and health, and the time gap. Many advocates assume that a delay of more than a few months automatically disqualifies the evidence; the statute does not say so.

Second, s 60's non-hearsay purpose exception has narrow operation in criminal proceedings. Subsection (3) excludes admissions, and the note to s 82 reinforces that s 60 does not apply to admissions in criminal cases. The High Court in Lee v The Queen closed an earlier loophole.

Third, tendency and coincidence notices under ss 97 and 98 must be given in accordance with regulations or rules (s 99). Late notice can be cured under s 100, but courts are increasingly strict about the "significant probative value" threshold post-Hughes and IMM. Failure to articulate precisely the tendency or coincidence asserted can be fatal.

Fourth, client legal privilege is lost under s 122(2) if the client acts inconsistently with maintaining the privilege. Knowingly and voluntarily disclosing the substance to another person triggers loss (s 122(3)), but disclosure in the course of making a confidential communication or under compulsion of law does not (s 122(5)). The distinction is fine and frequently litigated.

Fifth, the journalist privilege in s 126K is a shield only; it does not create a substantive cause of action against publication. The balancing test is heavily weighted toward disclosure where the informant identity is central to a fair trial.

Sixth, the Act's transitional provisions in Schedule 2 are not merely historical. Proceedings commenced before 1 January 2010 may still be governed by the old Evidence Act 1958 for parts heard before that date. Practitioners must check commencement dates carefully.

Seventh, s 41's duty to disallow improper questions operates even without objection. Many judges and counsel still treat it as an objection-only rule, contrary to the plain text of s 41(7).

Eighth, the Dictionary definition of "de facto partner" incorporates the Relationships Act 2008 registered domestic relationship. This can expand the class of persons entitled to spousal objection under s 18 beyond what some assume.

Ninth, s 165 warnings in civil proceedings are mandatory on request for a listed (but non-exhaustive) category of unreliable evidence. The 2015 amendments removed some categories but retained the structure; many civil practitioners forget to request the warning.

Tenth, the voir dire under s 189(3) requires the court to disregard the truth of an admission when deciding admissibility unless the accused introduces the issue. This protects the accused from a mini-trial on the very facts in issue.

These gotchas justify specialist evidence advice. The Act rewards meticulous preparation and punishes assumptions carried over from the old common-law regime.

Compliance begins with early case analysis. Identify every piece of evidence and map it against relevance (s 55), hearsay (s 59), opinion (s 76), tendency/coincidence (ss 97-98), credibility (s 102) and character (s 110). Prepare notices for all mandatory categories (ss 67, 97, 98, 168) at the earliest opportunity; courts take a dim view of late applications under ss 100 and 192.

For documentary evidence, ensure compliance with s 48 methods and, where devices or business records are involved, be ready to call foundational evidence if the presumption in ss 146 or 147 is challenged. Voluminous document summaries under s 50 require pre-service of the summary and opportunity to inspect originals.

Witness statements should be drafted with s 38 unfavourable witness and s 43 prior inconsistent statement possibilities in mind. Obtain leave under s 38(1) at the earliest opportunity and give notice where practicable (s 38(6)(a)).

Privilege claims require careful affidavit evidence. For client legal privilege, identify the dominant purpose at the time the communication was made (ss 118-119). For journalist privilege, prepare material addressing the s 126K(2) balancing factors.

In criminal matters, scrutinise prosecution evidence for s 138 impropriety and s 90 unfairness. Request exclusionary rulings at the earliest convenient time, preferably pre-trial via s 192A advance rulings.

Expert evidence should be served with a certificate under s 177 where possible, but be prepared to call the expert if notice is given requiring attendance. Ensure the opinion is wholly or substantially based on specialised knowledge (s 79(1)) and, where child sexual abuse is concerned, that the expert's qualifications match the expanded definition in s 79(2).

Jury trials require close attention to the interaction with the Jury Directions Act 2015. Requests for warnings under ss 165 and 165A must be made at the appropriate time, and counsel should have draft directions ready.

Maintain a compliance checklist: relevance, admissibility pathway, notice given, leave obtained, discretionary considerations addressed, and transitional provisions checked. Where doubt exists, seek an advance ruling. In complex matters, early conferral with opponents on agreed facts (s 191) can dramatically reduce evidentiary disputes.

Finally, remember that the Act is not self-executing. Judicial discretion is central. Frame every application by reference to the statutory language, the probative value/prejudice calculus, and the interests of justice. That disciplined approach is the surest route to compliance and forensic success.