Evidence Act 2008

Chapter 1—Preliminary

Outline of this Act

This Act sets out the State rules of evidence. Generally speaking, the Act applies to proceedings in State courts and before other persons or bodies required to apply the laws of evidence (see section 4).

Chapter 2 is about how evidence is adduced in proceedings.

Chapter 3 is about admissibility of evidence in proceedings.

Chapter 4 is about proof of matters in proceedings.

Chapter 5 deals with miscellaneous matters.

The Dictionary at the end of this Act defines terms and expressions used in this Act.

Related legislation

This Act is in most respects uniform with the Evidence Act 1995 of the Commonwealth (the Commonwealth Act) and the Evidence Act 1995 of New South Wales (the New South Wales Act). The Acts are drafted in identical terms except so far as differences are identified by appropriate annotations to the texts, and except so far as minor drafting variations are required to accord with the drafting style of each jurisdiction.

If one Act contains a provision that is not included in another Act, there is a gap in the numbering of the other Act in order to maintain consistent numbering for the other provisions.

The Evidence Act 2001 of Tasmania also largely mirrors this legislation, but there are some departures.

Part 1.1—Formal matters

1 Purpose

The purpose of this Act is to make fresh provision for the law of evidence that is uniform with Commonwealth and New South Wales law.

2 Commencement

(1) This Part and the Dictionary at the end of this Act come into operation on the day after the day on which this Act receives the Royal Assent.

(2) Subject to subsection (3), the remaining provisions of this Act come into operation on a day or days to be proclaimed.

(3) If a provision of this Act does not come into operation before 1 January 2010, it comes into operation on that day.

3 Definitions

(1) Expressions used in this Act (or in a particular provision of this Act) that are defined in the Dictionary at the end of this Act have the meanings given to them in the Dictionary.

(2) The Dictionary at the end of this Act forms part of this Act.

(3) * * * * *

1 Some expressions used in this Act are defined in the Interpretation of Legislation Act 1984 and have the meanings given to them in that Act.

2 Subsection (2) differs from the Commonwealth Act and New South Wales Act.

3 The Commonwealth Act and New South Wales Act include an additional subsection regarding definitions which are unnecessary in Victoria due to the Interpretation of Legislation Act 1984.

3A Notes

Notes do not form part of this Act.

This section does not appear in the Commonwealth Act or New South Wales Act.

Part 1.2—Application of this Act

4 Courts and proceedings to which Act applies

(1) This Act applies to all proceedings in a Victorian 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 such 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 if—

(a) a party to the proceeding applies for such 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 that fact is or will be significant in determining a sentence to be imposed in the proceeding.

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

(5) In this section, a proceeding that relates to sentencing includes a proceeding for an order under Part 4 of the Sentencing Act 1991.

Notes to s. 4 amended by Nos 67/2013 s. 649(Sch. 9 item 17), 22/2020 s. 18.

1 Section 4 of the Commonwealth Act differs from this section. It applies that Act to proceedings in a federal court or an Australian Capital Territory court. Some provisions of the Commonwealth Act extend beyond proceedings in federal courts and Australian Capital Territory courts (see sections 5, 185, 186 and 187 of the Commonwealth Act).

2 Victorian court is defined in the Dictionary. The definition includes persons or bodies required to apply the laws of evidence.

3 The Commonwealth Act includes 2 additional subsections that exclude the application of that Act to appeals from a court of a State (including appeals from a court of a State exercising federal jurisdiction) and certain other courts.

4 Provisions in other Victorian Acts which relieve courts from the obligation to apply the rules of evidence in certain proceedings are preserved by section 8.

5 Subsection (5) is not included in the Commonwealth Act or New South Wales Act.

5 Extended application of certain provisions

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

6 Territories

The Commonwealth Act includes a provision extending that Act to each external Territory.

7 Act binds Crown

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

8 Operation of Acts

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

The Commonwealth Act includes additional subsections relating to the operation of the Corporations Act 2001 of the Commonwealth, the Australian Securities and Investments Commission Act 2001 of the Commonwealth and certain laws in force in the Australian Capital Territory. It also provides for the regulations to have continued effect (until amended) after the commencement of the Commonwealth section.

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) 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 not inconsistent with this Act;

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

This section differs from section 9 of the Commonwealth Act. That section preserves the written and unwritten laws of States and Territories in relation to various matters.

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.

11 General powers of a court

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

(2) In particular, the powers of a court with respect to abuse of process in a proceeding are not affected.

Chapter 2—Adducing evidence

This Chapter is about ways in which evidence is adduced.

Part 2.1 is about adducing evidence from witnesses.

Part 2.2 is about adducing documentary evidence.

Part 2.3 is about adducing other forms of evidence.

Part 2.1—Witnesses

Division 1—Competence and compellability of witnesses

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.

13 Competence—lack of capacity

(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.

See sections 30 and 31 for examples of assistance that may be provided to enable witnesses to overcome disabilities.

(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.

S. 13(3) amended by No. 6/2018 s. 65(1).

(3) A person who is competent to give evidence about a fact is not competent to give sworn or affirmed 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.

S. 13(4) amended by No. 6/2018 s. 65(1)(2).

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

S. 13(5) amended by No. 6/2018 s. 65(1)(2).

(5) A person who, because of subsection (3), is not competent to give sworn or affirmed evidence is competent to give unsworn evidence or evidence that is not affirmed 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.

14 Compellability—reduced capacity

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

(a) 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 one or more other persons or sources.

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 would, if compelled to give evidence, 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, being a committee of which he or she is a member.

16 Competence and compellability—judges and jurors

(1) A person who is a judge or juror in a proceeding is not competent to give evidence in that proceeding. However, a juror is competent to give evidence in the proceeding about matters affecting the conduct of the proceeding.

(2) 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.

S. 17 (Heading) amended by No. 68/2009 s. 97(Sch. item 55.1).

17 Competence and compellability—accused in criminal proceedings

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

S. 17(2) amended by No. 68/2009 s. 97(Sch. item 55.2).

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

S. 17(3) amended by No. 68/2009 s. 97(Sch. item 55.3).

(3) An associated accused is not compellable to give evidence for or against an accused in a criminal proceeding, unless the associated accused is being tried separately from the accused.

S. 17(4) amended by No. 68/2009 s. 97(Sch. item 55.4).

(4) If a witness is an associated accused who is being tried jointly with the accused 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).

Note

Associated accused is defined in the Dictionary.

18 Compellability of spouses and others in criminal proceedings generally

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

S. 18(2) amended by No. 68/2009 s. 97(Sch. item 55.5(a)).

(2) A person who, when required to give evidence, is the spouse, de facto partner, parent or child of an accused may object to being required—

(a) to give evidence; or

S. 18(2)(b) amended by No. 68/2009 s. 97(Sch. item 55.5(b)).

(b) to give evidence of a communication between the person and the accused—

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 make an objection under this section, 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) If there is a jury, the court is to hear and determine any objection under this section in the absence of the 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—

S. 18(6)(a) amended by No. 68/2009 s. 97(Sch. item 55.6).

(a) there is a likelihood that harm would or might be caused (whether directly or indirectly) to the person, or to the relationship between the person and the accused, 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 purposes of subsection (6), it must take into account the following—

S. 18(7)(a) amended by No. 68/2009 s. 97(Sch. item 55.7).

(a) the nature and gravity of the offence for which the accused 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;

S. 18(7)(d) amended by No. 68/2009 s. 97(Sch. item 55.7).

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

S. 18(7)(e) amended by No. 68/2009 s. 97(Sch. item 55.7).

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

(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.

19 Compellability of spouses and others in certain criminal proceedings

Section 19 of the Commonwealth Act and New South Wales Act excludes the application of the section in proceedings for certain offences.

20 Comment on failure to give evidence

S. 20(1) repealed by No. 14/2015 s. 70(1).

S. 20(2) amended by No. 68/2009 s. 97(Sch. item 55.8), repealed by No. 14/2015 s. 70(1).

S. 20(3) amended by No. 68/2009 s. 97(Sch. item 55.9), repealed by No. 14/2015 s. 70(1).

S. 20(4) amended by No. 68/2009 s. 97(Sch. item 55.8), repealed by No. 14/2015 s. 70(1).

S. 20(5) repealed by No. 14/2015 s. 70(1).

Note to s. 20 inserted by No. 14/2015 s. 70(2).

Section 20 of the Commonwealth Act and New South Wales Act requires the judge to give certain directions to the jury relating to the failure to give evidence or call witnesses in a criminal proceeding for an indictable offence. Division 6 of Part 4 of the Jury Directions Act 2015 contains provisions relating to the failure to give evidence or call a witness that apply in criminal trials.

Division 2—Oaths and affirmations

21 Sworn evidence of witnesses to be on oath or affirmation

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

(2) 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) The witness is to take the oath, or make the affirmation, in accordance with the appropriate form in Schedule 1 or in a similar form.

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

S. 21(6) inserted by No. 6/2018 s. 65(3).

(6) For the purposes of subsection (4), in the case of a child or a person with a cognitive disability, the following words are taken to be a similar form of oath or affirmation—

"I promise to tell the truth.".

22 Interpreters to act on oath or affirmation

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

(1A) An oath taken, or an affirmation made, by a person before acting as an interpreter on a day is taken for the purposes of subsection (1) to be an oath taken or affirmation made by that person for the purposes of any subsequent proceedings in that court on that day in which the person acts as an interpreter.

(2) The person is to take the oath, or make the affirmation, in accordance with the appropriate form in Schedule 1 or in a similar form.

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

The Commonwealth Act does not include subsection (1A).

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 whether to take an oath or make an affirmation.

(2) The court is to inform the person that he or she has this choice, unless the court is satisfied that the person has already been informed or knows that he or she has the 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.

Subsection (2) differs from section 23 of the Commonwealth Act.

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 purposes 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.

24A Alternative oath

(1) A person may take an oath even if the person's religious or spiritual beliefs do not include a belief in the existence of a god.

(2) Despite anything to the contrary in this Act, the form of oath taken by a person—

(a) need not include a reference to a god; and

(b) may instead refer to the basis of the person's beliefs in accordance with a form prescribed by the regulations.

The Commonwealth Act does not include an equivalent provision to section 24A.

25 Rights to make unsworn statements unaffected

The Commonwealth Act previously included a provision that preserved any right that an accused in a criminal proceeding had under a law of a State or Territory to make an unsworn statement.

Division 3—General rules about giving evidence

26 Court's control over questioning of witness

The court may make such orders as 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.

27 Parties may question witnesses

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

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.

29 Manner and form of questioning witnesses and their responses

(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) 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.

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.

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.

32 Attempts to revive memory in court

(1) A witness must not, in the course of giving evidence, 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 has, while giving evidence, used a document to try to revive his or her memory about a fact or opinion, the witness may, with the leave of the court, read aloud, as part of his or her evidence, so much of the document as relates to that fact or opinion.

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

33 Evidence given 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

S. 33(2)(c) amended by No. 17/2014 s. 160(Sch. 2 item 39.1).

(c) a copy of the statement had been given to the person charged or to the person's Australian legal practitioner a reasonable time before the hearing of the evidence for the prosecution.

Paragraph (c) differs from the Commonwealth Act and New South Wales Act.

(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.

34 Attempts to revive memory out of court

(1) The court may, on the request of a party, give such 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.

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.

36 Person may be examined 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 such 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

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

S. 37(1)(c) amended by No. 17/2014 s. 160(Sch. 2 item 39.2).

(c) 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 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, being 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.

Note

Leading question is defined in the Dictionary.

38 Unfavourable witnesses

(1) A party who called a witness may, with the leave of the court, 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 may, with the leave of the court, question the witness about matters relevant only to the witness's credibility.

The rules about admissibility of evidence relevant only to credibility are set out in Part 3.7.

(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 under this section, it is to take into account—

(a) whether the party gave notice at the earliest opportunity of the party's 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.

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

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.

41 Improper questions

S. 41(1) amended by No. 48/2018 s. 57(1).

(1) The court must disallow an improper question or improper questioning put to a witness in cross-examination, or inform the witness that it need not be answered.

S. 41(2) repealed by No. 48/2018 s. 57(2).

(3) In this section, improper question or improper questioning means a question or a sequence of questions put to a witness that—

(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).

S. 41(4) repealed by No. 48/2018 s. 57(2).

(5) A question is not an improper 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.

(6) A party may object to a question put to a witness on the ground that it is an improper question.

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

(8) 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.

1 A person must not, without the express permission of a court, print or publish any question that the court has disallowed under this section—see section 195.

2 Section 41 differs from the Commonwealth Act and New South Wales Act.

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 who called 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 the court is 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.

Note

Leading question is defined in the Dictionary.

43 Prior inconsistent statements of witnesses

(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 has 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.

44 Previous representations of other persons

(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 (for example, headphones) 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.

45 Production of documents

(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 so produced; 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 who is being cross-examined does not give rise to a requirement that the cross-examiner tender the document.

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.

Part 2.2—Documents

47 Definitions

(1) A reference in this Part to a document in question is a reference to a document as to the contents of which it is sought to adduce evidence.

(2) A reference in this Part 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.

48 Proof of contents of documents

(1) A party may adduce evidence of the contents of a document in question by tendering the document in question 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 the document in question 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 summary of, the document in question; or

(b) adducing from a witness evidence of the contents of the document in question.

1 Clause 5 of Part 2 of the Dictionary is about the availability of documents.

2 Section 182 of the Commonwealth Act gives section 48 of the Commonwealth Act a wider application in relation to Commonwealth records and certain Commonwealth documents.

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

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

Section 182 of the Commonwealth Act gives section 49 of the Commonwealth Act a wider application in relation to Commonwealth records and certain Commonwealth documents.

50 Proof of voluminous or complex documents

(1) 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 such a direction if the party seeking to adduce the evidence in the form of a summary has—

(a) 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) 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.

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.

Section 182 of the Commonwealth Act gives the provisions of Part 2.2 of the Commonwealth Act a wider application in relation to Commonwealth records and certain Commonwealth documents.

Part 2.3—Other evidence

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.

53 Views

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

(2) A judge is not to make an order unless he or she is satisfied that—

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

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

(3) Without limiting the matters that the 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 will, in the court's opinion, 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, might be 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, if there is a jury, the 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.

54 Views to be evidence

The court (including, if there is a jury, the 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

This Chapter is about whether evidence adduced in a proceeding is admissible.

Part 3.1 sets out the general inclusionary rule that relevant evidence is admissible.

Part 3.2 is about the exclusion of hearsay evidence, and exceptions to the hearsay rule.

Part 3.3 is about exclusion of opinion evidence, and exceptions to the opinion rule.

Part 3.4 is about admissions and the extent to which they are admissible as exceptions to the hearsay rule and the opinion rule.

Part 3.5 is about exclusion of certain evidence of judgments and convictions.

Part 3.6 is about exclusion of evidence of tendency or coincidence, and exceptions to the tendency rule and the coincidence rule.

Part 3.7 is about exclusion of evidence relevant only to credibility, and exceptions to the credibility rule.

Part 3.8 is about character evidence and the extent to which it is admissible as exceptions to the hearsay rule, the opinion rule, the tendency rule and the credibility rule.

Part 3.9 is about the requirements that must be satisfied before identification evidence is admissible.

Part 3.10 is about the various categories of privilege that may prevent evidence being adduced.

Part 3.11 provides for the discretionary and mandatory exclusion of evidence even if it would otherwise be admissible.

The following diagram shows how this Chapter applies to particular evidence—

View image in the official source

Part 3.1—Relevance

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) In particular, 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.

56 Relevant evidence to be 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.

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.

S. 57(2) amended by No. 63/2014 s. 7(12).

(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 as part of involvement in the commission of an offence or otherwise), the court may use the evidence itself in determining whether the common purpose existed.

1 Subsection (2) differs from section 57(2) of the Commonwealth Act and New South Wales Act.

2 Subdivision (1) of Division 1 of Part II of the Crimes Act 1958 deals with complicity in commission of offences.

58 Inferences 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.

Part 3.2—Hearsay

Division 1—The hearsay rule

59 The hearsay rule—exclusion of hearsay evidence

(1) 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 in this Part referred to as an asserted fact.

(2A) 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.

Subsection (2A) was inserted as a response to the decision of the Supreme Court of New South Wales in R v Hannes (2000) 158 FLR 359.

1 The Commonwealth Act and New South Wales Act include another subsection.

2 Specific exceptions to the hearsay rule are as follows—

• evidence relevant for a non-hearsay purpose (section 60)

• first-hand hearsay—

• civil proceedings, if the maker of the representation is unavailable (section 63) or available (section 64)

• criminal proceedings, if the maker of the representation is unavailable (section 65) or available (section 66)

• contemporaneous statements about a person's health etc. (section 66A)

• business records (section 69)

• tags and labels (section 70)

• electronic communications (section 71)

• Aboriginal and Torres Strait Islander traditional laws and customs (section 72)

• marriage, family history or family relationships (section 73)

• public or general rights (section 74)

• use of evidence in interlocutory proceedings (section 75)

• admissions (section 81)

• representations about employment or authority (section 87(2))

• exceptions to the rule excluding evidence of judgments and convictions (section 92(3))

• character of and expert opinion about an accused (sections 110 and 111).

Examples to s. 59 amended by No. 68/2009 s. 97(Sch. item 55.10).

Examples

1 D is the accused in a sexual assault trial. W has made a statement to the police that X told W that X had seen D leave a night club with the victim shortly before the sexual assault is alleged to have occurred. Unless an exception to the hearsay rule applies, evidence of what X told W cannot be given at the trial.

2 P had told W that the handbrake on W's car did not work. Unless an exception to the hearsay rule applies, evidence of that statement cannot be given by P, W or anyone else to prove that the handbrake was defective.

3 W had bought a video cassette recorder and written down its serial number on a document. Unless an exception to the hearsay rule applies, the document is inadmissible to prove that a video cassette recorder later found in D's possession was the video cassette recorder bought by W.

60 Exception—evidence relevant for a non-hearsay purpose

(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)).

Subsection (2) was inserted as a response to the decision of the High Court of Australia in Lee v The Queen (1998) 195 CLR 594.

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

The admission might still be admissible under section 81 as an exception to the hearsay rule if it is "first-hand" hearsay—see section 82.

61 Exceptions to the hearsay rule dependant on competency

(1) 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.

For the admissibility of such contemporaneous representations, see section 66A.

(3) For the purposes 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.

Division 2—"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) 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.

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 that is 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.

1 Section 67 imposes notice requirements relating to this subsection.

2 Clause 4 of Part 2 of the Dictionary is about the availability of persons.

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 that is 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.

Section 67 imposes notice requirements relating to this subsection. Section 68 is about objections to notices that relate to this subsection.

(3) 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 that is 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.

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) The hearsay rule does not apply to evidence of a previous representation that is 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.

S. 65(3) amended by No. 68/2009 s. 97(Sch. item 55.11).

(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 accused 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.

S. 65(4) amended by No. 68/2009 s. 97(Sch. item 55.12).

(4) If there is more than one accused 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 an accused who did not cross-examine, and did not have a reasonable opportunity to cross-examine, the person about the representation.

S. 65(5) amended by No. 68/2009 s. 97(Sch. item 55.13).

(5) For the purposes of subsections (3) and (4), an accused is taken to have had a reasonable opportunity to cross-examine a person if the accused 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 purposes 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 has 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—

S. 65(8)(a) amended by No. 68/2009 s. 97(Sch. item 55.14).

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

S. 65(8)(b) amended by No. 68/2009 s. 97(Sch. item 55.14).

(b) a document tendered as evidence by an accused 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.

S. 65(9) amended by No. 68/2009 s. 97(Sch. item 55.15).

(9) If evidence of a previous representation about a matter has been adduced by an accused 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.

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.

S. 66(2) substituted by No. 37/2017 s. 17.

(2) The hearsay rule does not apply to evidence of the representation that is given by the person who made the representation or a person who saw, heard or otherwise perceived the representation being made if—

(a) the person who made the representation has been or is to be called to give evidence; and

(b) either—

(i) when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation; or

(ii) the person who made the representation is a victim of an offence to which the proceeding relates and was under the age of 18 years when the representation was made.

Subsection (2) differs from the Commonwealth Act and New South Wales Act.

(2A) 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.

Subsection (2A) was inserted as a response to the decision of the High Court of Australia in Graham v The Queen (1998) 195 CLR 606.

(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 etc.

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.

67 Notice to be given

(1) Sections 63(2), 64(2) and 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) Notices given under subsection (1) are to be given in accordance with any regulations or rules of court made for the purposes of this section.

(3) The notice must state—

(a) the particular 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 may, on the application of a party, direct that one or more of those subsections is to apply despite the party's failure to give notice.

(5) The direction—

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

(b) in particular, may provide that, in relation to specified evidence, the subsection or subsections concerned apply with such modifications as the court specifies.

68 Objections 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 may, not later than 21 days after notice has been given, 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 may, on the application of a party, determine the objection at or before the hearing.

(4) If the objection is unreasonable, the court may order that, in any event, 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.

This subsection differs from section 68(4) of the Commonwealth Act because of the different way costs are ascertained by Victorian courts.

Division 3—Other exceptions to the hearsay rule

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 purposes 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).

1 Sections 48, 49, 50, 146, 147 and 150(1) are relevant to the mode of proof, and authentication, of business records.

2 Section 182 of the Commonwealth Act gives section 69 of the Commonwealth Act a wider application in relation to Commonwealth records.

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 so 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 the contents (if any) of the object.

The Commonwealth Act has an additional subsection. It provides that the exception does not apply to Customs and Excise prosecutions. Section 5 of the Commonwealth Act extends the application of that subsection to proceedings in all Australian courts.

71 Exception—electronic communications

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.

1 Division 3 of Part 4.3 contains presumptions about electronic communications.

2 Section 182 of the Commonwealth Act gives section 71 of the Commonwealth Act a wider application in relation to Commonwealth records.

3 Electronic communication is defined in the Dictionary.

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

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.

Section 72 formerly provided an exception for contemporaneous statements about a person's health etc. Such provision can now be found in section 66A.

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.

S. 73(2) amended by No. 68/2009 s. 97(Sch. item 55.16(a)).

(2) In a criminal proceeding, subsection (1) does not apply to evidence adduced by an accused unless—

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

S. 73(2)(b) amended by No. 68/2009 s. 97(Sch. item 55.16 (b)(c)).

(b) the accused has given reasonable notice in writing to each other party of the intention of the accused 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.

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.

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.

Part 3.3—Opinion

76 The opinion rule

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

1 The Commonwealth Act and New South Wales Act include an additional subsection.

2 Specific exceptions to the opinion rule are as follows—

• summaries of voluminous or complex documents (section 50(3))

• evidence relevant otherwise than as opinion evidence (section 77)

• lay opinion (section 78)

• Aboriginal and Torres Strait Islander traditional laws and customs (section 78A)

• expert opinion (section 79)

• admissions (section 81)

• exceptions to the rule excluding evidence of judgments and convictions (section 92(3))

• character of and expert opinion about an accused (sections 110 and 111).

Examples

1 P sues D, her doctor, for the negligent performance of a surgical operation. Unless an exception to the opinion rule applies, P's neighbour, W, who had the same operation, cannot give evidence of his opinion that D had not performed the operation as well as his own.

2 P considers that electrical work that D, an electrician, has done for her is unsatisfactory. Unless an exception to the opinion rule applies, P cannot give evidence of her opinion that D does not have the necessary skills to do electrical work.

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.

78 Exception—lay opinions

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

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.

79 Exception—opinions based on specialised knowledge

(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.

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 3.4—Admissions

Note

Admission is defined in the Dictionary.

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) that was 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.

Specific exclusionary rules relating to admissions are as follows—

• evidence of admissions that is not first-hand (section 82)

• use of admissions against third parties (section 83)

• admissions influenced by violence and certain other conduct (section 84)

• unreliable admissions of an accused (section 85)

• records of oral questioning of an accused (section 86)

D admits to W, his best friend, that he sexually assaulted V. In D's trial for the sexual assault, the prosecution may lead evidence from W—

(a) that D made the admission to W as proof of the truth of that admission; and

(b) that W formed the opinion that D was sane when he made the admission.

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.

Section 60 does not apply in a criminal proceeding to evidence of an admission.

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 part only of the evidence.

(4) In this section, third party means a party to the proceeding concerned, other than the party who—

(a) made the admission; or

(b) adduced the evidence.

84 Exclusion of admissions 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, whether towards the person who made the admission or towards another person; or

(b) a threat of conduct of that kind.

(2) Subsection (1) only applies 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.

S. 85 (Heading) amended by No. 68/2009 s. 97(Sch. item 55.17).

85 Criminal proceedings—reliability of admissions by accused

S. 85(1) amended by No. 68/2009 s. 97(Sch. item 55.18(a)).

(1) This section applies only in a criminal proceeding and only to evidence of an admission made by an accused—

(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

S. 85(1)(b) amended by No. 68/2009 s. 97(Sch. item 55.18(b)).

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

Subsection (1) was inserted as a response to the decision of the High Court of Australia in Kelly v The Queen (2004) 218 CLR 216.

(2) Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to 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 purposes 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.

86 Exclusion of records of oral questioning

S. 86(1) amended by No. 68/2009 s. 97(Sch. item 55.19(a)).

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

S. 86(2) amended by No. 68/2009 s. 97(Sch. item 55.19(b)).

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

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

(4) In this section, 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.

See also sections 83 and 84 of the Criminal Procedure Act 2009 which relate to the admissibility of evidence in the absence of an accused in a summary hearing.

87 Admissions 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 purposes 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.

88 Proof of admissions

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 he or she made the admission.

89 Evidence of silence

(1) 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.

90 Discretion to exclude admissions

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

S. 90(b) amended by No. 68/2009 s. 97(Sch. item 55.20).

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

Part 3.11 contains other exclusionary discretions that are applicable to admissions.

Part 3.5—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.

Section 178 (Convictions, acquittals and other judicial proceedings) provides for certificate evidence of decisions.

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.

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 3.6—Tendency and coincidence

Note to Pt 3.6 (Heading) inserted by No. 14/2015 s. 71.

See also Division 2 of Part 4 of the Jury Directions Act 2015.

94 Application

(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.

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.

96 Failure to act

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

97 The tendency rule

(1) 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.

The tendency rule is subject to specific exceptions concerning character of and expert opinion about an accused (sections 110 and 111). Other provisions of this Act, or of other laws, may operate as further exceptions.

98 The coincidence rule

(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.

One of the events referred to in subsection (1) may be an event the occurrence of which is a fact 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.

Other provisions of this Act, or of other laws, may operate as exceptions to the coincidence rule.

99 Requirements for notices

Notices given under section 97 or 98 are 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

(1) The court may, on the application of a party, 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 may, on the application of a party, 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) as 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 prosecution

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

S. 101(2) amended by No. 68/2009 s. 97(Sch. item 55.21).

(2) Tendency evidence about an accused, or coincidence evidence about an accused, that is adduced by the prosecution cannot be used against the accused unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused.

S. 101(3) amended by No. 68/2009 s. 97(Sch. item 55.21(b)).

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

S. 101(4) amended by No. 68/2009 s. 97(Sch. item 55.21(b)).

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

Part 3.7—Credibility

Division 1—Credibility evidence

101A Credibility evidence

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 3.2 to 3.6.

1 Sections 60 and 77 will not affect the application of paragraph (b), because they cannot apply to evidence that is yet to be admitted.

2 Section 101A was inserted as a response to the decision of the High Court of Australia in Adam v The Queen (2001) 207 CLR 96.

Division 2—Credibility of witnesses

102 The credibility rule

Credibility evidence about a witness is not admissible.

1 Specific exceptions to the credibility rule are as follows—

• evidence adduced in cross-examination (sections 103 and 104)

• evidence in rebuttal of denials (section 106)

• evidence to re-establish credibility (section 108)

• evidence of persons with specialised knowledge (section 108C)

• character of accused persons (section 110)

2 Sections 108A and 108B deal with the admission of credibility evidence about a person who has made a previous representation but is not a witness.

103 Exception—cross-examination as to credibility

(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 to which the court may have regard 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 protections—cross-examination as to credibility

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

S. 104(2) amended by No. 68/2009 s. 97(Sch. item 55.22).

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

S. 104(3) amended by No. 68/2009 s. 97(Sch. item 55.23).

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

(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) has made a prior inconsistent statement.

S. 104(4) amended by No. 68/2009 s. 97(Sch. item 55.23).

(4) Leave must not be given for cross-examination by the prosecutor under subsection (2) unless evidence adduced by the accused has been admitted that—

(a) tends to prove that a witness called by the prosecutor has a tendency to be untruthful; and

(b) is relevant solely or mainly to the witness's credibility.

(5) A reference in subsection (4) to evidence does not include a reference to evidence of conduct in relation to—

S. 104(5)(a) amended by No. 68/2009 s. 97(Sch. item 55.24).

(a) the events in relation to which the accused is being prosecuted; or

S. 104(5)(b) amended by No. 68/2009 s. 97(Sch. item 55.24).

(b) the investigation of the offence for which the accused is being prosecuted.

S. 104(6) amended by No. 68/2009 s. 97(Sch. item 55.25).

(6) Leave is not to be given for cross-examination by another accused unless—

S. 104(6)(a) amended by No. 68/2009 s. 97(Sch. item 55.25).

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

(b) that evidence has been admitted.

S. 105 (Heading) amended by No. 68/2009 s. 97(Sch. item 55.26).

105 Further protections—accused making unsworn statements

The Commonwealth Act previously included a provision which set out the situations in which where a defendant in a criminal proceeding had made an unsworn statement evidence might have been adduced from a person relating solely to the credibility of the defendant.

106 Exception—rebutting denials by other evidence

(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 Exception—application of certain provisions to makers of representations

This section has been repealed from the Commonwealth Act and New South Wales Act.

108 Exception—re-establishing credibility

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

(2) * * * * *

The Commonwealth Act previously included a subsection referring to section 105 of that Act.

(3) 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 re-constructed (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.

Division 3—Credibility of persons who are not witnesses

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

(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 to which the court may have regard 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

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

S. 108B(2) amended by No. 68/2009 s. 97(Sch. item 55.27(a)).

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

S. 108B(3) amended by No. 68/2009 s. 97(Sch. item 55.27(b)).

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

(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.

S. 108B(4) amended by No. 68/2009 s. 97(Sch. item 55.27(b)).

(4) The prosecution must not be given leave under subsection (2) unless evidence adduced by the accused has been admitted that—

(a) tends to prove that a witness called by the prosecution has a tendency to be untruthful; and

(b) is relevant solely or mainly to the witness's credibility.

(5) A reference in subsection (4) to evidence does not include a reference to evidence of conduct in relation to—

S. 108B(5)(a) amended by No. 68/2009 s. 97(Sch. item 55.27(b)).

(a) the events in relation to which the accused is being prosecuted; or

S. 108B(5)(b) amended by No. 68/2009 s. 97(Sch. item 55.27(b)).

(b) the investigation of the offence for which the accused is being prosecuted.

S. 108B(6) amended by No. 68/2009 s. 97(Sch. item 55.27 (b)(c)).

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

Division 4—Persons with specialised knowledge

108C Exception—evidence of persons with specialised knowledge

(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 3.8—Character

109 Application

This Part applies only in a criminal proceeding.

S. 110 (Heading) amended by No. 68/2009 s. 97(Sch. item 55.28).

110 Evidence about character of an accused

S. 110(1) amended by No. 68/2009 s. 97(Sch. item 55.29).

(1) The hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced by an accused to prove (directly or by implication) that the accused is, either generally or in a particular respect, a person of good character.

S. 110(2) amended by No. 68/2009 s. 97(Sch. item 55.29).

(2) If evidence adduced to prove (directly or by implication) that an accused 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 accused is not generally a person of good character.

S. 110(3) amended by No. 68/2009 s. 97(Sch. item 55.29).

(3) If evidence adduced to prove (directly or by implication) that an accused 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 accused is not a person of good character in that respect.

The Commonwealth Act previously included an additional subsection relating to unsworn statements.

111 Evidence about character of co-accused

S. 111(1) amended by No. 68/2009 s. 97(Sch. item 55.30(a)).

(1) The hearsay rule and the tendency rule do not apply to evidence of the character of an accused if—

S. 111(1)(a) amended by No. 68/2009 s. 97(Sch. item 55.30(b)).

(a) the evidence is evidence of an opinion about the accused adduced by another accused; 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.

S. 112 amended by No. 68/2009 s. 97(Sch. item 55.31).

112 Leave required to cross-examine about character of accused or co-accused

An accused 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 3.9—Identification evidence

Note

Identification evidence is defined in the Dictionary.

113 Application of Part

This Part applies only in a criminal proceeding.

114 Exclusion of visual identification evidence

(1) In this section, visual identification evidence means identification evidence relating to an identification based wholly or partly on what a person saw but does not include picture identification evidence.

S. 114(2) amended by No. 68/2009 s. 97(Sch. item 55.32).

(2) Visual identification evidence adduced by the prosecutor is not admissible unless—

S. 114(2)(a) amended by No. 68/2009 s. 97(Sch. item 55.32).

(a) an identification parade that included the accused was held before the identification was made; or

(b) it would not have been reasonable to have held such a parade; or

S. 114(2)(c) amended by No. 68/2009 s. 97(Sch. item 55.32).

(c) the accused refused to take part in such a parade—

and the identification was made without the person who made it having been intentionally influenced to identify the accused.

(3) Without limiting the matters that may be taken into account by the court in determining whether it was reasonable to hold an identification parade, it is to take into account—

(a) the kind of offence, and the gravity of the offence, concerned; and

(b) the importance of the evidence; and

(c) the practicality of holding an identification parade having regard, among other things—

S. 114(3)(c)(i) amended by No. 68/2009 s. 97(Sch. item 55.32).

(i) if the accused failed to cooperate in the conduct of the parade—to the manner and extent of, and the reason (if any) for, the failure; and

(ii) in any case—to whether the identification was made at or about the time of the commission of the offence; and

S. 114(3)(d) amended by No. 68/2009 s. 97(Sch. item 55.32).

(d) the appropriateness of holding an identification parade having regard, among other things, to the relationship (if any) between the accused and the person who made the identification.

S. 114(4) amended by No. 68/2009 s. 97(Sch. item 55.32).

(4) It is presumed that it would not have been reasonable to have held an identification parade if it would have been unfair to the accused for such a parade to have been held.

(5) If—

S. 114(5)(a) amended by Nos 68/2009 s. 97(Sch. item 55.32), 17/2014 s. 160(Sch. 2 item 39.3).

(a) the accused refused to take part in an identification parade unless an Australian legal practitioner acting for the accused, or another person chosen by the accused, was present while it was being held; and

S. 114(5)(b) amended by No. 17/2014 s. 160(Sch. 2 item 39.3).

(b) there were, at the time when the parade was to have been conducted, reasonable grounds to believe that it was not reasonably practicable for such an Australian legal practitioner or person to be present—

it is presumed that it would not have been reasonable to have held an identification parade at that time.

(6) In determining whether it was reasonable to have held an identification parade, the court is not to take into account the availability of pictures or photographs that could be used in making identifications.

115 Exclusion of evidence of identification by pictures

(1) In this section, picture identification evidence means identification evidence relating to an identification made wholly or partly by the person who made the identification examining pictures kept for the use of police officers.

(2) Picture identification evidence adduced by the prosecutor is not admissible if the pictures examined suggest that they are pictures of persons in police custody.

(3) Subject to subsection (4), picture identification evidence adduced by the prosecutor is not admissible if—

S. 115(3)(a) amended by No. 68/2009 s. 97(Sch. item 55.33(a)).

(a) when the pictures were examined, the accused was in the custody of a police officer of the police force investigating the commission of the offence with which the accused has been charged; and

S. 115(3)(b) amended by No. 68/2009 s. 97(Sch. item 55.33(a)).

(b) the picture of the accused that was examined was made before the accused was taken into that police custody.

(4) Subsection (3) does not apply if—

S. 115(4)(a) amended by No. 68/2009 s. 97(Sch. item 55.33).

(a) the appearance of the accused had changed significantly between the time when the offence was committed and the time when the accused was taken into that custody; or

S. 115(4)(b) amended by No. 68/2009 s. 97(Sch. item 55.33(a)).

(b) it was not reasonably practicable to make a picture of the accused after the accused was taken into that custody.

S. 115(5) amended by No. 68/2009 s. 97(Sch. item 55.33(a)).

(5) Picture identification evidence adduced by the prosecutor is not admissible if, when the pictures were examined, the accused was in the custody of a police officer of the police force investigating the commission of the offence with which the accused has been charged, unless—

S. 115(5)(a) amended by No. 68/2009 s. 97(Sch. item 55.33(a)).

(a) the accused refused to take part in an identification parade; or

S. 115(5)(b) amended by No. 68/2009 s. 97(Sch. item 55.33).

(b) the appearance of the accused had changed significantly between the time when the offence was committed and the time when the accused was taken into that custody; or

S. 115(5)(c) amended by No. 68/2009 s. 97(Sch. item 55.33(a)).

(c) it would not have been reasonable to have held an identification parade that included the accused.

(6) Sections 114(3), (4), (5) and (6) apply in determining, for the purposes of subsection (5)(c) of this section, whether it would have been reasonable to have held an identification parade.

S. 115(7) amended by No. 68/2009 s. 97(Sch. item 55.33(a)).

(7) If picture identification evidence adduced by the prosecutor is admitted into evidence, the judge must, on the request of the accused—

S. 115(7)(a) amended by No. 68/2009 s. 97(Sch. item 55.33(a)).

(a) if the picture of the accused was made after the accused was taken into that custody—inform the jury that the picture was made after the accused was taken into that custody; or

S. 115(7)(b) amended by No. 68/2009 s. 97(Sch. item 55.33(a)).

(b) otherwise—warn the jury that they must not assume that the accused has a criminal record or has previously been charged with an offence.

Note to s. 115(7) substituted by No. 14/2015 s. 72.

Division 4 of Part 4 of the Jury Directions Act 2015 also deals with warnings about identification evidence.

S. 115(8) amended by No. 68/2009 s. 97(Sch. item 55.33(a)).

(8) This section does not render inadmissible picture identification evidence adduced by the prosecutor that contradicts or qualifies picture identification evidence adduced by the accused.

(9) This section applies in addition to section 114.

(10) In this section—

(a) a reference to a picture includes a reference to a photograph; and

(b) a reference to making a picture includes a reference to taking a photograph.

116 Directions to jury

S. 116(1)(2) repealed by No. 14/2015 s. 73(1).

Note to s. 116 inserted by No. 14/2015 s. 73(2).

Section 116 of the Commonwealth Act and New South Wales Act requires the judge to give certain directions to the jury relating to identification evidence. Division 4 of Part 4 of the Jury Directions Act 2015 contains provisions relating to identification evidence that apply in criminal trials.

Part 3.10—Privileges

Division 1—Client legal privilege

117 Definitions

(1) In this Division—

client includes the following—

(a) 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;

S. 117(1) def. of lawyer amended by Nos 17/2014 s. 160(Sch. 2 item 39.4), 38/2017 s. 85.

lawyer means—

(a) an Australian lawyer; and

(b) a non-participant registered foreign lawyer; and

(c) a 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

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) 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

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.

120 Unrepresented parties

(1) Evidence is not to be adduced if, on objection by a party who is not represented in the proceeding by a lawyer, the court finds that adducing the evidence would result in disclosure of—

(a) a confidential communication between the party and another person; or

(b) the contents of a confidential document (whether delivered or not) that was prepared, either by or at the direction or request of, the party—

for the dominant purpose of preparing for or conducting the proceeding.

(2) * * * * *

121 Loss of client legal privilege—generally

(1) This Division does not prevent the adducing of evidence relevant to a question concerning the intentions, or competence in law, of a client or party who has died.

(2) This Division does not prevent the adducing of evidence if, were the evidence not adduced, the court would be prevented, or it could reasonably be expected that the court would be prevented, from enforcing an order of an Australian court.

(3) This Division does not prevent the adducing of evidence of a communication or document that affects a right of a person.

122 Loss of client legal privilege—consent and related matters

(1) This Division does not prevent the adducing of evidence given with the consent of the client or party concerned.

(2) Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120.

(3) Without limiting subsection (2), a client or party is taken to have so acted if—

(a) the client or party knowingly and voluntarily disclosed the substance of the evidence to another person; or

(b) the substance of the evidence has been disclosed with the express or implied consent of the client or party.

(4) The reference in subsection (3)(a) to a knowing and voluntary disclosure does not include a reference to a disclosure by a person who was, at the time of the disclosure, an employee or agent of the client or party or of a lawyer of the client or party unless the employee or agent was authorised by the client, party or lawyer to make the disclosure.

(5) A client or party is not taken to have acted in a manner inconsistent with the client or party objecting to the adducing of the evidence merely because—

(a) the substance of the evidence has been disclosed—

(i) in the course of making a confidential communication or preparing a confidential document; or

(ii) as a result of duress or deception; or

(iii) under compulsion of law; or

(iv) if the client or party is a body established by, or a person holding an office under, an Australian law—to the Minister, or the Minister of the Commonwealth, the State or Territory, administering the law, or part of the law, under which the body is established or the office is held; or

(b) of a disclosure by a client to another person if the disclosure concerns a matter in relation to which the same lawyer is providing, or is to provide, professional legal services to both the client and the other person; or

(c) of a disclosure to a person with whom the client or party had, at the time of the disclosure, a common interest relating to the proceeding or an anticipated or pending proceeding in an Australian court or a foreign court.

(6) This Division does not prevent the adducing of evidence of a document that a witness has used to try to revive the witness's memory about a fact or opinion or has used as mentioned in section 32 (Attempts to revive memory in court) or 33 (Evidence given by police officers).

S. 123 (Heading) amended by No. 68/2009 s. 97(Sch. item 55.34).

S. 123 amended by No. 68/2009 s. 97(Sch. item 55.35(a)).

123 Loss of client legal privilege—accused

In a criminal proceeding, this Division does not prevent an accused from adducing evidence unless it is evidence of—

S. 123(a) amended by No. 68/2009 s. 97(Sch. item 55.35(b)).

(a) a confidential communication made between an associated accused and a lawyer acting for that person in connection with the prosecution of that person; or

S. 123(b) amended by No. 68/2009 s. 97(Sch. item 55.35(b)).

(b) the contents of a confidential document prepared by an associated accused or by a lawyer acting for that person in connection with the prosecution of that person.

Note

Associated accused is defined in the Dictionary.

124 Loss of client legal privilege—joint clients

(1) This section only applies to a civil proceeding in connection with which 2 or more parties have, before the commencement of the proceeding, jointly retained a lawyer in relation to the same matter.

(2) This Division does not prevent one of those parties from adducing evidence of—

(a) a communication made by any one of them to the lawyer; or

(b) the contents of a confidential document prepared by or at the direction or request of any one of them—

in connection with that matter.

125 Loss of client legal privilege—misconduct

(1) This Division does not prevent the adducing of evidence of—

(a) a communication made or the contents of a document prepared by a client or lawyer (or both), or a party who is not represented in the proceeding by a lawyer, in furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty; or

(b) a communication or the contents of a document that the client or lawyer (or both), or the party, knew or ought reasonably to have known was made or prepared in furtherance of a deliberate abuse of a power.

(2) For the purposes of this section, if the commission of the fraud, offence or act, or the abuse of power, is a fact in issue and there are reasonable grounds for finding that—

(a) the fraud, offence or act, or the abuse of power, was committed; and

(b) a communication was made or document prepared in furtherance of the commission of the fraud, offence or act or the abuse of power—

the court may find that the communication was so made or the document so prepared.

(3) In this section, power means a power conferred by or under an Australian law.

126 Loss of client legal privilege—related communications and documents

If, because of the application of section 121, 122, 123, 124 or 125, this Division does not prevent the adducing of evidence of a communication or the contents of a document, those sections do not prevent the adducing of evidence of another communication or document if it is reasonably necessary to enable a proper understanding of the communication or document.

A lawyer advises his client to understate her income for the previous year to evade taxation because of her potential tax liability "as set out in my previous letter to you dated 11 August 1994". In proceedings against the taxpayer for tax evasion, evidence of the contents of the letter dated 11 August 1994 may be admissible (even if that letter would otherwise be privileged) to enable a proper understanding of the second letter.

Division 1A—Professional confidential relationship privilege

The Commonwealth Act and New South Wales Act include this Division.

Division 1B—Sexual assault communications privilege

The New South Wales Act includes this Division.

Ch. 3 Pt 3.10 Div. 1C (Heading and ss 126J, 126K) inserted by No. 52/2012 s. 3.

Division 1C—Journalist privilege

S. 126J inserted by No. 52/2012 s. 3.

126J Definitions

(1) In this Division—

informant means a person who gives information to a journalist in the normal course of the journalist's work in the expectation that the information may be published in a news medium;

journalist means a person engaged in the profession or occupation of journalism in connection with the publication of information, comment, opinion or analysis in a news medium;

news medium means a medium for the dissemination to the public or a section of the public of news and observations on news.

(2) For the purpose of the definition of journalist, in determining if a person is engaged in the profession or occupation of journalism regard must be had to the following factors—

(a) whether a significant proportion of the person's professional activity involves—

(i) the practice of collecting and preparing information having the character of news or current affairs; or

(ii) commenting or providing opinion on or analysis of news or current affairs—

for dissemination in a news medium;

(b) whether information, having the character of news or current affairs, collected and prepared by the person is regularly published in a news medium;

(c) whether the person's comments or opinion on or analysis of news or current affairs is regularly published in a news medium;

(d) whether, in respect of the publication of—

(i) any information collected or prepared by the person; or

(ii) any comment or opinion on or analysis of news or current affairs by the person—

the person or the publisher of the information, comment, opinion or analysis is accountable to comply (through a complaints process) with recognised journalistic or media professional standards or codes of practice.

S. 126K inserted by No. 52/2012 s. 3.

126K Journalist privilege relating to identity of informant

(1) If a journalist, in the course of the journalist's work, has promised an informant not to disclose the informant's identity, neither the journalist nor his or her employer is compellable to give evidence that would disclose the identity of the informant or enable that identity to be ascertained.

(2) The court may, on the application of a party, order that subsection (1) is not to apply if it is satisfied that, having regard to the issues to be determined in the proceeding, the public interest in the disclosure of the identity of the informant outweighs—

(a) any likely adverse effect of the disclosure on the informant or any other person; and

(b) the public interest in the communication of facts and opinion to the public by the news media and, accordingly also, in the ability of the news media to access sources of facts.

(3) An order under subsection (2) may be made subject to such terms and conditions (if any) as the court thinks fit.

Division 2—Other privileges

127 Religious confessions

(1) A person who is or was a member of the clergy of any church or religious denomination is entitled to refuse to divulge that a religious confession was made, or the contents of a religious confession made, to the person when a member of the clergy.

S. 127(2) substituted by No. 30/2019 s. 18.

(2) Subsection (1) does not apply—

(a) if the communication involved in the religious confession was made for a criminal purpose; or

(b) in a proceeding for an offence against section 184 of the Children, Youth and Families Act 2005; or

(c) in a proceeding for an offence against section 327(2) of the Crimes Act 1958.

(3) This section applies even if an Act provides—

(a) that the rules of evidence do not apply or that a person or body is not bound by the rules of evidence; or

(b) that a person is not excused from answering any question or producing any document or other thing on the ground of privilege or any other ground.

(4) In this section, religious confession means a confession made by a person to a member of the clergy in the member's professional capacity according to the ritual of the church or religious denomination concerned.

128 Privilege in respect of self-incrimination in other proceedings

(1) This section applies if a witness objects to giving particular evidence, or evidence on a particular matter, on the ground that the evidence may tend to prove that the witness—

(a) has committed an offence against or arising under an Australian law or a law of a foreign country; or

(b) is liable to a civil penalty.

(2) The court must determine whether or not there are reasonable grounds for the objection.

S. 128(3) amended by No. 52/2012 s. 4(1).

(3) Subject to subsection (4), if the court determines that there are reasonable grounds for the objection, the court is not to require the witness to give the evidence, and is to inform the witness—

(a) that the witness need not give the evidence unless required by the court to do so under subsection (4); and

(b) that the court will give a certificate under this section if—

(i) the witness willingly gives the evidence without being required to do so under subsection (4); or

(ii) the witness gives the evidence after being required to do so under subsection (4); and

(c) of the effect of such a certificate.

(4) The court may require the witness to give the evidence if the court is satisfied that—

(a) the evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country; and

(b) the interests of justice require that the witness give the evidence.

(5) If the witness either willingly gives the evidence without being required to do so under subsection (4), or gives it after being required to do so under that subsection, the court must cause the witness to be given a certificate under this section in respect of the evidence.

(6) The court is also to cause a witness to be given a certificate under this section if—

(a) the objection has been overruled; and

(b) after the evidence has been given, the court finds that there were reasonable grounds for the objection.

(7) In any proceeding in a Victorian court or before any person or body authorised by a law of this State, or by consent of parties, to hear, receive and examine evidence—

(a) evidence given by a person in respect of which a certificate under this section has been given; and

S. 128(7)(b) amended by No. 52/2012 s. 4(2).

(b) evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence—

cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence.

This subsection differs from section 128(7) of the Commonwealth Act. The Commonwealth provision refers
to an "Australian Court" instead of a "Victorian court".

(8) Subsection (7) has effect despite any challenge, review, quashing or calling into question on any ground of the decision to give, or the validity of, the certificate concerned.

S. 128(9) amended by No. 68/2009 s. 97(Sch. item 55.36).

(9) If an accused in a criminal proceeding for an offence is given a certificate under this section, subsection (7) does not apply in a proceeding that is a retrial of the accused for the same offence or a trial of the accused for an offence arising out of the same facts that gave rise to that offence.

S. 128(10) amended by No. 68/2009 s. 97(Sch. item 55.37).

(10) In a criminal proceeding, this section does not apply in relation to the giving of evidence by an accused, being evidence that the accused—

(a) did an act the doing of which is a fact in issue; or

(b) had a state of mind the existence of which is a fact in issue.

(11) A reference in this section to doing an act includes a reference to failing to act.

S. 128(12) inserted by No. 52/2012 s. 4(3).

(12) If a person has been given a certificate under a prescribed State or Territory provision in respect of evidence given by a person in a proceeding in a State or Territory court, the certificate has the same effect, in a proceeding to which this subsection applies, as if it had been given under this section.

S. 128(13) inserted by No. 52/2012 s. 4(3).

(13) For the purposes of subsection (12), a prescribed State or Territory provision is a provision of a law of a State or Territory declared by the regulations to be a prescribed State or Territory provision for the purposes of that subsection.

S. 128(14) inserted by No. 52/2012 s. 4(3).

(14) Subsection (12) applies to a proceeding in relation to which this Act applies because of section 4, other than a proceeding for an offence against a law of the Commonwealth or for the recovery of a civil penalty under a law of the Commonwealth.

Notes to s. 128 amended by No. 52/2012 s. 4(4).

1 Bodies corporate cannot claim this privilege. See section 187.

2 Clause 3 of Part 2 of the Dictionary sets out what is a civil penalty.

3 Section 128(12) to (14) of the Commonwealth Act gives effect to certificates in relation to self-incriminating evidence under this Act in proceedings in federal and ACT courts and in prosecutions for Commonwealth and ACT offences.

4 Subsections (8) and (9) were inserted as a response to the decision of the High Court of Australia in Cornwell v. The Queen [2007] HCA 12 (22 March 2007).

128A Privilege in respect of self-incrimination—exception for certain orders etc.

(1) In this section—

disclosure order means an order made by a Victorian court in a civil proceeding requiring a person to disclose information, as part of, or in connection with a freezing or search order under the Rules of the Supreme Court but does not include an order made by a court under the Proceeds of Crime Act 2002 of the Commonwealth or the Confiscation Act 1997;

This definition differs from the New South Wales Act.

relevant person means a person to whom a disclosure order is directed.

(2) If a relevant person objects to complying with a disclosure order on the grounds that some or all of the information required to be disclosed may tend to prove that the person—

(a) has committed an offence against or arising under an Australian law or a law of a foreign country; or

(b) is liable to a civil penalty—

the person must—

(c) disclose so much of the information required to be disclosed to which no objection is taken; and

(d) prepare an affidavit containing so much of the information required to be disclosed to which objection is taken (the privilege affidavit) and deliver it to the court in a sealed envelope; and

(e) file and serve on each other party a separate affidavit setting out the basis of the objection.

(3) The sealed envelope containing the privilege affidavit must not be opened except as directed by the court.

(4) The court must determine whether or not there are reasonable grounds for the objection.

(5) Subject to subsection (6), if the court finds that there are reasonable grounds for the objection, the court must not require the information contained in the privilege affidavit to be disclosed and must return it to the relevant person.

(6) If the court is satisfied that—

(a) any information disclosed in the privilege affidavit may tend to prove that the relevant person has committed an offence against or arising under, or is liable to a civil penalty under, an Australian law; and

(b) the information does not tend to prove that the relevant person has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country; and

(c) the interests of justice require the information to be disclosed—

the court may make an order requiring the whole or any part of the privilege affidavit containing information of the kind referred to in paragraph (a) to be filed and served on the parties.

(7) If the whole or any part of the privilege affidavit is disclosed (including by order under subsection (6)), the court must cause the relevant person to be given a certificate in respect of the information referred to in subsection (6)(a).

(8) In any proceeding in a Victorian court—

(a) evidence of information disclosed by a relevant person in respect of which a certificate has been given under this section; and

(b) evidence of any information, document or thing obtained as a direct result or indirect consequence of the relevant person having disclosed that information—

cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence concerned.

(9) Subsection (8) does not prevent the use against the relevant person of any information disclosed by a document—

(a) that is an annexure or exhibit to a privilege affidavit prepared by the person in response to a disclosure order; and

(b) that was in existence before the order was made.

(10) Subsection (8) has effect despite any challenge, review, quashing or calling into question on any ground of the decision to give, or the validity of, the certificate concerned.

S. 128A(11) inserted by No. 52/2012 s. 5.

(11) If a person has been given a certificate under a prescribed State or Territory provision in respect of information of a kind referred to in subsection (6)(a), the certificate has the same effect, in a proceeding to which this subsection applies, as if it had been given under this section.

S. 128A(12) inserted by No. 52/2012 s. 5.

(12) For the purposes of subsection (11), a prescribed State or Territory provision is a provision of a law of a State or Territory declared by the regulations to be a prescribed State or Territory provision for the purposes of that subsection.

S. 128A(13) inserted by No. 52/2012 s. 5.

(13) Subsection (11) applies to a proceeding in relation to which this Act applies because of section 4, other than a proceeding for an offence against a law of the Commonwealth or for the recovery of a civil penalty under a law of the Commonwealth.

Division 3—Evidence excluded in the public interest

129 Exclusion of evidence of reasons for judicial etc. decisions

(1) Evidence of the reasons for a decision made by a person who is—

(a) a judge in an Australian or overseas proceeding; or

(b) an arbitrator in respect of a dispute that has been submitted to the person, or to the person and one or more other persons, for arbitration—

or the deliberations of a person so acting in relation to such a decision, must not be given by the person, or a person who was, in relation to the proceeding or arbitration, under the direction or control of that person.

(2) Such evidence must not be given by tendering as evidence a document prepared by such a person.

(3) This section does not prevent the admission or use, in a proceeding, of published reasons for a decision.

(4) In a proceeding, evidence of the reasons for a decision made by a member of a jury in another Australian or overseas proceeding, or of the deliberations of a member of a jury in relation to such a decision, must not be given by any of the members of that jury.

(5) This section does not apply in a proceeding that is—

(a) a prosecution for one or more of the following offences—

(i) attempt to pervert the course of justice;

(ii) perverting the course of justice;

(iii) subornation of perjury;

(iv) embracery;

(v) bribery of public official;

(vi) misconduct in public office;

(vii) an offence against section 52A of the Summary Offences Act 1966 (Offence to harass witness etc.);

(viii) an offence against section 66 (Offences by officials) or 78 (Confidentiality of jury's deliberations) of the Juries Act 2000;

(ix) an offence connected with an offence mentioned in subparagraphs (i) to (viii), including an offence of conspiring to commit such an offence; or

(b) in respect of a contempt of a court; or

(c) by way of appeal from, or judicial review of, a judgment, decree, order or sentence of a court; or

(d) by way of review of an arbitral award; or

(e) a civil proceeding in respect of an act of a judicial officer or arbitrator that was, and that was known at the time by the judicial officer or arbitrator to be, outside the scope of the matters in relation to which the judicial officer or arbitrator had authority to act.

Subsection (5)(a) differs from section 129(5)(a) of the Commonwealth Act and New South Wales Act.

130 Exclusion of evidence of matters of state

(1) If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence.

(2) The court may give such a direction either on its own initiative or on the application of any person (whether or not the person is a party).

(3) In deciding whether to give such a direction, the court may inform itself in any way it thinks fit.

(4) Without limiting the circumstances in which information or a document may be taken for the purposes of subsection (1) to relate to matters of state, the information or document is taken for the purposes of that subsection to relate to matters of state if adducing it as evidence would—

(a) prejudice the security, defence or international relations of Australia; or

(b) damage relations between the Commonwealth and a State or between 2 or more States; or

(c) prejudice the prevention, investigation or prosecution of an offence; or

(d) prejudice the prevention or investigation of, or the conduct of proceedings for recovery of civil penalties brought with respect to, other contraventions of the law; or

(e) disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State; or

(f) prejudice the proper functioning of the government of the Commonwealth or a State.

(5) Without limiting the matters that the court may take into account for the purposes of subsection (1), it is to take into account the following matters—

(a) the importance of the information or the document in the proceeding;

S. 130(5)(b) amended by No. 68/2009 s. 97(Sch. item 55.38).

(b) if the proceeding is a criminal proceeding—whether the party seeking to adduce evidence of the information or document is an accused or the prosecutor;

(c) the nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding;

(d) the likely effect of adducing evidence of the information or document, and the means available to limit its publication;

(e) whether the substance of the information or document has already been published;

S. 130(5)(f) amended by No. 68/2009 s. 97(Sch. item 55.38).

(f) if the proceeding is a criminal proceeding and the party seeking to adduce evidence of the information or document is an accused—whether the direction is to be made subject to the condition that the prosecution be stayed.

(6) A reference in this section to a State includes a reference to a Territory.

131 Exclusion of evidence of settlement negotiations

(1) Evidence is not to be adduced of—

(a) a communication that is made between persons in dispute, or between one or more persons in dispute and a third party, in connection with an attempt to negotiate a settlement of the dispute; or

(b) a document (whether delivered or not) that has been prepared in connection with an attempt to negotiate a settlement of a dispute.

(2) Subsection (1) does not apply if—

(a) the persons in dispute consent to the evidence being adduced in the proceeding concerned or, if any of those persons has tendered the communication or document in evidence in another Australian or overseas proceeding, all the other persons so consent; or

(b) the substance of the evidence has been disclosed with the express or implied consent of all the persons in dispute; or

(c) the substance of the evidence has been partly disclosed with the express or implied consent of the persons in dispute, and full disclosure of the evidence is reasonably necessary to enable a proper understanding of the other evidence that has already been adduced; or

(d) the communication or document included a statement to the effect that it was not to be treated as confidential; or

(e) the evidence tends to contradict or to qualify evidence that has already been admitted about the course of an attempt to settle the dispute; or

(f) the proceeding in which it is sought to adduce the evidence is a proceeding to enforce an agreement between the persons in dispute to settle the dispute, or a proceeding in which the making of such an agreement is in issue; or

(g) evidence that has been adduced in the proceeding, or an inference from evidence that has been adduced in the proceeding, is likely to mislead the court unless evidence of the communication or document is adduced to contradict or to qualify that evidence; or

(h) the communication or document is relevant to determining liability for costs; or

(i) making the communication, or preparing the document, affects a right of a person; or

(j) the communication was made, or the document was prepared, in furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty; or

(k) one of the persons in dispute, or an employee or agent of such a person, knew or ought reasonably to have known that the communication was made, or the document was prepared, in furtherance of a deliberate abuse of a power.

(3) For the purposes of subsection (2)(j), if commission of the fraud, offence or act is a fact in issue and there are reasonable grounds for finding that—

(a) the fraud, offence or act was committed; and

(b) a communication was made or document prepared in furtherance of the commission of the fraud, offence or act—

the court may find that the communication was so made or the document so prepared.

(4) For the purposes of subsection (2)(k), if—

(a) the abuse of power is a fact in issue; and

(b) there are reasonable grounds for finding that a communication was made or document prepared in furtherance of the abuse of power—

the court may find that the communication was so made or the document was so prepared.

(5) In this section—

(a) a reference to a dispute is a reference to a dispute of a kind in respect of which relief may be given in an Australian or overseas proceeding; and

(b) a reference to an attempt to negotiate the settlement of a dispute does not include a reference to an attempt to negotiate the settlement of a criminal proceeding or an anticipated criminal proceeding; and

(c) a reference to a communication made by a person in dispute includes a reference to a communication made by an employee or agent of such a person; and

(d) a reference to the consent of a person in dispute includes a reference to the consent of an employee or agent of such a person, being an employee or agent who is authorised so to consent; and

(e) a reference to commission of an act includes a reference to a failure to act.

(6) In this section, power means a power conferred by or under an Australian law.

Division 4—General

S. 131A (Heading) amended by No. 29/2011 s. 3(Sch. 1 item 35).

131A Application of Part to preliminary proceedings of courts

S. 131A(1)(a) amended by No. 52/2012 s. 6.

(a) a person is required by a disclosure requirement to give information, or to produce a document, which would result in the disclosure of a communication, a document or its contents or other information of a kind referred to in Division 1, 1C or 3; and

(b) the person objects to giving that information or providing that document—

the court must determine the objection by applying the provisions of this Part (other than sections 123 and 128) with any necessary modifications as if the objection to giving information or producing the document were an objection to the giving or adducing of evidence.

(2) In this section, disclosure requirement means a process or order of a court that requires the disclosure of information or a document and includes the following—

(a) a summons or subpoena to produce documents or give evidence;

(b) pre-trial discovery;

(c) non-party discovery;

(d) interrogatories;

(e) a notice to produce;

(f) a request to produce a document under Division 1 of Part 4.6;

(g) a search warrant.

Subsection (2) of the New South Wales Act does not include a reference to a search warrant.

132 Court to inform of rights to make applications and objections

If it appears to the court that a witness or a party may have grounds for making an application or objection under a provision of this Part, the court must satisfy itself (if there is a jury, in the absence of the jury) that the witness or party is aware of the effect of that provision.

133 Court may inspect etc. documents

If a question arises under this Part relating to a document, the court may order that the document be produced to it and may inspect the document for the purpose of determining the question.

134 Inadmissibility of evidence that must not be adduced or given

Evidence that, because of this Part, must not be adduced or given in a proceeding is not admissible in the proceeding.

Part 3.11—Discretionary and mandatory exclusions

135 General discretion to exclude evidence

The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might—

(a) be unfairly prejudicial to a party; or

(b) be misleading or confusing; or

S. 135(c) amended by No. 63/2014 s. 9(1)(a).

(c) cause or result in undue waste of time; or

S. 135(d) inserted by No. 63/2014 s. 9(1)(b).

(d) unnecessarily demean the deceased in a criminal proceeding for a homicide offence.

Note to s. 135 inserted by No. 63/2014 s. 9(2).

This section does not limit evidence of family violence
that may be adduced under Part IC of the Crimes Act 1958.

136 General discretion to limit use of evidence

The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might—

(a) be unfairly prejudicial to a party; or

(b) be misleading or confusing.

S. 137 amended by No. 68/2009 s. 97(Sch. item 55.39).

137 Exclusion of prejudicial evidence in criminal proceedings

In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused.