Evidence Act 2011

1 Name of Act This Act is the Evidence Act 2011.

3 Dictionary The dictionary at the end of this Act is part of this Act. Note 1 The dictionary at the end of this Act defines certain terms used in this Act, and includes references (signpost definitions) to other terms defined elsewhere. For example, the signpost definition ‘Commonwealth record—see the Evidence Act 1995 (Cwlth), dictionary.’ means that the term ‘Commonwealth record’ is defined in that dictionary and the definition applies to this Act. Note 2 A definition in the dictionary (including a signpost definition) applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)). Note 3 This section differs from the Commonwealth Act and NSW Act.

Formal matters Part 1.1

3A Numbering (1) To maintain consistent section numbering between this Act and the Commonwealth Act— (a) if the Commonwealth Act contains a section that is not included in this Act—the section number and heading appearing in the Commonwealth Act are included in this Act despite the omission of the body of the section; and (b) if this Act contains a section that is not included in the Commonwealth Act—the section is numbered so as to maintain consistency in numbering between sections common to both Acts. (2) A section number and heading mentioned in subsection (1) (a) form part of this Act. (3) If a provision of this Act (other than a section) is numbered differently from the equivalent provision of the Commonwealth Act, the provision of this Act may be referred to using the number of the equivalent provision of the Commonwealth Act. Note 1 A note appears under each heading mentioned in s (1) (a) describing the omitted section of the Commonwealth Act. Note 2 A note appears under each section mentioned in s (1) (b) highlighting the non-appearance of an equivalent section in the Commonwealth Act. Note 3 The Commonwealth Act and NSW Act do not include this section.

3B Notes A note included in this Act is explanatory and is not part of this Act. Note 1 See the Legislation Act, s 127 (1), (4) and (5) for the legal status of notes. Note 2 The Commonwealth Act and NSW Act do not include this section.

4 Courts and proceedings to which Act applies (1) This Act applies to all proceedings in an ACT court, including proceedings that— (a) relate to bail; or (b) are interlocutory proceedings or proceedings of a similar kind; or (c) are heard in chambers; or (d) subject to subsection (2), relate to sentencing. (2) If a proceeding relates to sentencing— (a) this Act applies only if the court directs that the law of evidence applies in the proceeding; and (b) if the court states in the direction that the law of evidence applies only in relation to stated matters—the direction has effect accordingly. (3) The court must make a direction under this section if— (a) a party to the proceeding applies for the direction in relation to the proof of a fact; and (b) in the court’s opinion, the proceeding involves proof of the fact, and the fact is or will be significant in deciding a sentence to be imposed in the proceeding. (4) The court must make a direction under this section if the court considers it appropriate in the interests of justice. Note This section differs from the Commonwealth Act, s 4.

Application of this Act Part 1.2

5 Extended application of certain provisions Note The Commonwealth Act includes a provision extending the application of stated provisions of the Commonwealth Act to proceedings in all Australian courts.

6 Territories Note The Commonwealth Act includes a provision extending that Act to each external territory.

7 Act binds Crown Note The Commonwealth Act and NSW Act include a provision binding the Crown. The provision is unnecessary in the ACT (see Legislation Act, s 121).

8 Operation of other Acts This Act does not affect the operation of the provisions of any other Act. 1 Bail Act 1992, s 19 (2)

2 Evidence (Miscellaneous Provisions) Act 1991, ch 5 Note This section differs from the Commonwealth Act, s 8. Differences include additional subsections relating to the operation of the Corporations Act and the Australian Securities and Investments Commission Act 2001 (Cwlth).

8A Offences against Act—application of Criminal Code etc Other legislation applies in relation to offences against this Act. Note 1 Criminal Code The Criminal Code, ch 2 applies to all offences against this Act (see Code, pt 2.1). The chapter sets out the general principles of criminal responsibility (including burdens of proof and general defences), and defines terms used for offences to which the Code applies (eg conduct, intention, recklessness and strict liability). Note 2 Penalty units The Legislation Act, s 133 deals with the meaning of offence penalties that are expressed in penalty units. Note 3 This section differs from the Commonwealth Act, s 8A.

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 a principle or rule mentioned in subsection (1) 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 the 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;

Application of this Act Part 1.2 (c) a court’s power to dispense with the operation of a rule of evidence or procedure in an interlocutory proceeding. Note This section differs from the Commonwealth Act, s 9. That section preserves the written and unwritten laws of States and Territories in relation to certain 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) (Compellability—Sovereign and others) does not affect, and is in addition to, the law relating to those 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 in relation to abuse of process in a proceeding are not affected.

Chapter 2 Giving and presenting evidence Note This chapter is about ways in which evidence is given and presented. • Pt 2.1 is about evidence from witnesses. • Pt 2.2 is about documentary evidence. • Pt 2.3 is about other forms of evidence.

Division 2.1.1 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. Note See s 30 and s 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. (3) A person who is competent to give evidence about a fact is not competent to give sworn evidence about the fact if the person does not have the capacity to understand that, in giving evidence, the person is under an obligation to give truthful evidence. (4) A person who is not competent to give sworn evidence about a fact may, subject to subsection (5), be competent to give unsworn evidence about the fact. (5) A person who, because of subsection (3), is not competent to give sworn evidence is competent to give unsworn evidence if the court has told the person that— (a) it is important to tell the truth; and (b) the person may be asked questions that the person does not know, or cannot remember, the answer to, and that the person should tell the court if this happens; and (c) the person may be asked questions that suggest certain statements are true or untrue and that the person should agree with the statements that the person believes are true and should feel no pressure to agree with statements that the person 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 only because, before the witness finishes giving evidence, the witness dies or ceases to be competent to give evidence.

(8) For the purpose of deciding 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 the matter has been given, or will be able to be given, from 1 or more other people 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 the house or a joint sitting of the Parliament; or (b) if the member is a member of a committee of the house or the Parliament—a meeting of the committee.

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 the proceeding. (2) However, a juror is competent to give evidence in the proceeding about matters affecting conduct of the proceeding. (3) A person who is or was a judge in an Australian or overseas proceeding is not compellable to give evidence about the proceeding

17 Competence and compellability—defendants in criminal (1) This section applies only in a criminal proceeding. (2) A defendant is not competent to give evidence as a witness for the prosecution. (3) An associated defendant is not compellable to give evidence for or against a defendant in a criminal proceeding unless the associated defendant is being tried separately from the defendant. (4) If a witness is an associated defendant who is being tried jointly with the defendant in the proceeding, the court must 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 defendant—see the dictionary.

18 Compellability of domestic partners and others in criminal proceedings generally (1) This section applies only in a criminal proceeding. (2) A person who, when required to give evidence, is the domestic partner, parent or child of a defendant may object to being required— (a) to give evidence; or

(b) to give evidence of a communication between the person and the defendant; as a witness for the prosecution. (3) The objection must be made before the person gives the evidence or as soon as practicable after the person becomes aware of the right 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 must 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 must hear and decide any objection under this section in the jury’s absence. (6) A person who makes an objection under this section to giving evidence or giving evidence of a communication must not be required to give the evidence if the court finds that— (a) there is a likelihood that harm would or might be caused (whether directly or indirectly) to the person, or to the relationship between the person and the defendant, if the person gives the evidence; and (b) the nature and extent of that harm outweighs the desirability of having the evidence given. (7) Without limiting the matters that may be taken into account by the court for subsection (6), it must take into account the following: (a) the nature and gravity of the offence for which the defendant is being prosecuted; (b) the substance and importance of any evidence that the person might give and the weight that is likely to be attached to it; (c) whether any other evidence about the matters to which the evidence of the person would relate is reasonably available to the prosecutor;

(d) the nature of the relationship between the defendant and the person; (e) whether, in giving the evidence, the person would have to disclose matter that was received by the person in confidence from the defendant. (8) If an objection under this section has been decided, 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 domestic partners and others in certain criminal proceedings Section 18 does not apply in a proceeding for an offence against or mentioned in the following provisions: (a) an offence against the Crimes Act 1900, parts 2 to 5, that is an offence against a person under 16 years old; (b) an offence against the following provisions of the Children and Young People Act 2008: (i) section 423 (Offence—contravene care and protection order); (ii) section 789 (Offence—contravene employment prohibition notice); (iii) section 791 (Offence—contravene employment conditions notice); (iv) section 803 (Offence—employment of child or young person under 15 years old in high risk employment); (v) section 804 (Offence—contravene condition of permit);

(c) an offence if the conduct making up the offence is family violence under the Family Violence Act 2016. Note This section differs from the Commonwealth Act and NSW Act, s 19.

20 Comment on failure to give evidence (1) This section applies only in a criminal proceeding for an indictable offence. (2) The judge or any party (other than the prosecutor) may comment on a failure of a defendant to give evidence. (3) However, unless the comment is made by another defendant in the proceeding, the comment must not suggest that the defendant failed to give evidence because the defendant was, or believed that the defendant was, guilty of the offence. (4) The judge or any party (other than the prosecutor) may comment on a failure to give evidence by a person who, at the time of the failure, was— (a) the defendant’s domestic partner; or (b) a parent or child of the defendant. (5) However, unless the comment is made by another defendant in the proceeding, a comment mentioned in subsection (4) must not suggest that the domestic partner, parent or child failed to give evidence because— (a) the defendant was guilty of the offence; or (b) the domestic partner, parent or child believed that the defendant was guilty of the offence. (6) If— (a) 2 or more people are being tried together for an indictable offence; and

Oaths and affirmations Division 2.1.2 (b) comment is made by any of them on the failure of any of them or of the domestic partner, or a parent or child, of any of them to give evidence; the judge may, in addition to commenting on the failure to give evidence, comment on any comment mentioned in paragraph (b).

21 Sworn evidence of witnesses to be on oath or affirmation (1) A witness in a proceeding must 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 (Competence—lack of capacity). (3) A person who is called only to produce a document or thing to the court need not take an oath or make an affirmation before doing so. (4) The witness must take the oath, or make the affirmation, in accordance with the appropriate form in schedule 1 or in a similar form. (5) An affirmation has the same effect for all purposes as an oath.

22 Interpreters and intermediaries to act on oath or affirmation (1) A person must take an oath or make an affirmation before acting as an interpreter or intermediary in a proceeding. (2) An oath taken, or an affirmation made, by a person before acting as an interpreter or intermediary on a day is taken for subsection (1) to be an oath taken or affirmation made by the person for the purposes of any subsequent proceeding in the court on the day the person acts in that capacity. (3) The person must take the oath, or make the affirmation, in accordance with the appropriate form in schedule 1 or in a similar form.

(4) An affirmation has the same effect for all purposes as an oath. Note The Commonwealth Act does not include intermediaries and does not include s (2).

23 Choice of oath or affirmation (1) A person who is to be a witness or act as an interpreter or intermediary in a proceeding may choose whether to take an oath or make an affirmation. (2) The court must tell the person that the person has this choice, unless the court is satisfied that the person has already been told or knows about having 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. Note The Commonwealth Act does not include intermediaries, and s (2) differs from 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 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 regulation. Note The Commonwealth Act does not include an equivalent provision to s 24A.

26 Court’s control over questioning of witnesses The court may make the orders it considers just in relation to— (a) the way in which witnesses are to be questioned; and (b) the production and use of documents and things in connection with the questioning of witnesses; and (c) the order in which parties may question a witness; and (d) the presence and behaviour of any person in connection with the questioning of witnesses.

27 Parties may question witnesses Except as provided by this Act, a party may question any witness.

28 Order of examination-in-chief, cross-examination and re-examination Unless the court otherwise directs— (a) cross-examination of a witness must not take place before the examination-in-chief of the witness; and (b) re-examination of a witness must not 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) The court may, on its own motion or on the application of the party that called the witness, direct that the witness give evidence completely or partly in narrative form. (3) The 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 about 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— (a) through an interpreter under section 30; or (b) with the assistance of an intermediary under the Evidence (Miscellaneous Provisions) Act 1991, chapter 1B (Witness intermediaries—criminal proceedings).

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 the witness’s memory about a fact or opinion unless the court gives leave. deciding whether to give leave, it must take into account— (a) whether the witness will be able to recall the fact or opinion adequately without using the document; and

(b) whether the part of the document that 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 the witness’s memory; or (ii) was, at that time, found by the witness to be accurate. (3) If a witness has, while giving evidence, used a document to try to revive the witness’s memory about a fact or opinion, the witness may, with the leave of the court, read aloud, as part of the witness’s evidence, the part of the document that relates to the fact or opinion. (4) The court must, on the request of a party, give the directions the court thinks fit to ensure that the part of the document that relates to the proceeding is produced to the party.

33 Evidence given by police officers (1) Despite section 32, in a 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 given in that way unless— (a) the statement was made by the police officer at the time of or soon after the events mentioned in the statement happened; and (b) the police officer signed the statement when it was made; and (c) a copy of the statement had been given to the person charged or to the person’s Australian legal practitioner or legal counsel a reasonable time before the hearing of the evidence for the prosecution. (3) A reference in this section to a police officer includes a reference to a person who was a police officer at the time the statement was made.

34 Attempts to revive memory out of court (1) The court may, on the request of a party, give the directions that are appropriate to ensure that stated documents and things used by a witness otherwise than while giving evidence to try to revive the witness’s memory are produced to the party for the purposes of the (2) The court may refuse to admit the evidence given by the witness so far as it concerns a fact about which the witness tried to revive the witness’s memory if, without reasonable excuse, the directions have not been complied with.

35 Effect of calling for production of documents (1) A party must not 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 produced. (2) The party who produces a document 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 served on the person.

Division 2.1.4 Examination-in-chief and re-examination (2) A person ordered to give evidence or to produce documents or things is subject to the same penalties and liabilities as if the person had been served with a subpoena or other process. (3) A party who inspects a document or thing produced to the court because of subsection (1) need not use the document in evidence. Division 2.1.4 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 (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, legal counsel or prosecutor; or (d) the question relates to a matter that is not in dispute; or (e) if the witness has specialised knowledge based on the witness’s training, study or experience—the question is asked for the purpose of obtaining the witness’s opinion about a hypothetical statement of facts about which evidence has been, or is intended to be, given. (2) Unless the court otherwise directs, subsection (1) does not apply in a civil proceeding 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.

Examination-in-chief and re-examination Division 2.1.4 (3) Subsection (1) does not prevent the 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—see 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 this Act (other than section 39 (Limits on re-examination)). (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. Note The rules about admissibility of evidence relevant only to credibility are set out in pt 3.7. (4) Questioning under this section must take place before the other parties cross-examine the witness, unless the court otherwise directs. (5) If the court gives a direction under subsection (4), the order in which the parties question the witness must be as the court directs.

(6) Without limiting the matters that the court may take into account in deciding whether to give leave or a direction under this section, it must 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 someone else; 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.

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

41 Improper questions (1) The court must disallow a question put to a witness in cross-examination, or tell the witness that it need not be answered, if the court is of the opinion that the question (a disallowable question)— (a) is misleading or confusing; or (b) is unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive; or (c) is put to the witness in a manner or tone that is belittling, insulting or otherwise inappropriate; or (d) has no basis other than a stereotype (for example, a stereotype based on the witness’s sex, race, culture, ethnicity, age or mental, intellectual or physical disability). (2) Without limiting the matters the court may take into account for subsection (1), it must take into account— (a) any relevant condition or characteristic of the witness of which the court is, or is made, aware, including age, education, ethnic and cultural background, gender, language background and skills, level of maturity and understanding and personality; and (b) any mental, intellectual or physical disability of which the court is, or is made, aware and to which the witness is, or appears to be, subject; and (c) the context in which the question is put, including— (i) the nature of the proceeding; and (ii) in a criminal proceeding—the nature of the offence to which the proceeding relates; and (iii) the relationship (if any) between the witness and any other party to the proceeding.

(3) A question is not a disallowable question only because— (a) the question challenges the truthfulness of the witness or the consistency or accuracy of any statement made by the witness; or (b) the question requires the witness to discuss a subject that could be considered distasteful to, or private by, the witness. (4) A party may object to a question put to a witness on the ground that it is a disallowable question. (5) However, the duty imposed on the court by this section applies whether or not an objection is raised to a particular question. (6) A failure by the court to disallow a question under this section, or to tell 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. Note A person must not, without the express permission of the court, print or publish any question that the court has disallowed under this section (see s 195).

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. deciding whether to disallow the question or give a direction, it must 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 must disallow the question, or direct the witness not to answer it, if the court is satisfied that the facts 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—see 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 the witness has made a prior inconsistent statement, the cross-examiner must not present evidence of the statement otherwise than from the witness unless, in the cross-examination, the cross-examiner— (a) told the witness 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 the part of the statement that is inconsistent with the witness’s evidence. (3) For the purpose of presenting evidence of the statement, a party may re-open the party’s case.

44 Previous representations of other people (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 people present at the cross-examination hearing the contents; (c) the witness must be asked whether, having examined (or heard) the contents of the document, the witness stands by the evidence that the witness has given; (d) neither the cross-examiner nor the witness may identify the document or disclose any of its contents. (4) A document used in a way mentioned in subsection (3) 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 someone else that is recorded in a document. (2) If the court orders or if another party requires, the party must produce to the court or to the other party— (a) the document; or (b) evidence of the contents of the document that is available to the party. (3) The court may— (a) examine a document or evidence that has been produced under subsection (2); and (b) give directions as to its use; and (c) admit it even if it has not been tendered by a party. (4) Subsection (3) does not permit the court to admit a document or evidence that is not admissible because of chapter 3. (5) The mere production of a document to a witness 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 presented by another party, and on which the witness was not cross-examined, if the evidence 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 presented by another party includes a reference to an inference drawn from, or that the party intends to draw from, the evidence.

Documents Part 2.2

47 Definitions—pt 2.2 (1) For this part, a document in question is a document as to the contents of which it is sought to present evidence. (2) For this part, a reference to a copy of a document in question includes a reference to a document that is not an exact copy of the document in question but that is identical to the document in question in all relevant respects.

48 Proof of contents of documents (1) A party may present evidence of the contents of a document in question by tendering the document in question or by any 1 or more of the following methods: (a) presenting 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 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 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 the 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 the government printer or the government or official printer of the Commonwealth, a State or another Territory; or (ii) by authority of the government of the Territory, the Commonwealth, a State, another Territory or a foreign country; or (iii) by authority of an Australian Parliament, a house of an Australian Parliament or a committee of an Australian Parliament or of a house 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 presents evidence of the contents of a document under subsection (1) (a), the evidence may only be used— (a) in relation to the party’s case against the other party who made the admission; or (b) in relation to the other party’s case against the party who presented the evidence in that way.

Documents Part 2.2 (4) A party may present 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) presenting evidence from a witness of the contents of the document in question. Note 1 The dictionary, pt 2, s 5 is about the availability of documents. Note 2 The Commonwealth Act, s 182 gives the Commonwealth Act, s 48 a

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 presents evidence of the contents of the document in question has, not less than 28 days (or any other period prescribed by regulation or by rules of court) before the day on which the evidence is presented, served on each other party a copy of the document proposed to be tendered; or (b) the court directs that it must apply. Note The Commonwealth Act, s 182 gives the Commonwealth Act, s 49 a

50 Proof of voluminous or complex documents (1) The court may, on the application of a party, direct that the party may present evidence of the contents of 2 or more documents in question in the form of a summary if the court is satisfied that it would not otherwise be possible conveniently to examine the evidence because of the volume or complexity of the documents in question.

(2) The court may only make a direction under subsection (1) if the party seeking to present 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 presented in accordance with a direction under this section.

51 Original document rule abolished The principles and rules of common law that relate to the means of proving the contents of documents are abolished. Note The Commonwealth Act, s 182 gives the provisions of the Commonwealth Act, pt 2.2 a wider application in relation to Commonwealth records and certain Commonwealth documents.

Other evidence Part 2.3

52 Presenting 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 presented 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 must not make an order unless 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 must 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) must not 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.

Note This chapter is about whether evidence presented in a proceeding is admissible. • Pt 3.1 sets out the general inclusionary rule that relevant evidence is admissible. • Pt 3.2 is about the exclusion of hearsay evidence, and exceptions to the hearsay rule. • Pt 3.3 is about exclusion of opinion evidence, and exceptions to the opinion rule. • Pt 3.4 is about admissions and the extent to which they are admissible as exceptions to the hearsay rule and the opinion rule. • Pt 3.5 is about exclusion of certain evidence of judgments and convictions. • Pt 3.6 is about exclusion of evidence of tendency or coincidence, and exceptions to the tendency rule and the coincidence rule. • Pt 3.7 is about exclusion of evidence relevant only to credibility, and exceptions to the credibility rule. • Pt 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. • Pt 3.9 is about the requirements that must be satisfied before identification evidence is admissible. • Pt 3.10 is about the various categories of privilege that may prevent evidence being presented. • Pt 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:

▼ ▼ ▼ ▼ ▼ ▼ ▼ ▼ ▼ ► ► ► ► ► ► ► ► ► Is the evidence relevant? (See pt 3.1). THE EVIDENCE IS NOT ADMISSIBLE No Yes Does the hearsay rule apply? (See pt 3.2. See also pt 3.4 on admissions and pt 3.8 on character evidence.) Yes No Does the opinion rule apply? (See pt 3.3. See also pt 3.4 on admissions and pt 3.8 on character evidence.) Yes No Does the evidence contravene the rule about evidence of judgments and convictions? (See pt 3.5.) Yes No Does the tendency rule or the coincidence rule apply? (See pt 3.6. See also pt 3.8 on character evidence.) Yes No Does the credibility rule apply? (See pt 3.7. See also pt 3.8 on character evidence.) Yes No Does the evidence contravene the rules about identification evidence? (See pt 3.9.) Yes No Does a privilege apply? (See pt 3.10.) Yes No Should the evidence be excluded or must it be excluded? (See pt 3.11.) Yes No THE EVIDENCE IS ADMISSIBLE

Relevance Part 3.1

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 (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 present 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 decision about the question whether evidence presented 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 the finding; or (b) subject to further evidence being admitted at a later stage of the proceeding that will make it reasonably open to make the finding.

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

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.

The hearsay rule Division 3.2.1

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) For this part, a fact mentioned in subsection (1) is an asserted fact. (3) For the purposes of deciding 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. Note Subsection (3) was inserted as a response to the decision of the NSW Supreme Court in R v Hannes (2000) 158 FLR 359. (4) Subsection (1) does not apply to evidence of a representation contained in a certificate or other document given or made under a regulation made under an Act other than this Act to the extent to which the regulation provides that the certificate or other document has evidentiary effect. Note Specific exceptions to the hearsay rule are as follows: • evidence relevant for a non-hearsay purpose (s 60) • first-hand hearsay: – civil proceedings, if the maker of the representation is unavailable (s 63) or available (s 64) – criminal proceedings, if the maker of the representation is unavailable (s 65) or available (s 66) • contemporaneous statements about a person’s health etc (s 66A) • business records (s 69) • tags and labels (s 70) • electronic communications (s 71)

• Aboriginal and Torres Strait Islander traditional laws and customs (s 72) • marriage, family history or family relationships (s 73) • public or general rights (s 74) • use of evidence in interlocutory proceedings (s 75) • admissions (s 81) • representations about employment or authority (s 87 (2)) • exceptions to the rule excluding evidence of judgments and convictions (s 92 (3)) • character of and expert opinion about accused people (s 110 and s 111). 1 D is the defendant 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 happened. 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) (Restriction to first-hand hearsay)). Note Subsection (2) was inserted as a response to the decision of the High Court 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. Note The admission might still be admissible under s 81 as an exception to the hearsay rule if it is first-hand hearsay—see s 82.

61 Exceptions to the hearsay rule dependent 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) (Competence—lack of capacity). (2) This section does not apply to a contemporaneous representation made by a person about the person’s health, feelings, sensations, intention, knowledge or state of mind. Note For the admissibility of contemporaneous representations, see s 66A. (3) For 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.

62 Restriction to first-hand hearsay (1) For this division (other than in subsection (2)), a previous representation is a previous representation that was made by a person who had personal knowledge of an asserted fact.

(2) A person has personal knowledge of an asserted fact if the person’s 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 someone else about the fact. (3) For section 66A (Exception—contemporaneous statements about a person’s health etc), 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 mentioned in the 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. Note 1 Section 67 imposes notice requirements relating to this subsection. Note 2 The dictionary, pt 2, s 4 is about the availability of people.

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. Note 1 Section 67 imposes notice requirements relating to this subsection. Note 2 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) the 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,

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 happened and in circumstances that make it unlikely that the representation is a fabrication; or (c) was made in circumstances that make it highly probable that the representation is reliable; or (d) was— (i) against the interests of the person who made it at the time it was made; and (ii) made in circumstances that make it likely that the representation is reliable. (3) The hearsay rule does not apply to evidence of a previous representation made in the course of giving evidence in an Australian or overseas proceeding if, in the proceeding, the defendant in the proceeding to which this section is being applied— (a) cross-examined the person who made the representation about it; or (b) had a reasonable opportunity to cross-examine the person who made the representation about it. (4) If there is more than 1 defendant in the criminal proceeding, evidence of a previous representation that— (a) is given in an Australian or overseas proceeding; and (b) is admitted into evidence in the criminal proceeding because of subsection (3); cannot be used against a defendant who did not cross-examine, and did not have a reasonable opportunity to cross-examine, the person about the representation.

(5) For subsection (3) and subsection (4), a defendant is taken to have had a reasonable opportunity to cross-examine a person if the defendant was not present at a time when the cross-examination of a person might have been conducted but— (a) could reasonably have been present at the 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 presented 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 entity responsible for producing the transcript or recording. (7) Without limiting subsection (2) (d), a representation is taken for subsection (2) (d) 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— (a) evidence of a previous representation presented by a defendant if the evidence is given by a person who saw, heard or otherwise perceived the representation being made; or

(b) a document tendered as evidence by a defendant so far as it contains a previous representation, or another representation to which it is reasonably necessary to refer in order to understand the representation. (9) If evidence of a previous representation about a matter has been presented by a defendant and has been admitted, the hearsay rule does not apply to evidence of another representation about the matter (a) is presented 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. (2) If the person 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) the person; or (b) a person who saw, heard or otherwise perceived the representation being made; if, when the representation was made, the happening of the asserted fact was fresh in the memory of the person who made the representation.

(3) In deciding whether the happening 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 time between the happening of the asserted fact and the making of the representation. Note Subsection (3) was inserted as a response to the decision of the High Court in Graham v The Queen (1998) 195 CLR 606. (4) 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 presented by the prosecutor of the representation unless the representation is about the identity of a person, place or thing. (5) 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,

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) A relevant exception does not apply to evidence presented by a party unless the party has given reasonable notice in writing to each other party of the party’s intention to present the evidence.

(2) A notice given under subsection (1) must be given in accordance with any regulation or rules of court made for this section. (3) The notice must state— (a) each relevant exception 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) (Exception—civil proceedings if maker available) is to be relied on—the grounds, stated in the section, 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 1 or more relevant exceptions apply despite the party’s failure to give notice. (5) The direction— (a) is subject to the conditions (if any) the court thinks fit; and (b) in particular, may provide that, in relation to stated evidence, 1 or more relevant exceptions apply with the modifications the court states. relevant exception means— (a) section 63 (2) (Exception—civil proceedings if maker not available); or (b) section 64 (2) (Exception—civil proceedings if maker available); or (c) section 65 (2), (3) and (8) (Exception—criminal proceedings if maker not available).

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 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 the day notice has been given, object to the tender of the evidence, or of a stated part of the evidence. (2) The objection must 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, decide the objection at or before the hearing. (4) If the objection is unreasonable, the court may order that, in any event, the party objecting must 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. Note Subsection (4) differs from the Commonwealth Act, s 68 (4) because of the different way costs are worked out by ACT courts.

69 Exception—business records (1) This section applies to a document that— (a) either— (i) is or forms part of a record belonging to or kept by an entity in the course of, or for the purposes of, a business; or (ii) at any time was or formed part of the 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 happening 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 happening 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 the system, of the happening of the event.

(5) For 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). Note 1 Sections 48, 49, 50, 146, 147 and 150 (1) are relevant to the mode of proof, and authentication, of business records. Note 2 The Commonwealth Act, s 182 gives the Commonwealth Act, s 69 a

70 Exception—contents of tags, labels and writing The hearsay rule does not apply to a tag or label attached to, or writing placed on, an object (including a document) if the tag or label or writing may reasonably be supposed to have been attached or placed— (a) in the course of a business; and (b) for the purpose of describing or stating the identity, nature, ownership, destination, origin or weight of the object, or of the contents (if any) of the object. Note The Commonwealth Act, s 70 includes an additional subsection providing that the exception does not apply to customs and excise prosecutions. The Commonwealth Act, s 5 extends the application of the 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 or time when the communication was sent; or

(c) the communication’s destination or the identity of the person to whom the communication was addressed. Note 1 Div 4.3.3 contains presumptions about electronic communications. Note 2 The Commonwealth Act, s 182 gives the Commonwealth Act, s 71 a Note 3 Electronic communication—see 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.

73 Exception—reputation as to relationships and age (1) The hearsay rule does not apply to evidence of reputation about— (a) whether a person was, at a particular time or at any time, a married person; or (b) whether 2 people cohabiting at a particular time were married to each other at the time; or (c) a person’s age; or (d) family history or a family relationship. (2) In a criminal proceeding, subsection (1) does not apply to evidence presented by a defendant unless— (a) it tends to contradict evidence mentioned in subsection (1) that has been admitted; or (b) the defendant has given reasonable notice in writing to each other party of the defendant’s intention to present the evidence. (3) In a criminal proceeding, subsection (1) does not apply to evidence presented by the prosecutor unless it tends to contradict evidence mentioned 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 about the existence, nature or extent of a public or general right. (2) In a criminal proceeding, subsection (1) does not apply to evidence presented by the prosecutor unless it tends to contradict evidence mentioned 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 presents it also presents evidence of its source.

76 The opinion rule (1) Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed. (2) Subsection (1) does not apply to evidence of an opinion contained in a certificate or other document given or made under a regulation made under an Act other than this Act to the extent to which the regulation provides that the certificate or other document has evidentiary effect. Note Specific exceptions to the opinion rule are as follows: • summaries of voluminous or complex documents (s 50 (3)) • evidence relevant otherwise than as opinion evidence (s 77) • lay opinion (s 78) • Aboriginal and Torres Strait Islander traditional laws and customs (s 78A) • expert opinion (s 79) • admissions (s 81) • exceptions to the rule excluding evidence of judgments and convictions (s 92 (3)) • character of and expert opinion about accused people (s 110 and s 111). 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.

Opinion Part 3.3

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 the person’s opinion that is completely or substantially based on that knowledge.

(2) To remove any 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 mentioned in paragraph (a), a reference to an opinion relating to either or both of the (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.

Note Admission—see the dictionary.

81 Hearsay and opinion rules—exception for admissions and related representations (1) The hearsay rule and opinion rule do not apply to evidence of an (2) The hearsay rule and 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. Note Specific exclusionary rules relating to admissions are as follows: • evidence of admissions that is not first-hand (s 82) • use of admissions against third parties (s 83) • admissions influenced by violence etc (s 84) • unreliable admissions of accused people (s 85) • records of oral questioning of accused people (s 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 the 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. Note Section 60 (Exception—evidence relevant for a non-hearsay purpose) 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 opinion rule to evidence of an admission in relation to the case of a third party. (2) The evidence may be used in relation to the case of a third party if the third party consents. (3) Consent cannot be given in relation to part only of the evidence. third party means a party to the proceeding, other than the party who— (a) made the admission; or (b) presented 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 someone else; or (b) a threat of conduct mentioned in paragraph (a).

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

85 Criminal proceedings—reliability of admissions by defendants (1) This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant— (a) to, or in the presence of, an investigating official who at the time was exercising functions in connection with the investigation of the commission, or possible commission, of an offence; or (b) as a result of an act of someone else who was, and who the defendant knew or reasonably believed to be, capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued. Note Subsection (1) was inserted as a response to the decision of the High Court of 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 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 subsection (2), it must 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 way 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 (1) This section applies only in a criminal proceeding and only if an oral admission was made by a defendant to an investigating official in response to a question put or representation made by the official. (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 defendant has acknowledged that the document is a true record of the question, representation or response. (3) The acknowledgment must be made by signing, initialling or otherwise marking the document. document does not include the following: (a) a sound recording, or a transcript of a sound recording; (b) a recording of visual images and sounds, or a transcript of the recorded sounds.

87 Admissions made with authority (1) For the purpose of deciding whether a previous representation made by a person is also taken to be an admission by a party, the court must 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 in relation 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 1 or more people including the party. (2) For 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 someone else in relation to a matter; or (b) that the person was an employee of someone else or had authority otherwise to act for someone else; or (c) the scope of the person’s employment or authority.

88 Proof of admissions For the purpose of deciding whether evidence of an admission is admissible, the court must find that a particular person made the admission if it is reasonably open to find that the person made the

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 someone else failed— (a) to answer 1 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 the time was exercising 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 an inference mentioned in subsection (1).

(3) Subsection (1) does not prevent use of the evidence to prove that the party or other person failed to answer the question or to respond to the representation if the failure is a fact in issue in the proceeding. inference includes the following: (a) an inference of consciousness of guilt; (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 presented by the prosecution; and (b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence. Note Pt 3.11 contains other exclusionary discretions that apply to admissions.

Evidence of judgments and convictions Part 3.5

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 the proceeding. (2) Evidence that, under this part, is not admissible to prove the existence of a fact may not be used to prove the fact even if it is relevant for another purpose. Note 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 proper 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, other than a conviction— (a) in relation to which a review or appeal (however described) has been started but not finally decided; or (b) that has been quashed or set aside; or (c) in relation to which a pardon has been given. (3) The hearsay rule and the opinion rule do not apply to evidence mentioned in this section.

Part 3.5 Evidence of judgments and convictions

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.

94 Application—pt 3.6 (1) This part does not apply to evidence that relates only to the witness’s credibility. (2) This part does not apply so far as a proceeding relates to bail or sentencing. (3) This part does not apply to evidence of— (a) the character, reputation or conduct of a person; or (b) a tendency that a person has or had; if that character, reputation, conduct or tendency is a fact in issue. (4) To remove any doubt, any principle or rule of the common law or equity that prevents or restricts the admissibility of evidence about propensity or similar fact evidence in a proceeding is not relevant when applying this part to tendency evidence or coincidence evidence about a defendant. (5) In determining the probative value of tendency evidence or coincidence evidence for section 97 (1) (b), 97A (4), 98 (1) (b) or 101 (2), it is not open to the court to have regard to the possibility that the evidence may be the result of collusion, concoction or contamination.

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 the 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 the 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 present the evidence gave reasonable notice in writing to each other party of the party’s intention to present the evidence; and (b) the court thinks that the evidence will, either by itself or having regard to other evidence presented or to be presented by the party seeking to present the evidence, have significant probative value. (2) Subsection (1) (a) does not apply if— (a) the evidence is presented in accordance with a direction made by the court under section 100 (Court may dispense with notice requirements); or (b) the evidence is presented to explain or contradict tendency evidence presented by another party. Note The tendency rule is subject to specific exceptions about the character of and expert opinion about accused people (s 110 and s 111). Other provisions of this Act, or of other laws, may operate as further exceptions.

97A Admissibility of tendency evidence in proceedings involving child sexual offences (1) This section applies in a criminal proceeding in which the commission by the defendant of an act that constitutes, or may constitute, a child sexual offence is a fact in issue. (2) It is presumed that the following tendency evidence about the defendant will have significant probative value for section 97 (1) (b) and section 101 (2): (a) tendency evidence about the sexual interest the defendant has or had in children (even if the defendant has not acted on the interest); (b) tendency evidence about the defendant acting on a sexual interest the defendant has or had in children. (3) Subsection (2) applies whether or not the sexual interest or act to which the tendency evidence relates was directed at a complainant in the proceeding, or any other child or children generally. (4) Despite subsection (2), the court may determine that the tendency evidence does not have significant probative value if it is satisfied that there are sufficient grounds to do so. (5) The following matters (whether considered individually or in combination) are not to be taken into account when determining whether there are sufficient grounds for subsection (4) unless the court considers there are exceptional circumstances in relation to those matters (whether considered individually or in combination) to warrant taking them into account: (a) the sexual interest or act to which the tendency evidence relates (the tendency sexual interest or act) is different from the sexual interest or act alleged in the proceeding (the alleged sexual interest or act);

(b) the circumstances in which the tendency sexual interest or act occurred are different from circumstances in which the alleged sexual interest or act occurred; (c) the personal characteristics of the subject of the tendency sexual interest or act (for example, the subject’s age, sex or gender) are different to those of the subject of the alleged sexual interest or act; (d) the relationship between the defendant and the subject of the tendency sexual interest or act is different from the relationship between the defendant and the subject of the alleged sexual interest or act; (e) the period of time between the occurrence of the tendency sexual interest or act and the occurrence of the alleged sexual interest or act; (f) the tendency sexual interest or act and alleged sexual interest or act do not share distinctive or unusual features; (g) the level of generality of the tendency to which the tendency evidence relates. child sexual offence— (a) means each of the following offences (however described and regardless of when it occurred): (i) an offence against, or arising under, a territory law involving sexual intercourse with, or any other sexual offence against, a person who was a child at the time of the offence; (ii) an offence against, or arising under, a territory law involving an unlawful sexual act with, or directed towards, a person who was a child at the time of the offence;

(iii) an offence against, or arising under, a law of the Commonwealth, a State or a foreign country that, if committed in the Territory, would have been an offence of a kind mentioned in subparagraph (i) or (ii); but Note State includes the Northern Territory (see Legislation Act, dict, pt 1). (b) does not include conduct of a person that has ceased to be an offence since the time when the person engaged in the conduct.

98 The coincidence rule (1) Evidence that 2 or more events happened 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 happened, or any similarities in both the events and the circumstances in which they happened, it is improbable that the events happened coincidentally unless— (a) the party seeking to present the evidence gave reasonable notice in writing to each other party of the party’s intention to present the evidence; and (b) the court thinks that the evidence will, either by itself or having regard to other evidence presented or to be presented by the party seeking to present the evidence, have significant probative value. Note One of the events referred to in s (1) may be an event the happening of which is a fact in issue in the proceeding. (1A) To remove any doubt, subsection (1) includes the use of evidence from 2 or more witnesses claiming they are victims of offences committed by a person who is a defendant in a criminal proceeding to prove, on the basis of similarities in the claimed acts or the circumstances in which they occurred, that the defendant did an act in issue in the proceeding.

(2) Subsection (1) (a) does not apply if— (a) the evidence is presented in accordance with a direction made by the court under section 100 (Court may dispense with notice requirements); or (b) the evidence is presented to explain or contradict coincidence evidence presented by another party. Note Other provisions of this Act, or of other laws, may operate as exceptions to the coincidence rule.

99 Requirements for notices A notice given under section 97 (The tendency rule) or section 98 (The coincidence rule) must be given in accordance with any regulation or rules of court made for 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 (The tendency rule). (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 (The coincidence rule). (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 1 or more of the other parties. (5) The direction— (a) is subject to the conditions (if any) the court thinks fit; and (b) may be given at or before the hearing.

(6) Without limiting the court’s power to impose conditions under this section, the conditions may include 1 or more of the following: (a) a condition that the party give notice of its intention to present the evidence to a stated party, or to each party other than a stated party; (b) a condition that the party give the notice only in relation to stated tendency evidence, or all tendency evidence that the party intends to present other than stated tendency evidence; (c) a condition that the party give the notice only in relation to stated coincidence evidence, or all coincidence evidence that the party intends to present other than stated coincidence evidence.

101 Further restrictions on tendency evidence and coincidence evidence presented by prosecution (1) This section applies only in a criminal proceeding and applies in addition to section 97 (The tendency rule) and section 98 (The coincidence rule). (2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is presented by the prosecution cannot be used against the defendant unless the probative value of the evidence outweighs the danger of unfair prejudice to the defendant. (3) This section does not apply to tendency evidence that the prosecution presents to explain or contradict tendency evidence presented by the defendant. (4) This section does not apply to coincidence evidence that the prosecution presents to explain or contradict coincidence evidence presented by the defendant.

101A Credibility evidence Credibility evidence, in relation to a witness or someone else, 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. Note 1 Section 60 and s 77 will not affect the application of par (b), because they cannot apply to evidence that is yet to be admitted. Note 2 Section 101A was inserted as a response to the decision of the High Court in Adam v The Queen (2001) 207 CLR 96.

102 The credibility rule Credibility evidence about a witness is not admissible. Note 1 Specific exceptions to the credibility rule are as follows: • evidence given in cross-examination (s 103 and s 104) • evidence in rebuttal of denials (s 106) • evidence to re-establish credibility (s 108) • evidence of people with specialised knowledge (s 108C) • character of accused people (s 110).

Credibility of witnesses Division 3.7.2 Note 2 Section 108A and s 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 given by a witness in cross-examination if the evidence could substantially affect the assessment of the witness’s credibility. (2) Without limiting the matters to which the court may have regard for subsection (1), it must 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 happened.

104 Further protections—cross-examination as to credibility (1) This section applies only to credibility evidence in a criminal proceeding and applies in addition to section 103. (2) A defendant must not be cross-examined about a matter that is relevant to the assessment of the defendant’s credibility, unless the court gives leave. (3) Despite subsection (2), leave is not required for cross-examination by the prosecutor about whether the defendant— (a) is biased or has a motive to be untruthful; or (b) is, or was, unable to be aware of or recall matters to which the defendant’s evidence relates; or (c) has made a prior inconsistent statement.

(4) The prosecutor must not be given leave under subsection (2) unless evidence presented by the defendant 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— (a) the events in relation to which the defendant is being prosecuted; or (b) the investigation of the offence for which the defendant is being prosecuted. (6) Leave must not be given for cross-examination by another defendant unless— (a) the evidence that the defendant to be cross-examined has given includes evidence adverse to the defendant seeking leave to cross-examine; and (b) that evidence has been admitted.

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 presented 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 present the evidence.

Credibility of witnesses Division 3.7.2 (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 the witness’s 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.

108 Exception—re-establishing credibility (1) The credibility rule does not apply to evidence given by a witness in re-examination. (2) The credibility rule does not apply to evidence of a prior consistent statement of a witness if— (a) evidence of a prior inconsistent statement of the witness has been admitted; or (b) it is or will be suggested (either expressly or by implication) that evidence given by the witness has been fabricated or reconstructed (whether deliberately or otherwise) or is the result of a suggestion; and the court gives leave to present the evidence of the prior consistent statement.

Division 3.7.3 Credibility of people who are not witnesses Division 3.7.3 Credibility of people 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 subsection (1), it must 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 happening 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 applies in addition to section 108A. (2) If the person mentioned in section 108A is a defendant, the credibility evidence is not admissible unless the court gives leave.

People with specialised knowledge Division 3.7.4 (3) Despite subsection (2), leave is not required if the evidence is about whether the defendant— (a) is biased or has a motive to be untruthful; or (b) is, or was, unable to be aware of or recall matters to which the defendant’s previous representation relates; or (c) has made a prior inconsistent statement. (4) The prosecution must not be given leave under subsection (2) unless evidence presented by the defendant 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— (a) the events in relation to which the defendant is being prosecuted; or (b) the investigation of the offence for which the defendant is being prosecuted. (6) Another defendant must not be given leave under subsection (2) unless the previous representation of the defendant that has been admitted includes evidence adverse to the defendant seeking leave.

108C Exception—evidence of people with specialised knowledge (1) The credibility rule does not apply to evidence given by a person about 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 completely 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 present the evidence. (2) To remove any 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 mentioned in paragraph (a), a reference to an opinion relating to either or both of the (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.

Character Part 3.8

109 Application—pt 3.8 This part applies only in a criminal proceeding.

110 Evidence about character of accused people (1) The hearsay rule, opinion rule, tendency rule and credibility rule do not apply to evidence presented by a defendant to prove (directly or by implication) that the defendant is, either generally or in a particular respect, a person of good character. (2) If evidence presented to prove (directly or by implication) that a defendant is generally a person of good character has been admitted, the hearsay rule, opinion rule, tendency rule and credibility rule do not apply to evidence presented to prove (directly or by implication) that the defendant is not generally a person of good character. (3) If evidence presented to prove (directly or by implication) that a defendant is a person of good character in a particular respect has been admitted, the hearsay rule, opinion rule, tendency rule and credibility rule do not apply to evidence presented to prove (directly or by implication) that the defendant is not a person of good character in that respect.

111 Evidence about character of co-accused (1) The hearsay rule and tendency rule do not apply to evidence of a defendant’s character if— (a) the evidence is evidence of an opinion about the defendant presented by another defendant; and (b) the person whose opinion it is has specialised knowledge based on the person’s training, study or experience; and (c) the opinion is completely or substantially based on that knowledge.

(2) If evidence mentioned in subsection (1) has been admitted, the hearsay rule, opinion rule and tendency rule do not apply to evidence presented to prove that the evidence should not be accepted.

112 Leave required to cross-examine about character of accused or co-accused A defendant must not be cross-examined about matters arising out of evidence mentioned in this part unless the court gives leave.

Note Identification evidence—see the dictionary.

113 Application—pt 3.9 This part applies only in a criminal proceeding.

114 Exclusion of visual identification evidence picture identification evidence—see section 115. visual identification evidence means identification evidence relating to an identification based completely or partly on what a person saw but does not include picture identification evidence. (2) Visual identification evidence presented by the prosecutor is not admissible unless— (a) an identification parade that included the defendant was held before the identification was made; or (b) it would not have been reasonable to have held the parade; or (c) the defendant refused to take part in the parade; and the identification was made without the person who made it having been intentionally influenced to identify the defendant. (3) Without limiting the matters that may be taken into account by the court in deciding whether it was reasonable to hold an identification parade, it must take into account— (a) the kind of offence, and the gravity of the offence; and (b) the importance of the evidence; and

(c) the practicality of holding an identification parade having regard, among other things— (i) if the defendant 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 (d) the appropriateness of holding an identification parade having regard, among other things, to the relationship (if any) between the defendant and the person who made the identification. (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 defendant for the parade to have been held. (5) If— (a) the defendant refused to take part in an identification parade unless an Australian legal practitioner or legal counsel acting for the defendant, or someone else chosen by the defendant, was present while it was being held; and (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 a person mentioned in paragraph (a) to be present; it is presumed that it would not have been reasonable to have held an identification parade at that time. (6) In deciding whether it was reasonable to have held an identification parade, the court must not take into account the availability of pictures or photographs that could be used in making identifications.

115 Exclusion of evidence of identification by pictures picture identification evidence means identification evidence relating to an identification made completely or partly by the person who made the identification examining pictures kept for the use of police officers. (2) Picture identification evidence presented by the prosecutor is not admissible if the pictures examined suggest that they are pictures of people in police custody. (3) Subject to subsection (4), picture identification evidence presented by the prosecutor is not admissible if— (a) when the pictures were examined, the defendant was in the custody of a police officer of the police force investigating the commission of the offence with which the defendant has been charged; and (b) the picture of the defendant that was examined was made before the defendant was taken into police custody. (4) Subsection (3) does not apply if— (a) the defendant’s appearance had changed significantly between the time the offence was committed and the time the defendant was taken into the custody; or (b) it was not reasonably practicable to make a picture of the defendant after the defendant was taken into the custody. (5) Picture identification evidence presented by the prosecutor is not admissible if, when the pictures were examined, the defendant was in the custody of a police officer of the police force investigating the commission of the offence with which the defendant has been charged, unless— (a) the defendant refused to take part in an identification parade; or

(b) the defendant’s appearance had changed significantly between the time the offence was committed and the time the defendant was taken into the custody; or (c) it would not have been reasonable to have held an identification parade that included the defendant. (6) Sections 114 (3) to (6) (Exclusion of visual identification evidence) apply in deciding, for subsection (5) (c), whether it would have been reasonable to have held an identification parade. (7) If picture identification evidence presented by the prosecutor is admitted into evidence, the judge must, on the defendant’s request— (a) if the picture of the defendant was made after the defendant was taken into the custody—tell the jury that the picture was made after the defendant was taken into the custody; or (b) otherwise—warn the jury that they must not assume that the defendant has a criminal record or has previously been charged with an offence. Note Section 116 (Directions to jury) and s 165 (Unreliable evidence) also deal with warnings about identification evidence. (8) This section does not render inadmissible picture identification evidence presented by the prosecutor that contradicts or qualifies picture identification evidence presented by the defendant. (9) This section applies in addition to section 114 (Exclusion of visual identification evidence). (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 (1) If identification evidence has been admitted, the judge must tell the jury— (a) that there is a special need for caution before accepting identification evidence; and (b) of the reasons for the need for caution, both generally and in the circumstances of the case. (2) It is not necessary that a particular form of words be used in telling the jury.

117 Definitions—div 3.10.1 (1) In this division: client includes the following: (a) an entity that engages a lawyer to provide legal services or that 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 people of unsound mind, a manager, committee or person (however described) is acting in relation to the person, estate or property of a client—the manager, committee or person; (e) if a client has died—the client’s personal representative; (f) a successor to the rights and obligations of a client, that are rights and obligations in relation to which a confidential communication was made. confidential communication means a communication made in 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 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. lawyer means— (a) an Australian lawyer; and (b) an Australian-registered foreign lawyer; and (c) an overseas-registered foreign lawyer or an individual 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 mentioned 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 people of unsound mind, a manager, committee or person (however described) is acting in relation to the person, estate or property of a party—the manager, committee or person; (c) if a party has died—the party’s personal representative; (d) a successor to the rights and obligations of a party, that are rights and obligations in relation to 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 must not be presented if, on objection by a client, the court finds that presenting 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 someone else; for the dominant purpose of the lawyer, or 1 or more of the lawyers, providing legal advice to the client.

119 Litigation Evidence must not be presented if, on objection by a client, the court finds that presenting the evidence would result in disclosure of— (a) a confidential communication between the client and someone else, or between a lawyer acting for the client and someone else, 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 Evidence must not be presented if, on objection by a party who is not represented in the proceeding by a lawyer, the court finds that presenting the evidence would result in disclosure of— (a) a confidential communication between the party and someone else; or (b) the contents of a confidential document (whether delivered or not) that was prepared by or at the direction or request of the party; for the dominant purpose of preparing for or conducting the

121 Loss of client legal privilege—generally (1) This division does not prevent the presenting of evidence relevant to a question about the intentions, or competence in law, of a client or party who has died. (2) This division does not prevent the presenting of evidence if, were the evidence not presented, 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 presenting 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 presenting of evidence given with the consent of the client or party.

(2) Subject to subsection (5), this division does not prevent the presenting of evidence if the client or party has acted in a way that is inconsistent with the client or party objecting to the presenting of the evidence because it would result in a disclosure mentioned in section 118 (Legal advice), section 119 (Litigation) or section 120 (Unrepresented parties). (3) Without limiting subsection (2), the client or party is taken to have acted in the way mentioned in subsection (2) if— (a) the client or party knowingly and voluntarily disclosed the substance of the evidence to someone else; 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 way inconsistent with the client or party objecting to the presenting of the evidence only 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 someone else if the disclosure is about 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 Australian or overseas (6) This division does not prevent the presenting of evidence of a document that a witness has used— (a) to try to revive the witness’s memory about a fact or opinion; or (b) in a way mentioned in section 32 (Attempts to revive memory in court) or section 33 (Evidence given by police officers).

123 Loss of client legal privilege—defendants In a criminal proceeding, this division does not prevent a defendant from presenting evidence unless it is evidence of— (a) a confidential communication made between an associated defendant and a lawyer acting for the associated defendant in connection with the prosecution of the associated defendant; or (b) the contents of a confidential document prepared by an associated defendant or by a lawyer acting for an associated defendant in connection with the prosecution of the associated defendant. Note Associated defendant—see 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 start of the proceeding, jointly retained a lawyer in relation to the same matter. (2) This division does not prevent 1 of those parties from presenting evidence of— (a) a communication made by any 1 of them to the lawyer; or (b) the contents of a confidential document prepared by or at the direction or request of any 1 of them; in connection with that matter.

125 Loss of client legal privilege—misconduct (1) This division does not prevent the presenting 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 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; power means a power given by or under an Australian law.

126 Loss of client legal privilege—related communications and documents (1) If, because of the application of a relevant section, this division does not prevent the presenting of evidence of a communication or the contents of a document, the relevant section does not prevent the presenting 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 a proceeding 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. (2) In this section: relevant section means: (a) section 121 (Loss of client legal privilege—generally); or (b) section 122 (Loss of client legal privilege—consent and related matters); or (c) section 123 (Loss of client legal privilege—defendants); or (d) section 124 (Loss of client legal privilege—joint clients); or

(e) section 125 (Loss of client legal privilege—misconduct).

Division 3.10.1A Professional confidential relationship privilege

126A Definitions—div 3.10.1A (1) In this division: confidant—see the definition of protected confidence. harm includes actual physical bodily harm, financial loss, stress or shock, damage to reputation or emotional or psychological harm (for example, shame, humiliation and fear). protected confidence means a communication made by a person in confidence to someone else (the confidant)— (a) in the course of a relationship in which the confidant was acting in a professional capacity; and (b) when the confidant was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law or can be inferred from the nature of the relationship between the person and the confidant. protected confider means a person who made a protected confidence. protected identity information means information about, or enabling a person to ascertain, the identity of the person who made a protected confidence. (2) For this division, a communication may be made in confidence even if it is made in the presence of a third party if the third party’s presence is necessary to facilitate communication.

Professional confidential relationship privilege Division 3.10.1A

126B Exclusion of evidence of protected confidences (1) The court may direct that evidence not be presented in a proceeding if the court finds that presenting it would disclose— (a) a protected confidence; or (b) the contents of a document recording a protected confidence; or (c) protected identity information. (2) The court may give a direction under this section— (a) on its own initiative; or (b) on the application of the protected confider or confidant (whether or not either is a party). (3) The court must give a direction under this section if it is satisfied (a) it is likely that harm would or might be caused (whether directly or indirectly) to a protected confider if the evidence is presented; and (b) the nature and extent of the harm outweighs the desirability of the evidence being presented. (4) Without limiting the matters that the court may take into account for this section, it must take into account the following matters: (a) the probative value of the evidence in the proceeding; (b) the importance of the evidence in the proceeding; (c) the nature and gravity of the offence, cause of action or defence and the nature of the subject matter of the proceeding; (d) the availability of any other evidence relating to the matters to which the protected confidence or protected identity information relates;

(e) the likely effect of presenting evidence of the protected confidence or protected identity information, including the likelihood of harm, and the nature and extent of harm that would be caused to the protected confider; (f) the means (including any ancillary orders that may be made under section 126E) available to the court to limit the harm or extent of the harm that is likely to be caused if evidence of the protected confidence or the protected identity information is disclosed; (g) if the proceeding is a criminal proceeding—whether the party seeking to present evidence of the protected confidence or protected identity information is a defendant or the prosecutor; (h) whether the substance of the protected confidence or the protected identity information has already been disclosed by the protected confider or someone else; (i) the public interest in preserving the confidentiality of protected confidences; (j) the public interest in preserving the confidentiality of protected identity information. (5) The court must state its reasons for giving or refusing to give a direction under this section.

126C Loss of professional confidential relationship privilege— consent This division does not prevent the presenting of evidence with the protected confider’s consent.

Professional confidential relationship privilege Division 3.10.1A

126D Loss of professional confidential relationship privilege— misconduct (1) This division does not prevent the presenting of evidence of a communication made or the contents of a document prepared in the furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty. (2) For this section, if the commission of the fraud, offence or act is a fact in issue and there are reasonable grounds for finding that— (a) the fraud, offence or act was committed; and (b) a communication was made or document prepared in furtherance of the commission of the fraud, offence or act;

126E Ancillary orders Without limiting any action the court may take to limit the possible harm, or extent of the harm, likely to be caused by the disclosure of evidence of a protected confidence or protected identity information, the court may— (a) order that all or part of the evidence be heard in closed court; and (b) make an order relating to the suppression of publication of all or part of the evidence given before the court as, in its opinion, is necessary to protect the safety and welfare of the protected confider.

126F Application—div 3.10.1A (1) This division extends to a protected confidence made before the

(2) This division does not apply in relation to a proceeding the hearing of which began before the commencement of this division. (3) This division does not apply in relation to a protected confidence within the meaning of the Evidence (Miscellaneous Provisions) Act 1991, division 4.4.3 (Sexual and family violence offence proceedings—protection of counselling communications). Note The Commonwealth Act does not include this subsection. (4) The court may give a direction under this division in relation to a protected confidence or protected identity information whether or not the protected confidence or protected identity information is privileged under another section of this part or would be privileged except for a limitation or restriction imposed by that section. (5) For subsection (2), the hearing of a proceeding has begun if the court has begun to take oral or written evidence in the proceeding (other than in relation to bail or any other interlocutory matter). Note The Commonwealth Act and NSW Act do not include this subsection.

126J Definitions—div 3.10.1C 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 who is engaged and active in the publication of news and who may be given information by an informant in the expectation that the information may be published 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.

Journalist privilege Division 3.10.1C

126K Journalist privilege relating to informant’s identity (1) If a journalist has promised an informant not to disclose the informant’s identity, neither the journalist nor the journalist’s employer is compellable to answer any question or produce any document that would disclose the informant’s identity 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 decided in the proceeding, the public interest in the disclosure of the informant’s identity outweighs— (a) any likely adverse effect of the disclosure on the informant or anyone else; and (b) the public interest in the communication of facts and opinion to the public by the news media and, accordingly also, in the news media’s ability to access sources of facts. (3) An order under subsection (2) may be made subject to the conditions (if any) the court thinks fit. Note The Commonwealth Act, s 126H is equivalent to this section.

126L Application—div 3.10.1C (1) This division extends to information given by an informant before the (2) This division does not apply in relation to a proceeding the hearing of which began before the commencement of this division. (3) This division (as applied by section 131A) does not apply to a disclosure requirement mentioned in that section made before the

(4) For subsection (2), the hearing of a proceeding has begun if the court has begun to take oral or written evidence in the proceeding (other than in relation to bail or any other interlocutory matter). Note The NSW Act does not include this subsection and the Commonwealth Act does not include this section.

127 Religious confessions (1) A person who is or was a member of the clergy of a 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. (2) Subsection (1) does not apply if— (a) the communication involved in the religious confession was made for a criminal purpose; or (b) the religious confession includes information relating to— (i) a child or young person that is experiencing, or that has experienced, sexual abuse or non-accidental physical injury; or (ii) a substantial risk that a child or young person may experience sexual abuse or non-accidental physical injury. (3) This section applies even if an Act provides— (a) that the rules of evidence do not apply or that an entity is not bound by the rules of evidence; or (b) that a person is not excused from answering a question or producing a document or other thing on the ground of privilege or any other ground.

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 member’s church or religious denomination.

128 Privilege in relation to self-incrimination in other (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 (b) is liable to a civil penalty. (2) The court must decide whether or not there are reasonable grounds for the objection. (3) Subject to subsection (4), if the court decides that there are reasonable grounds for the objection, the court must not require the witness to give the evidence and must tell 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 the 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 give the witness a certificate under this section in relation to the evidence. (6) The court must also give a witness 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 an ACT court or before any entity authorised by a territory law, or by consent of parties, to hear, receive and examine evidence— (a) evidence given by a person in relation to which a certificate under this section has been given; and (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. Note This subsection differs from the Commonwealth Act, s 128 (7). The Commonwealth provision refers to an ‘Australian court’ instead of an ‘ACT court’. (8) However, subsection (7) does not apply to a criminal proceeding in relation to the falsity of the evidence.

(9) 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. (10) If a defendant 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 defendant for the same offence or a trial of the defendant for an offence arising out of the same facts that gave rise to that offence. (11) In a criminal proceeding, this section does not apply in relation to the giving of evidence by a defendant, if the evidence is the defendant— (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. (12) A reference in this section to doing an act includes a reference to failing to act. (13) If a person has been given a certificate under a prescribed State or Territory provision in relation to 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. (14) For subsection (13), a prescribed State or Territory provision is a provision of a State or Territory law declared by regulation to be a prescribed State or Territory provision for that subsection. (15) Subsection (13) applies to a proceeding in relation to which this Act applies because of section 4, other than a proceeding for an offence against a Commonwealth law or for the recovery of a civil penalty under a Commonwealth law. Note 1 The Commonwealth Act, s 128 (12) to (14) gives effect to certificates in relation to self-incriminating evidence under this Act in proceedings in federal courts and in prosecutions for Commonwealth offences. Note 2 Bodies corporate cannot claim this privilege—see s 187.

Note 3 The dictionary, pt 2, s 3 sets out what is a civil penalty. Note 4 The Commonwealth Act, s 128 (12) to (14) gives effect to certificates in relation to self-incriminating evidence under this Act in proceedings in federal courts and in prosecutions for Commonwealth offences. Note 5 Subsections (9) and (10) were inserted as a response to the decision of the High Court in Cornwell v The Queen [2007] HCA 12 (22 March 2007).

128A Privilege in relation to self-incrimination—exception for certain orders etc disclosure order means an order made by an ACT court in a civil proceeding requiring a person to disclose information as part of, or in connection with, a freezing, search or other order under the Court Procedures Rules 2006, division 2.9.4 but does not include an order made by a court under the Proceeds of Crime Act 2002 (Cwlth) or the Confiscation of Criminal Assets Act 2003. 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 (b) is liable to a civil penalty; the person must— (c) disclose the information in relation to which no objection is taken; and (d) prepare an affidavit containing the information in relation 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 decide 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 all or any part of the privilege affidavit containing information mentioned in paragraph (a) to be filed and served on the parties. (7) If all or any part of the privilege affidavit is disclosed (including by order under subsection (6)), the court must give the relevant person a certificate in relation to the information mentioned in subsection (6) (a).

(8) In any proceeding in an ACT court or before any entity authorised by a territory law, or by consent of parties, to hear, receive and examine evidence— (a) evidence of information disclosed by a relevant person in relation to which a certificate has been given under this section; and (b) 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. Note This subsection differs from the Commonwealth Act, s 128A (8). The Commonwealth provision refers to an ‘Australian court’ instead of an ‘ACT court’. (9) However, subsection (8) does not apply to a criminal proceeding in relation to the falsity of the evidence. (10) 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. (11) 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. (12) If a person has been given a certificate under a prescribed State or Territory provision in relation to information mentioned 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.

(13) For subsection (12), a prescribed State or Territory provision is a provision of a State or Territory law declared by regulation to be a prescribed State or Territory provision for that subsection. (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 Commonwealth law or for the recovery of a civil penalty under a Commonwealth law. Note The Commonwealth Act does not contain provisions corresponding to s 128A (12) to (14). Division 3.10.3 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 relation to a dispute that has been submitted to the person, or to the person and 1 or more other people, for arbitration; or the deliberations of the person in relation to the 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 the person. (2) Also, the evidence must not be given by tendering as evidence a document prepared by the 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 the decision, must not be given by any of the jury members.

(5) This section does not apply in a proceeding that is— (a) a prosecution for 1 or more of the following offences: (i) an offence against or arising under the Criminal Code 2002, sections 707 to 709 or section 713; (ii) an offence against or arising under the Juries Act 1967, section 42BA or section 43; (iii) an offence connected with an offence mentioned in subparagraph (i) or (ii), including an offence of conspiring to commit the offence; or (b) in relation to a contempt of a court; or (c) an appeal from, or judicial review of, a judgment, decree, order or sentence of a court; or (d) a review of an arbitral award; or (e) a civil proceeding in relation to 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. Note Subsection (5) (a) differs from the Commonwealth Act, s 129 (5) (a).

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 presented as evidence. (2) The court may give a direction under subsection (1) 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 the 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 subsection (1) to relate to matters of state, the information or document is taken for that subsection to relate to matters of state if presenting 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 in relation 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 the court may take into account for subsection (1), it must take into account the following matters: (a) the importance of the information or the document in the proceeding; (b) if the proceeding is a criminal proceeding—whether the party seeking to present evidence of the information or document is a defendant 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 presenting 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; (f) if the proceeding is a criminal proceeding and the party seeking to present evidence of the information or document is a defendant—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 must not be presented of— (a) a communication that is made between people in dispute, or between 1 or more people 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 people in dispute consent to the evidence being presented in the proceeding or, if any of the people has tendered the communication or document in evidence in another Australian or overseas proceeding, all the other people consent; or (b) the substance of the evidence has been disclosed with the express or implied consent of all the people in dispute; or

(c) the substance of the evidence has been partly disclosed with the express or implied consent of the people in dispute, and full disclosure of the evidence is reasonably necessary to enable a proper understanding of the other evidence that has already been presented; 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 present the evidence is a proceeding to enforce an agreement between the people in dispute to settle the dispute, or a proceeding in which the making of the agreement is in issue; or (g) evidence that has been presented in the proceeding, or an inference from evidence that has been presented in the proceeding, is likely to mislead the court unless evidence of the communication or document is presented to contradict or to qualify that evidence; or (h) the communication or document is relevant to deciding 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 people in dispute, or an employee or agent of 1 of them, 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 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 was prepared in furtherance of the commission of the fraud, offence or act; (4) For 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 was prepared in furtherance of the abuse of power; (5) In this section— (a) a reference to a dispute is a reference to a dispute of a kind in relation to 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 the 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 the person, if the employee or agent is authorised to consent; and

General Division 3.10.4 (e) a reference to commission of an act includes a reference to a failure to act. power means a power given by or under an Australian law.

131A Application of div 3.10.4 to preliminary proceedings of courts (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 mentioned in division 3.10.1, division 3.10.1A, division 3.10.1C or division 3.10.3; and (b) the person objects to giving the information or providing the document; the court must decide the objection by applying the provisions of this part (other than section 123 (Loss of client legal privilege— defendants) and section 128 (Privilege in relation to self-incrimination in other proceedings)) with any necessary modification as if the objection to giving information or producing the document were an objection to the giving or presenting of evidence. (2) For 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 4.6.1 (Requests to produce documents or call witnesses). Note 1 The Commonwealth Act, s 131A applies only to that Act, div 1C (Journalist privilege). Note 2 The Commonwealth Act includes a provision (s 131B) that extends the application of that Act, div 1C to proceedings in all Australian courts for Commonwealth offences.

132 Court to inform of rights to make applications and objections If it appears to the court that a witness or 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 jury’s absence) that the witness or party is aware of the effect of the provision.