Evidence Bill 2025

9—1 page i Western Australia Evidence Bill 2025 Contents Part 1 — Preliminary Division 1 — Introduction

1. Short title 2
2. Commencement 2 Division 2 — Interpretation
3. Terms used 3
4. References to business 14
5. Examination in chief, cross-examination and re-examination 15
6. References to documents 16
7. Representations made in documents 17
8. References to availability of documents and things 17
9. References to availability to give evidence 18
10. References to laws 19
11. References to criminal proceedings 20
12. References to civil penalties 20
13. References to offspring and parents 20 Division 3 — Application of Act
14. Application of Act 21
15. Extended application of certain provisions 21
16. Electronic processes facilitation 22
17. Act binds Crown 22
18. Operation of other Acts 22
19. Application of common law and equity 22
20. Parliamentary privilege preserved 23
21. General powers of court 23

Evidence Bill 2025 Contents page ii Part 2 — Adducing evidence Division 1 — Witnesses Subdivision 1 — Competence and compellability of witnesses 22. Competence and compellability 24 23. Competence: lack of capacity 24 24. Compellability: reduced capacity 25 25. Compellability: foreign sovereign and others 26 26. Competence and compellability: judges and jurors 27 27. Competence and compellability: accused and co-accused in criminal proceeding 27 28. Compellability: spouses and others in criminal proceeding 28 29. Compellability: witnesses in public revenue cases 29 30. Comment on decision not to give evidence in criminal proceeding 30 Subdivision 2 — Oaths and affirmations 31. Sworn evidence of witnesses to be on oath or affirmation 31 32. Interpreters to act on oath or affirmation 32 33. Choice of oath or affirmation 32 34. Application of Oaths, Affidavits and Statutory Declarations Act 2005 33 Subdivision 3 — General rules about giving evidence 35. Court’s control over questioning of witnesses 33 36. Parties may question witnesses 34 37. Order of examination in chief, cross-examination and re-examination 34 38. Manner and form of questioning witnesses and their responses 34 39. Interpreters 35 40. Witnesses who cannot hear adequately or speak adequately 35 41. Attempts to revive memory in court 35 42. Evidence given by police officers 36 43. Attempts to revive memory out of court 37 44. Effect of calling for production of documents 37 45. Person may be examined without subpoena or other process 38

Evidence Bill 2025 Contents page iii Subdivision 4 — Examination in chief and re-examination 46. Leading questions not to be asked 39 47. Unfavourable witnesses 40 48. Limits on re-examination 41 Subdivision 5 — Cross-examination 49. Witness called in error not to be cross-examined 41 50. Improper questions 42 51. Leading questions may be asked 43 52. Prior inconsistent statements of witnesses 44 53. Previous representations of other persons 45 54. Production of documents 46 55. Leave to recall witnesses 47 56. Cross-examination of witness by unrepresented party 47 57. No direct cross-examination of certain witnesses by unrepresented accused 49 Division 2 — Documents 58. Terms used 51 59. Proof of contents of documents 51 60. Documents in foreign countries 53 61. Original document rule abolished 54 62. Copies of dutiable instruments 54 Division 3 — Other ways of adducing evidence 63. Adducing of other evidence not affected 54 64. Demonstrations, experiments and inspections 55 65. Demonstrations, experiments and inspections to be evidence 56 66. Charts, summaries and explanatory documents 56 67. Court may require voluminous or complex evidence to be given in another form 56 Part 3 — Admissibility of evidence Division 1 — Relevance 68. Relevant evidence 58 69. Relevant evidence to be admissible 58 70. Provisional relevance 58 71. Inferences as to relevance 59

Evidence Bill 2025 Contents page iv Division 2 — Hearsay Subdivision 1 — Hearsay rule 72. Hearsay rule: exclusion of hearsay evidence 59 73. Exception: evidence relevant for non-hearsay purpose 60 74. Exceptions to hearsay rule dependent on competency 61 Subdivision 2 — First-hand hearsay 75. Restriction to first-hand hearsay 61 76. Exception: civil proceeding if maker not available 62 77. Exception: civil proceeding if maker available 62 78. Exception: criminal proceeding if maker not available 63 79. Exception: criminal proceeding if maker available 66 80. Exception: particular contemporaneous statements about person 67 81. Notice to be given 67 82. Objections to tender of hearsay evidence in civil proceeding if maker available 68 Subdivision 3 — Other exceptions to hearsay rule 83. Exception: business records 69 84. Exception: content of tags, labels and writing 70 85. Exception: electronic communication 71 86. Exception: Aboriginal and Torres Strait Islander traditional laws and customs 71 87. Exception: reputation as to relationships and age 71 88. Exception: reputation of public or general rights 72 89. Exception: interlocutory proceedings 72 Division 3 — Opinion 90. Opinion rule 73 91. Exception: evidence relevant otherwise than as opinion evidence 73 92. Exception: lay opinions 74 93. Exception: Aboriginal and Torres Strait Islander traditional laws and customs 74 94. Exception: opinions based on specialised knowledge 74 95. Ultimate issue and common knowledge rules abolished 75

Evidence Bill 2025 Contents page v Division 4 — Admissions 96. Hearsay and opinion rules: exception for admissions and related representations 75 97. Exclusion of evidence of admissions that is not first-hand 76 98. Exclusion of evidence of admissions as against third parties 76 99. Exclusion of admissions influenced by violence and certain other conduct 77 100. Criminal proceedings: reliability of admissions by accused 77 101. Criminal proceedings: exclusion of records of oral questioning 78 102. Admissions made with authority 79 103. Proof of admissions 80 104. Criminal proceedings: evidence of silence 80 105. Criminal proceedings: discretion to exclude admissions 81 106. Criminal investigation rules about admissions not affected 81 Division 5 — Evidence of judgments and convictions 107. Exclusion of evidence of judgments and convictions 81 108. Exceptions 82 109. Savings 83 Division 6 — Tendency and coincidence 110. Application of Division 83 111. Use of evidence for other purposes 84 112. Failure to act 84 113. Tendency rule 84 114. Admissibility of tendency evidence in proceeding involving child sexual offence 85 115. Coincidence rule 88 116. Requirements for notices 89 117. Court may dispense with notice requirements 89 118. Further restrictions on tendency evidence and coincidence evidence adduced by prosecution 90

Evidence Bill 2025 Contents page vi Division 7 — Credibility Subdivision 1 — Preliminary 119. Term used: credibility evidence 91 Subdivision 2 — Credibility of witnesses 120. Credibility rule 91 121. Exception: cross-examination as to credibility 91 122. Further protections: cross-examination of accused 92 123. Exception: rebutting denials by other evidence 93 124. Exception: re-establishing credibility 94 Subdivision 3 — Credibility of persons who are not witnesses 125. Admissibility of evidence of credibility of person who has made previous representation 95 126. Further protections: previous representations of accused who is not witness 95 Subdivision 4 — Persons with specialised knowledge 127. Exception: evidence of persons with specialised knowledge 97 Division 8 — Character 128. Application of Division 98 129. Evidence about character of accused 98 130. Evidence about character of co-accused 98 131. Leave required to cross-examine about character of accused 99 Division 9 — Identification evidence 132. Application of Division 99 133. Terms used 99 134. Exclusion of certain police-assisted identification evidence 100 135. Directions to jury 101 Division 10 — Evidence of family violence Subdivision 1 — Preliminary 136. Terms used 102 137. What may constitute evidence of family violence 102

Evidence Bill 2025 Contents page vii Subdivision 2 — Admissibility of evidence of family violence 138. Expert evidence of family violence 104 139. Evidence of family violence: general provision 105 140. Evidence of family violence: self-defence 105 Subdivision 3 — Directions relating to family violence in criminal proceedings 141. Request for direction on family violence: self-defence 105 142. Request for direction on family violence: general 106 143. Content of direction on family violence: self-defence 107 144. Content of direction on family violence: general 107 145. Application to criminal proceeding without jury 110 146. Other directions may be given 110 Subdivision 4 — Application to civil proceedings 147. Court may take into account family violence direction matters 110 Part 4 — Privileges Division 1 — Client legal privilege 148. Terms used 112 149. Legal advice 114 150. Litigation 114 151. Unrepresented parties 115 152. Loss of client legal privilege: generally 116 153. Loss of client legal privilege: consent and related matters 116 154. Loss of client legal privilege: accused 118 155. Loss of client legal privilege: joint clients 118 156. Loss of client legal privilege: misconduct 119 157. Loss of client legal privilege: related communications and documents 119 Division 2 — Professional confidential relationship privilege 158. Terms used 120 159. Exclusion of evidence of protected confidences 121 160. Loss of professional confidential relationship privilege: consent 123

Evidence Bill 2025 Contents page viii 161. Loss of professional confidential relationship privilege: misconduct 123 162. Ancillary orders 124 163. Relationship between this Division and other privileges 124 Division 3 — Counselling communications relating to sexual offences 164. Terms used 124 165. Counselling communications that are protected communications 125 166. Protected communications not to be disclosed 127 167. Application for leave 128 168. Hearing of application 129 169. Test to be applied by court 130 170. Establishing legitimate forensic purpose 130 171. Public interest test 132 172. Effect of consent 133 173. Loss of privilege: misconduct 133 174. Ancillary orders 134 175. Application of other laws 134 176. Application to civil proceedings 135 177. Regulations 135 Division 4 — Journalist privilege 178. Application of Division 135 179. Terms used 136 180. Journalist privilege relating to identity of informant 137 181. Exclusion of journalist privilege: public interest test 138 182. Special consideration: misconduct 139 183. Application of journalist privilege to preliminary proceedings 141 184. Ancillary orders 142 Division 5 — Self-incrimination 185. Terms used 142 186. Privilege in respect of self-incrimination in other proceedings 143 187. Effect of evidence certificate 144 188. Privilege in respect of self-incrimination: disclosure orders 146

Evidence Bill 2025 Contents page ix 189. Effect of disclosure certificate 147 190. Court may restrict publication of evidence 148 191. Self-incrimination: witnesses in public revenue proceedings 149 Division 6 — Evidence excluded in the public interest 192. Exclusion of evidence of reasons for judicial and other decisions 150 193. Exclusion of evidence of matters of state 151 194. Exclusion of evidence of settlement negotiations 153 Division 7 — General 195. Court to inform of rights to make applications and objections 156 196. Court may inspect documents 156 197. Inadmissibility of evidence that must not be adduced or given 156 198. Derogation of privilege in civil proceedings 157 199. No privilege against self-incrimination for bodies corporate 158 200. No confessional privilege in proceedings relating to child sexual offences or sexual abuse 158 Part 5 — Exclusion of evidence 201. General discretion to exclude evidence 160 202. General discretion to limit use of evidence 160 203. Exclusion of prejudicial evidence in criminal proceeding 160 204. Exclusion of improperly or illegally obtained evidence 160 205. Cautioning of persons 162 206. Exclusion of certain evidence relating to complainant or witness 164 Part 6 — Special arrangements for taking evidence Division 1 — Use of video links and audio links by courts and recognised courts 207. Terms used 166

Evidence Bill 2025 Contents page x 208. Court may take evidence by video link or audio link 166 209. Counsel entitled to practise 167 210. Recognised court may take evidence or receive submission in this State 168 211. Privileges, protection and immunity of participants in proceeding in recognised court 169 212. Recognised court may administer oath in this State 170 213. Assistance to recognised court 170 214. Contempt of recognised court 171 215. Operation of other laws 171 Division 2 — Examination of witnesses outside the State 216. Terms used 172 217. Court may make extra-territorial examination order 173 218. Admission of evidence taken under extra-territorial examination order 174 219. Operation of other laws 176 220. Regulations and rules of court 176 Division 3 — Assistance to other Australian courts and foreign courts 221. Terms used 176 222. Application to Supreme Court for assistance 177 223. Supreme Court may make order to assist in obtaining evidence 177 224. Privilege of witnesses 179 225. Rules of court 180 226. Offence of giving false testimony 180 227. Operation of other laws 181 Part 7 — Witness assistance measures Division 1 — Preliminary 228. Terms used 182 229. Witnesses who must be treated as special witness 184 230. Witnesses who may be declared to be special witness 185

Evidence Bill 2025 Contents page xi Division 2 — Support and communication assistance for children and special witnesses 231. Use of support person 186 232. Use of support animal 186 233. Use of communicator 187 Division 3 — Admission of out-of-court representations 234. Application of Division 188 235. Term used: out-of-court representation 188 236. Admission of out-of-court representations 189 237. Application of rules of evidence 191 Division 4 — Admission of recorded statements 238. Application of Division 191 239. Terms used 192 240. Recorded statement admissible as evidence in chief 192 241. Statement admissibility regulations 194 242. Statement must be provided to accused 194 243. Accused must be given opportunity to cross-examine complainant 195 244. Application of rules of evidence 196 245. Presentation of recorded statement 196 246. Further evidence 197 247. Presence of complainant not required during presentation of statement 197 248. Warning and comments to jury 197 249. Other regulations 198 Division 5 — Admission of recorded interviews 250. Application of Division 199 251. Terms used 199 252. Recorded interview admissible as evidence in chief 199 253. Regulations may specify admissibility requirements for interviews 201 254. Interview must be provided to accused 202 255. Application of rules of evidence 202 256. Presentation of recorded interview 203 257. Further evidence 203 258. Presence of person interviewed not required during presentation of interview 204

Evidence Bill 2025 Contents page xii 259. Warning and comments to jury 204 260. Other regulations 205 Division 6 — Pre-recording procedure 261. Terms used 206 262. General provisions about pre-recording orders 206 263. Circumstances in which pre-recording order may be made 207 264. Conduct of special hearing 209 265. Restrictions on persons who may be present at special hearing 209 266. Alternative arrangements for attendance at special hearing 210 267. Use of recorded statement or interview at special hearing 211 268. Admissibility of recording of evidence taken at special hearing 211 269. Presentation of recording of evidence 212 270. Presence of witness not required during presentation of recording of evidence 213 271. Witness may be required to give further evidence 213 272. Identification of accused 214 273. Warning to jury 215 Division 7 — Video link separation and screening procedures 274. Application of Division 215 275. Terms used 215 276. General provisions about video link separation orders 215 277. Circumstances in which video link separation procedure is mandatory 217 278. Other circumstances in which video link separation procedure may be used 218 279. Access to legal counsel 219 280. Evidence of witness to be recorded 219 281. Use of screening procedure 220 282. Identification of accused 220 283. Instruction to jury 221

Evidence Bill 2025 Contents page xiii Division 8 — Witness intermediaries 284. Terms used 221 285. Establishment of witness intermediary service 221 286. Proceedings for which witness intermediary service is available 222 287. General functions of witness intermediary 222 288. Specific functions in proceedings 223 289. Assessment of whether witness requires witness intermediary 224 290. Witnesses who are eligible for witness assessment 224 291. Appointment of witness intermediary in proceeding 225 292. Witness who declines witness assessment or services of witness intermediary 226 Division 9 — Communication directions 293. Term used: communication directions 227 294. Communication directions relating to witnesses 227 295. Ground rules hearing 228 296. Timing of ground rules hearing 229 297. Conduct of ground rules hearing 229 298. Other powers of court not affected 229 Division 10 — Access to and use of protected recordings 299. Terms used 230 300. Possessing or supplying protected recordings 230 301. Altering or destroying original protected recording 232 302. Altering copy of protected recording 232 303. Copying protected recording 232 304. Playing protected recordings 233 305. Protected recordings may be played for instructional purposes 234 306. Publication of protected recordings prohibited 235 307. Playing or tendering altered versions of protected recordings in proceedings 235 308. Court may give directions about protected recordings 236

Evidence Bill 2025 Contents page xiv Division 11 — Miscellaneous 309. Hearing to consider orders that should be made 236 310. Disclosure of protected communications in connection with support measures 237 311. Dispensing with special procedure for giving evidence 238 Part 8 — Proof Division 1 — Standard of proof 312. Civil proceeding: standard of proof 240 313. Criminal proceeding: standard of proof 240 314. Admissibility of evidence: standard of proof 240 Division 2 — Corroboration 315. Corroboration not required 241 Division 3 — Warnings and information 316. Term used: delay 242 317. Unreliable evidence 242 318. Warnings about evidence given by children 243 319. Warnings about delays causing forensic disadvantage 244 320. Prohibited directions about delays in complaint about sexual and family violence offences 245 321. Required direction for delays in complaint about sexual and family violence offences 246 Division 4 — Requests between parties relating to evidence 322. Application of Division 248 323. Term used: request 248 324. Requests may be made about certain matters 249 325. Time limits for making requests 249 326. Failure or refusal to comply with requests 250 Part 9 — Judicial notice and facilitation of proof Division 1 — Matters of common knowledge 327. Judicial notice to be taken of matters of common knowledge 253

Evidence Bill 2025 Contents page xv Division 2 — Proof of laws 328. Judicial notice to be taken of Australian laws 254 329. Proof of laws of foreign countries 255 330. Evidence of law reports of foreign countries 255 331. Questions of foreign law to be decided by judge 256 Division 3 — Proof of public documents and other official matters 332. Presumption as to authenticity of official publications 257 333. Presumption as to regularity of acts notified in official publications 257 334. Presumption as to authenticity of Parliamentary documents 258 335. Presumption as to authenticity of Commonwealth records and public documents 259 336. Presumption as to authenticity of copies, extracts and summaries of public documents 260 337. Presumption as to authenticity of official seals and signatures 261 338. Proof of public documents of other States or Territories 262 339. Proof of public documents relating to judgments, acts and processes of courts 263 340. Proof of official statistics 264 Division 4 — Proof of other matters relating to documents and things 341. Presumption relating to documents and things produced by processes and devices 264 342. Presumption relating to business documents produced by processes and devices 265 343. Findings about accuracy of documents produced by devices and processes 266 344. Presumption as to documents attested by justices, lawyers and notaries public 267 345. Testimony of attesting witness not required 267 346. Presumption as to documents produced from proper custody 268 347. Proof of foreign documents admissible in foreign countries 268

Evidence Bill 2025 Contents page xvi Division 5 — Proof of communications 348. Presumption relating to receipt of postal articles 269 349. Presumptions relating to electronic communications 269 350. Presumption relating to receipt of lettergrams and telegrams 270 Division 6 — Proof of matters relating to documents or things by affidavit or written statement 351. Application of Division 271 352. Persons who may give evidence 272 353. Form in which evidence may be given 273 354. Evidence based on knowledge, belief or information 273 355. Notification of other parties 274 Division 7 — Proof of other matters by certificate or affidavit 356. Certificate of expert evidence 274 357. Certificate evidence of convictions, acquittals, sentences and other court matters 275 358. Affidavit evidence of identity of convicted persons by State and Territory police 277 359. Affidavit evidence of identity of convicted persons by AFP employees and special members 277 360. Forensic biology certificates 278 361. Procedure for using forensic biology certificates 280 362. Appointment of persons as forensic scientists for purposes of s. 360 281 363. Proof of service of statutory notifications, notices, orders and directions 282 Division 8 — Proof of particular matters in criminal proceedings 364. Proof of intention to injure, deceive or defraud 282 365. Evidence of stealing or receiving property from aircraft, vehicle, vessel or related premises 282 366. Proof of stealing money 284

Evidence Bill 2025 Contents page xvii Part 10 — Miscellaneous 367. Inferences 285 368. Accused may admit matters and give consents 285 369. Impounding documents 285 370. Preliminary questions 286 371. Waiver of rules of evidence 288 372. Agreements as to facts 289 373. Leave, permission or direction may be subject to conditions 289 374. Advance rulings and findings 290 375. Additional powers of court in relation to discovery and disclosure 290 376. Additional power to make rules of court 291 377. Witness who fails to attend proceeding 292 378. Payments to witnesses and others for eligible service 293 379. Recovery of amounts payable 295 380. Prohibited question not to be published 296 381. Identity of certain witnesses not to be published 296 382. Customs prosecutions 298 383. Regulations 299 384. Review of Act 299 385. Review of provisions relating to recorded statements 300 Part 11 — Repeal, savings and transitional provisions Division 1 — Repeals 386. Evidence Act 1906 repealed 301 387. Regulations under Evidence Act 1906 repealed 301 Division 2 — Savings and transitional provisions 388. Terms used 301 389. Application of Act to proceedings 302 390. Documents served or given 303 391. Documents and other things examined, copied or viewed 303 392. Things done between parties 304

Evidence Bill 2025 Contents page xviii 393. Identification evidence 304 394. Privileges 304 395. Cautioning of persons 305 396. Out-of-court representations 305 397. Recorded interviews 305 398. Visual recordings of evidence 306 399. Restrictions on use of audio evidence under former Act 307 400. Restrictions on use of former Act recordings 307 401. Publication of former Act recordings prohibited 309 402. Playing or tendering altered recording in proceeding 309 403. Power to give directions about former Act recordings 310 404. Use of Justice documents 310 405. Facilitation of proof of documents 310 406. Admission of police affidavits 310 407. DNA certificates given before commencement 310 408. Restrictions on publishing names of complainants 310 409. Continuation of orders, directions, leave and other things done under former Act 311 410. Saving of self-incrimination certificates given under former Act 311 411. Construction of references 311 412. Transitional regulations 312 Part 12 — Consequential amendments to other Acts Division 1 — Aquatic Resources Management Act 2016 amended 413. Act amended 314 414. Section 240 amended 314 Division 2 — Australia and New Zealand Banking Group Act 1970 amended 415. Act amended 314 416. Section 10 deleted 314 417. Section 18 deleted 314

Evidence Bill 2025 Contents page xix Division 3 — Australia and New Zealand Banking Group Limited (NMRB) Act 1991 amended 418. Act amended 315 419. Section 10 amended 315 420. Section 18 amended 315 421. Section 19 amended 315 Division 4 — Australia and New Zealand Banking Group Limited (Town & Country) Act 1995 amended 422. Act amended 315 423. Section 11 amended 315 Division 5 — Bank of Western Australia Act 1995 amended 424. Act amended 315 425. Section 33 amended 315 Division 6 — Child Care Services Act 2007 amended 426. Act amended 316 427. Section 44 amended 316 428. Section 46A inserted 316 46A. Interaction with protections in Evidence Act 2025 316 Division 7 — Children and Community Services Act 2004 amended 429. Act amended 317 430. Section 149 amended 318 431. Section 238A inserted 318 238A. Interaction with protections in Evidence Act 2025 318 432. Section 239 amended 319 Division 8 — Control of Vehicles (Off-road Areas) Act 1978 amended 433. Act amended 319 434. Section 28A amended 319 Division 9 — Corruption, Crime and Misconduct Act 2003 amended 435. Act amended 320 436. Section 3 amended 320

Evidence Bill 2025 Contents page xx 437. Section 94 amended 320 438. Section 145 amended 320 Division 10 — The Criminal Code amended 439. Act amended 321 440. Sections 540 and 541 deleted 321 Division 11 — Criminal Investigation Act 2006 amended 441. Act amended 321 442. Section 48 amended 321 443. Section 118 amended 321 444. Part 11A inserted 322 Part 11A — Creating recorded statements for use as evidence 124A. Terms used 322 124B. Police officer may create recorded statement for use as evidence 322 124C. Consent of person making statement 323 124D. Recordings to be retained by police 323 445. Section 138 amended 324 446. Section 154 amended 324 447. Section 155 deleted 324 Division 12 — Criminal Procedure Act 2004 amended 448. Act amended 325 449. Section 42 amended 325 450. Section 64 amended 325 451. Section 88 amended 325 452. Section 98 amended 326 453. Section 109 amended 326 454. Section 119 amended 326 455. Section 137A amended 326 456. Section 137B inserted 327 137B. Restrictions on disclosure of recorded evidence 327 457. Section 144 amended 328 458. Section 168 amended 328 459. Section 171 amended 329 460. Section 172 amended 329 461. Schedule 3 clause 2 replaced 330 2. Evidence Act 2025 not affected 330

Evidence Bill 2025 Contents page xxi 462. Schedule 3 clause 6 amended 330 463. Schedule 3 clause 7 amended 330 464. Schedule 3 clause 8 inserted 331 8. Access of accused to some recorded evidence restricted 331 Division 13 — Criminal Property Confiscation Act 2000 amended 465. Act amended 332 466. Sections 109A to 109E inserted 332 109A. Terms used 332 109B. Admissibility of business records 334 109C. Weight of evidence admitted under s. 109B 335 109D. Evidence as to credibility of qualified persons 336 109E. Dispute as to happening of event 337 467. Glossary clause 1 amended 338 Division 14 — High Risk Serious Offenders Act 2020 amended 468. Act amended 338 469. Section 39 amended 338 470. Section 69 amended 339 Division 15 — Juries Act 1957 amended 471. Act amended 339 472. Part VIII heading amended 339 473. Section 51 amended 339 Division 16 — Licensed Surveyors Act 1909 amended 474. Act amended 340 475. Section 8B amended 340 476. Third Schedule amended 340 Division 17 — Privacy and Responsible Information Sharing Act 2024 amended 477. Act amended 341 478. Section 158 amended 341 Division 18 — Restraining Orders Act 1997 amended 479. Act amended 341 480. Section 53B replaced 341 53B. Evidence of children 341

Evidence Bill 2025 Contents page xxii Division 19 — Spent Convictions Act 1988 amended 481. Act amended 342 482. Section 14 replaced 342 14. Division 4 does not apply to proceedings in which laws of evidence apply 342 14A. Division 4 does not affect Commissioner of Police acting under s. 7 343 Division 20 — Supreme Court Act 1935 amended 483. Act amended 343 484. Section 42 amended 343 485. Section 172 deleted 343 Division 21 — The Commercial Bank of Australia Limited (Merger) Act 1982 amended 486. Act amended 343 487. Section 11 amended 343 Division 22 — The Commercial Banking Company of Sydney Limited (Merger) Act 1982 amended 488. Act amended 344 489. Section 10 amended 344 Division 23 — Westpac Banking Corporation (Challenge Bank) Act 1996 amended 490. Act amended 344 491. Section 15 amended 344 Division 24 — Other Acts amended 492. Various references to “Evidence Act 1906” amended 344 Defined terms

page 1 Western Australia LEGISLATIVE ASSEMBLY Evidence Bill 2025 A Bill for An Act — • to provide for the law of evidence; and • to repeal the Evidence Act 1906 and regulations made under that Act; and • to make consequential amendments to various Acts. The Parliament of Western Australia enacts as follows:

Evidence Bill 2025 Part 1 Preliminary Division 1 Introduction s. 1 page 2 Part 1 — Preliminary1 Division 1 — Introduction2

1. Short title3 This is the Evidence Act 2025.4
2. Commencement5 This Act comes into operation as follows —6 (a) Part 1 — on the day on which this Act receives the7 Royal Assent;8 (b) Part 12 Division 1 —9 (i) if the Aquatic Resources Management Act 201610 section 240 comes into operation on or before the11 day fixed under paragraph (d) for section 386 —12 on the day fixed under paragraph (d) for13 section 386; or14 (ii) otherwise — immediately after the Aquatic15 Resources Management Act 2016 section 24016 comes into operation;17 (c) Part 12 Division 17 —18 (i) if the Privacy and Responsible Information19 Sharing Act 2024 section 158 comes into20 operation on or before the day fixed under21 paragraph (d) for section 386 — on the day fixed22 under paragraph (d) for section 386; or23 (ii) otherwise — immediately after the Privacy and24 Responsible Information Sharing Act 202425 section 158 comes into operation;26 (d) the rest of the Act — on a day fixed by proclamation,27 and different days may be fixed for different provisions.28

Evidence Bill 2025 Preliminary Part 1 Interpretation Division 2 s. 3 page 3 Division 2 — Interpretation1 3. Terms used2 (1) In this Act —3 accused means a person alleged in a prosecution notice or4 indictment to have committed an offence;5 admission means a previous representation that is —6 (a) made by a person who is or becomes a party to a7 proceeding (including an accused in a criminal8 proceeding); and9 (b) adverse to the person’s interest in the outcome of the10 proceeding;11 asserted fact has the meaning given in section 72(1);12 audio link means facilities (including telephone) that enable, at13 the same time, a court at a place to hear a person at another14 place and vice versa;15 Australia includes each external Territory;16 Australian court means —17 (a) the High Court of Australia; or18 (b) a court exercising federal jurisdiction; or19 (c) a court of a State or Territory; or20 (d) a judge, justice or arbitrator under an Australian law; or21 (e) a person or body authorised by an Australian law, or by22 consent of parties, to hear, receive and examine23 evidence; or24 (f) a person or body that, in exercising a function under an25 Australian law, is required to apply the laws of26 evidence;27 Australian law means a law of the Commonwealth, a State or a28 Territory;29 Australian or overseas proceeding means a proceeding30 (however described) in an Australian court or a foreign court;31

Evidence Bill 2025 Part 1 Preliminary Division 2 Interpretation s. 3 page 4 Australian Parliament means —1 (a) the Parliament; or2 (b) the Parliament of the Commonwealth or of another3 State; or4 (c) any present or former Legislative Assembly of a5 Territory, including the Australian Capital Territory6 House of Assembly;7 business has a meaning affected by section 4;8 case, of a party, means the facts in issue in respect of which the9 party bears the legal burden of proof;10 child means —11 (a) a person under 18 years of age; or12 (b) a person referred to in paragraph (b), (c) or (d) of the13 definition of child in the Children’s Court of Western14 Australia Act 1988 section 3(1);15 civil proceeding means a proceeding other than a criminal16 proceeding;17 client has a meaning affected by section 148(1);18 co-accused, in relation to an accused in a criminal proceeding,19 means a person against whom a prosecution has been instituted,20 but not yet completed or terminated, for —21 (a) an offence that arose in relation to the same events as22 those in relation to which the offence for which the23 accused is being prosecuted arose; or24 (b) an offence that relates to or is connected with the25 offence for which the accused is being prosecuted;26 coincidence evidence means evidence of a kind referred to in27 section 115(1) that a party seeks to have adduced for the28 purpose referred to in that subsection;29 coincidence rule means the rule of evidence provided for by30 section 115(1);31

Evidence Bill 2025 Preliminary Part 1 Interpretation Division 2 s. 3 page 5 complainant —1 (a) in relation to an offence — means a person against or in2 respect of whom the offence was or is alleged to have3 been committed, attempted or proposed, regardless of4 whether a complaint about the offence has been made to5 or recorded by a police officer; and6 (b) in a criminal proceeding — means the person against or7 in respect of whom the offence the subject of the8 proceeding was or is alleged to have been committed,9 attempted or proposed;10 court means —11 (a) the Supreme Court, the District Court, the Children’s12 Court, the Family Court, the Magistrates Court, a13 warden’s court under the Mining Act 1978 or a court of14 summary jurisdiction (as defined in the Criminal15 Procedure Act 2004 section 3(1)); or16 (b) the Coroner’s Court of Western Australia; or17 (c) any other court created by Parliament; or18 (d) any person or body that, in exercising a function under a19 written law, is required to apply the laws of evidence;20 credibility, of a person who has made a representation that has21 been admitted in evidence —22 (a) means the credibility of the representation; and23 (b) includes the person’s ability to observe or remember24 facts and events about which the person made the25 representation;26 credibility, of a witness —27 (a) means the credibility of any part or all of the evidence of28 the witness; and29 (b) includes the witness’s ability to observe or remember30 facts and events about which the witness has given, is31 giving or is to give evidence;32

Evidence Bill 2025 Part 1 Preliminary Division 2 Interpretation s. 3 page 6 credibility rule means the rule of evidence provided for by1 section 120;2 criminal or identified organisation means —3 (a) a criminal organisation as defined in The Criminal Code4 section 221D(1); or5 (b) an organisation named in the Criminal Law (Unlawful6 Consorting and Prohibited Insignia) Act 20217 Schedule 2;8 criminal or identified organisation offence means an offence9 alleged to have been committed —10 (a) by a person who, at the time of the commission of the11 alleged offence, is alleged to have been a member of a12 criminal or identified organisation; or13 (b) at the direction of a criminal or identified organisation;14 or15 (c) in association with 1 or more members of a criminal or16 identified organisation (whether or not those members17 are or have been charged with, or convicted of, the18 offence); or19 (d) for the benefit of a criminal or identified organisation;20 criminal proceeding —21 (a) means a prosecution for an offence, other than a22 prescribed taxation offence as defined in the Taxation23 Administration Act 1953 (Commonwealth) section 8A;24 and25 (b) includes the following stages of a prosecution —26 (i) a proceeding for the committal of a person for27 trial or sentence for the offence;28 (ii) a proceeding relating to bail;29 cross-examination has the meaning given in section 5(2);30 cross-examiner means a party who is cross-examining a31 witness;32

Evidence Bill 2025 Preliminary Part 1 Interpretation Division 2 s. 3 page 7 disability includes the following —1 (a) mental impairment;2 (b) a developmental disorder;3 (c) a neurological disorder;4 (d) a physical disability;5 document has the meaning given in section 6(1) and (2);6 electronic communication has the meaning given in the7 Electronic Transactions Act 2011 section 5(1);8 examination in chief has the meaning given in section 5(1);9 external Territory has the meaning given in the Acts10 Interpretation Act 1901 (Commonwealth) section 2B;11 family violence has the meaning given in the Restraining12 Orders Act 1997 section 5A;13 family violence offence means an offence that involves family14 violence or the threat of, or attempted, family violence;15 foreign court means any court (including any person or body16 authorised to take or receive evidence, whether on behalf of a17 court or otherwise and whether or not the person or body has18 power to require the answering of questions or the production of19 documents) of a foreign country or a part of a foreign country;20 government or official gazette includes the Gazette;21 government or official website includes the WA legislation22 website;23 ground rules hearing has the meaning given in section 295(1);24 harm includes actual physical bodily harm, financial loss, stress25 or shock, damage to reputation or emotional or psychological26 harm (such as shame, humiliation and fear);27 hearsay rule means the rule of evidence provided for by28 section 72(1);29 identification evidence has the meaning given in section 133;30

Evidence Bill 2025 Part 1 Preliminary Division 2 Interpretation s. 3 page 8 investigating official means —1 (a) a police officer (other than a police officer who is2 engaged in covert investigations under the orders of a3 superior); or4 (b) a person appointed by or under an Australian law (other5 than a person who is engaged in covert investigations6 under the orders of a superior) whose functions include7 functions in respect of the prevention or investigation of8 offences;9 judge, in relation to a proceeding, means the judge, magistrate10 or other person before whom the proceeding is being held;11 law, of the State, the Commonwealth, another State, a Territory12 or a foreign country, has the meaning given in section 10;13 leading question means a question asked of a witness that —14 (a) directly or indirectly suggests a particular answer to the15 question; or16 (b) assumes the existence of a fact the existence of which is17 in dispute in the proceeding and as to the existence of18 which the witness has not given evidence before the19 question is asked;20 legal counsel means —21 (a) a legal practitioner; or22 (b) a lawyer employed in or by a government agency or23 other body who by law is exempted from holding an24 Australian practising certificate (as defined in the Legal25 Profession Uniform Law (WA) section 6(1)), or who26 does not require an Australian practising certificate, to27 engage in legal practice in the course of that28 employment;29 mental impairment has the meaning given in the Criminal Law30 (Mental Impairment) Act 2023 section 9(1);31

Evidence Bill 2025 Preliminary Part 1 Interpretation Division 2 s. 3 page 9 minister of religion —1 (a) means a person who is recognised in accordance with2 the practices of a faith or religion as a person who is3 authorised to conduct services or ceremonies in4 accordance with the tenets of the faith or religion; and5 (b) includes such a person regardless of how the person’s6 position or title is described (for example, member of7 the clergy, priest, minister, imam, rabbi or pastor);8 offence —9 (a) means an offence against or arising under an Australian10 law; and11 (b) includes an alleged offence;12 offspring, of a person, has the meaning given in section 13(1);13 opinion rule means the rule of evidence provided for by14 section 90(1);15 parent, of a person, has a meaning affected by section 13;16 party, in a criminal proceeding, includes an accused;17 person acting judicially —18 (a) means any person or body having, in this State, by law19 or by consent of the parties, authority to hear, receive20 and examine evidence; but21 (b) does not include —22 (i) the State Administrative Tribunal or a member of23 the State Administrative Tribunal exercising the24 jurisdiction of the Tribunal; or25 (ii) a member of a House of Parliament or a26 committee of a House, or both Houses, of27 Parliament who, by law, has authority to hear,28 receive and examine evidence;29 police officer means —30 (a) a member or special member of the Australian Federal31 Police; or32

Evidence Bill 2025 Part 1 Preliminary Division 2 Interpretation s. 3 page 10 (b) a member of the police force of a State or Territory;1 previous representation means a representation made otherwise2 than in the course of giving evidence in the proceeding in which3 evidence of the representation is sought to be adduced;4 prior consistent statement, of a witness, means a previous5 representation of the witness that is consistent with evidence6 given by the witness;7 prior inconsistent statement, of a witness, means a previous8 representation of the witness that is inconsistent with evidence9 given by the witness;10 probative value, of evidence, means the extent to which the11 evidence could rationally affect the assessment of the12 probability of the existence of a fact in issue;13 proceeding includes a proceeding that —14 (a) relates to bail; or15 (b) is an interlocutory proceeding or proceeding of a similar16 kind; or17 (c) is heard in chambers; or18 (d) relates to sentencing;19 prosecutor means a person who institutes or is responsible for20 the conduct of a prosecution;21 protected communication has the meaning given in22 section 165(1);23 public document has the meaning given in section 6(3) and (4);24 publish means to disseminate to the public or a section of the25 public by any means, including the following —26 (a) in a newspaper or periodical publication;27 (b) by radio broadcast, television, a website, an online28 facility or other electronic means;29 re-examination has the meaning given in section 5(3);30 related proceeding, in relation to another proceeding, means —31 (a) a retrial or rehearing of the other proceeding; or32

Evidence Bill 2025 Preliminary Part 1 Interpretation Division 2 s. 3 page 11 (b) a proceeding by way of appeal from, or judicial review1 of, a decision made or penalty imposed in the other2 proceeding;3 representation includes the following —4 (a) an express or implied representation (whether oral or in5 writing);6 (b) a representation to be inferred from conduct;7 (c) a representation not intended by its maker to be8 communicated to or seen by another person;9 (d) a representation that for any reason is not10 communicated;11 screening procedure means a procedure that involves the use of12 a screen, one-way glass or other device in relation to a witness13 while the witness gives evidence in a proceeding so that —14 (a) the witness cannot see a party to the proceeding; and15 (b) the witness can be seen by the judge, the jury (if any),16 each party to the proceeding and each party’s legal17 counsel (if any);18 seal includes a stamp;19 sexual abuse includes any misconduct of a sexual nature;20 sexual offence means the following —21 (a) an offence under The Criminal Code Chapter XXXI;22 (b) an offence of a sexual nature under The Criminal Code23 Chapter XXII, XXV, XXVA or XXXIIIB;24 (c) an offence under a provision of The Criminal Code or25 another written law that has been repealed, if the acts or26 omissions that constituted the offence under the repealed27 provision would constitute an offence referred to in28 paragraph (a) or (b);29

Evidence Bill 2025 Part 1 Preliminary Division 2 Interpretation s. 3 page 12 (d) any other offence of a sexual nature —1 (i) including an offence under The Criminal Code2 section 306 or the Children and Community3 Services Act 2004 section 192; but4 (ii) not including conduct of a person that has ceased5 to be an offence against, or arising under, a law6 of this State since the time when the person7 engaged in the conduct;8 (e) an offence of attempting to commit, conspiring with9 another person to commit, inciting another person to10 commit or attempting to procure another person to11 commit, an offence referred to in paragraph (a), (b), (c)12 or (d);13 sexual offence complainant means a complainant in relation to14 a sexual offence;15 special witness has the meaning given in section 228(1);16 superior court means the Supreme Court, the District Court or17 the Family Court, except when exercising federal jurisdiction;18 tendency evidence means evidence of a kind referred to in19 section 113(1) that a party seeks to have adduced for the20 purpose referred to in that subsection;21 tendency rule means the rule of evidence provided for by22 section 113(1);23 traditional laws and customs, of an Aboriginal or Torres Strait24 Islander group (including a kinship group), includes any of the25 traditions, customary laws, customs, observances, practices,26 knowledge and beliefs of the group;27 tribunal, of a State or Territory, means a person or body28 authorised by or under a law of the State or Territory to take29 evidence on oath or affirmation;30 video link means facilities (including closed-circuit television)31 that enable, at the same time, a court at a place to see and hear a32 person at another place and vice versa;33

Evidence Bill 2025 Preliminary Part 1 Interpretation Division 2 s. 3 page 13 video link separation procedure means a procedure for giving1 evidence under which —2 (a) a witness gives evidence at a separate place to the3 courtroom, while the evidence is transmitted to the4 courtroom by means of a video link; or5 (b) a party is required to remain in a separate place to the6 courtroom while a witness gives evidence in the7 courtroom and the evidence of the witness is transmitted8 by means of video link to the place in which the party9 remains while the evidence is given;10 WA tribunal —11 (a) means a tribunal established in this State under a written12 law; but13 (b) does not include the State Administrative Tribunal;14 witness includes —15 (a) a party giving evidence; and16 (b) a person who is to give evidence as a witness in a17 proceeding.18 (2) A reference in this Act to a witness who has been called by a19 party to give evidence includes a reference to the party giving20 evidence.21 (3) In this Act —22 (a) a reference to a person appointed or holding office under23 or because of a law of the State or another Australian24 law includes a reference to an employee as defined in25 the Public Sector Management Act 1994 section 3(1);26 and27 (b) a reference to a person appointed or holding office under28 or because of a law of the Commonwealth or another29 Australian law includes a reference to an APS employee30 as defined in the Public Service Act 199931 (Commonwealth) section 7; and32

Evidence Bill 2025 Part 1 Preliminary Division 2 Interpretation s. 4 page 14 (c) for the purposes of paragraphs (a) and (b), a reference to1 an office is a reference to the position occupied by the2 employee concerned.3 (4) Without limiting the effect of the Interpretation Act 19844 section 19, the material that may be considered in accordance5 with that section in the interpretation of a provision of this Act6 includes any relevant report of a Law Reform Commission laid7 before either House of the Parliament of the Commonwealth8 before the provision was enacted.9 Note for this section:10 The Evidence Act 1995 (Commonwealth) sets out a law of evidence11 that is the basis for similar (but not identical) Acts that have been12 enacted in some States and Territories. These Acts are referred to as13 the uniform evidence law. Parts of this Act are based on uniform14 evidence law provisions, as in force at 1 January 2025.15 Parts of this Act are based on provisions of the Evidence Act 1906,16 which is repealed by this Act.17 A note that compares a provision of this Act to a specified provision of18 the Evidence Act 1995 (Commonwealth), the Evidence Act 1995 (New19 South Wales) or the Evidence Act 1906 indicates that the provision of20 this Act is based (in whole or in part, and with possible modifications)21 on the specified provision.22 Compare:23 Evidence Act 1906 s. 3, 109 and 12024 Evidence Act 1995 (Commonwealth) Dictionary25 4. References to business26 (1) A reference in this Act to a business includes a reference to the27 following —28 (a) a profession, calling, occupation, trade or undertaking;29 (b) an activity engaged in or carried on by the30 Commonwealth, a State or a Territory;31 (c) an activity engaged in or carried on by the government32 of a foreign country;33 (d) an activity engaged in or carried on by a person or body34 holding office or exercising power under or because of35

Evidence Bill 2025 Preliminary Part 1 Interpretation Division 2 s. 5 page 15 the Commonwealth Constitution, an Australian law or a1 law of a foreign country, being an activity engaged in or2 carried on in the performance of the functions of the3 office or in the exercise of the power (otherwise than in4 a private capacity);5 (e) the proceedings of an Australian Parliament, a House of6 an Australian Parliament, a committee of a House of an7 Australian Parliament or a committee of an Australian8 Parliament;9 (f) the proceedings of a legislature of a foreign country,10 including a House or committee (however described) of11 a legislature of a foreign country.12 (2) A reference in this Act to a business also includes a reference to13 each of the following —14 (a) a business that is not engaged in or carried on for profit;15 (b) a business engaged in or carried on outside Australia.16 Compare:17 Evidence Act 1995 (Commonwealth) Dictionary Part 2 cl. 118 5. Examination in chief, cross-examination and re-examination19 (1) The examination in chief of a witness is the questioning of a20 witness by the party who called the witness to give evidence,21 not being questioning that is re-examination.22 (2) The cross-examination of a witness is the questioning of a23 witness by a party other than the party who called the witness to24 give evidence.25 (3) The re-examination of a witness is the questioning of a witness26 by the party who called the witness to give evidence, being27 questioning (other than further examination in chief with the28 leave of the court) conducted after the cross-examination of the29 witness by another party.30 (4) If a party recalls a witness who has already given evidence, the31 questioning of the witness by that party before the witness is32

Evidence Bill 2025 Part 1 Preliminary Division 2 Interpretation s. 6 page 16 questioned by another party is taken to be part of the1 examination in chief and not a re-examination of the witness.2 Compare:3 Evidence Act 1995 (Commonwealth) Dictionary Part 2 cl. 24 6. References to documents5 (1) A document is any record of information and includes the6 following —7 (a) anything on which there is writing;8 (b) anything on which there are marks, figures, symbols or9 perforations having a meaning for persons qualified to10 interpret them;11 (c) anything from which sounds, images or writings can be12 reproduced with or without the aid of anything else;13 (d) a map, plan, drawing or photograph.14 (2) A document also includes the following —15 (a) any part of the document;16 (b) any copy, reproduction or duplicate of the document or17 of any part of the document;18 (c) any part of a copy, reproduction or duplicate of a19 document.20 (3) A public document is a document that —21 (a) forms part of the records of the Commonwealth, a State22 or a Territory; or23 (b) forms part of the records of the government of a foreign24 country; or25 (c) forms part of the records of a person or body holding26 office or exercising a function under or because of the27 Commonwealth Constitution, an Australian law or a law28 of a foreign country; or29

Evidence Bill 2025 Preliminary Part 1 Interpretation Division 2 s. 7 page 17 (d) is being kept by or on behalf of the Commonwealth, a1 State or a Territory, a government of a foreign country2 or a person or body referred to in paragraph (c).3 (4) A public document includes the records of the proceedings of,4 and papers presented to —5 (a) an Australian Parliament, a House of an Australian6 Parliament, a committee of a House of an Australian7 Parliament or a committee of an Australian Parliament;8 and9 (b) a legislature of a foreign country, including a House or10 committee (however described) of a legislature of a11 foreign country.12 Compare:13 Evidence Act 1995 (Commonwealth) Dictionary Part 1 and Part 2 cl. 814 7. Representations made in documents15 For the purposes of this Act, a representation contained in a16 document is taken to have been made by a person if —17 (a) the document was written, made or otherwise produced18 by the person; or19 (b) the representation was recognised or acknowledged by20 the person as the person’s representation by signing,21 initialling or otherwise marking the document.22 Compare:23 Evidence Act 1995 (Commonwealth) Dictionary Part 2 cl. 624 8. References to availability of documents and things25 For the purposes of this Act, a document or thing is taken not to26 be available to a party if and only if —27 (a) it cannot be found after reasonable inquiry and search by28 the party; or29

Evidence Bill 2025 Part 1 Preliminary Division 2 Interpretation s. 9 page 18 (b) it was destroyed by the party, or by a person on behalf1 of the party, otherwise than in bad faith, or was2 destroyed by another person; or3 (c) it would be impractical to produce the document or4 thing during the course of the proceeding; or5 (d) production of the document or thing during the course of6 the proceeding could render a person liable to conviction7 for an offence; or8 (e) it is not in the possession or under the control of the9 party and —10 (i) it cannot be obtained by any judicial procedure11 of the court; or12 (ii) it is in the possession or under the control of13 another party to the proceeding concerned who14 knows or might reasonably be expected to know15 that evidence of the contents of the document, or16 evidence of the thing, is likely to be relevant in17 the proceeding; or18 (iii) it was in the possession or under the control of19 another party to the proceeding concerned at a20 time when that party knew or might reasonably21 be expected to have known that evidence of the22 contents of the document, or evidence of the23 thing, was likely to be relevant in the proceeding.24 Compare:25 Evidence Act 1995 (Commonwealth) Dictionary Part 2 cl. 526 9. References to availability to give evidence27 (1) For the purposes of this Act, a person is taken not to be28 available to give evidence about a fact if —29 (a) the person is dead; or30 (b) the person is, for any reason other than the application31 of section 26, not competent to give the evidence; or32

Evidence Bill 2025 Preliminary Part 1 Interpretation Division 2 s. 10 page 19 (c) the person is mentally or physically unable to give the1 evidence and it is not reasonably practicable to2 overcome that inability; or3 (d) the person objects to giving the evidence under4 section 28 and that objection is upheld; or5 (e) it would be unlawful for the person to give the evidence;6 or7 (f) a provision of this Act prohibits the evidence being8 given; or9 (g) all reasonable steps have been taken, by the party10 seeking to prove the person is not available, to find the11 person or secure the person’s attendance, without12 success; or13 (h) all reasonable steps have been taken, by the party14 seeking to prove the person is not available, to compel15 the person to give the evidence, without success.16 (2) In all other cases, the person is taken to be available to give17 evidence about the fact.18 (3) In deciding whether a person is not available to give evidence19 under subsection (1)(b) or (c), a court may inform itself as it20 thinks fit.21 Compare:22 Evidence Act 1995 (Commonwealth) Dictionary Part 2 cl. 423 10. References to laws24 (1) A reference in this Act to a law of the State is a reference to a25 written law or an unwritten law of, or in force in, the State.26 (2) A reference in this Act to a law of the Commonwealth, another27 State, a Territory or a foreign country is a reference to a law28 (whether in the nature of a written law or an unwritten law) of,29 or in force in, that place.30

Evidence Bill 2025 Part 1 Preliminary Division 2 Interpretation s. 11 page 20 (3) A reference in this Act to an Australian law is a reference to an1 Australian law (whether in the nature of a written law or an2 unwritten law) of, or in force in, Australia.3 Compare:4 Evidence Act 1995 (Commonwealth) Dictionary Part 2 cl. 95 11. References to criminal proceedings6 (1) A reference in this Act to a criminal proceeding for a particular7 offence is a reference to a criminal proceeding in which a8 person stands charged with that offence —9 (a) whether or not the person is charged with that offence10 alone or together with another offence (as an alternative11 or additional count); and12 (b) whether or not the person is liable on the charge to be13 found guilty of any other offence.14 (2) If a provision of this Act applies to a criminal proceeding for a15 particular offence it also applies to any related proceeding,16 unless the contrary intention appears.17 Compare:18 Evidence Act 1906 s. 36A and Schedule 7 Part A cl. 119 12. References to civil penalties20 For the purposes of this Act, a person is taken to be liable to a21 civil penalty if, in an Australian or overseas proceeding (other22 than a criminal proceeding), the person would be liable to a23 penalty arising under an Australian law or a law of a foreign24 country.25 Compare:26 Evidence Act 1995 (Commonwealth) Dictionary Part 2 cl. 327 13. References to offspring and parents28 (1) A person of any age is the offspring of another person if the29 other person is the person’s parent.30

Evidence Bill 2025 Preliminary Part 1 Application of Act Division 3 s. 14 page 21 (2) A parent, in relation to a child, includes a person who acts as a1 parent to the child and with whom the child lives as if the child2 were a member of the person’s family.3 Compare:4 Evidence Act 1995 (Commonwealth) Dictionary Part 2 cl. 105 Division 3 — Application of Act6 14. Application of Act7 This Act applies to all proceedings in a court.8 Compare:9 Evidence Act 1906 s. 410 Evidence Act 1995 (Commonwealth) s. 411 15. Extended application of certain provisions12 (1) A provision of this Act applies to a proceeding before a13 WA tribunal or a person acting judicially, whether or not the14 tribunal or person acting judicially is a court, if this Act15 expressly provides that the provision extends to a proceeding16 before a WA tribunal or a person acting judicially.17 (2) If a provision of this Act extends to a proceeding before a WA18 tribunal or a person acting judicially, a reference in the19 provision to a court includes a reference to a WA tribunal, or a20 person acting judicially, as the case requires.21 Examples for this section:22

1. Section 208, which permits evidence to be taken by video link or23 audio link, extends to a proceeding before a WA tribunal.24
2. Sections 328, 332 to 340 and 347, which facilitate proof of certain25 matters in proceedings, extend to a proceeding before a person26 acting judicially.27 Compare:28 Evidence Act 1995 (Commonwealth) s. 529

Evidence Bill 2025 Part 1 Preliminary Division 3 Application of Act s. 16 page 22 16. Electronic processes facilitation1 The Courts and Tribunals (Electronic Processes Facilitation)2 Act 2013 Part 2 applies to this Act.3 Compare:4 Evidence Act 1906 s. 5A5 17. Act binds Crown6 This Act binds the Crown in right of Western Australia and, so7 far as the legislative power of the Parliament permits, the Crown8 in all its other capacities.9 18. Operation of other Acts10 This Act does not affect the operation of the provisions of any11 other Act.12 Compare:13 Evidence Act 1995 (New South Wales) s. 814 19. Application of common law and equity15 (1) This Act does not affect the operation of a principle or rule of16 common law or equity in relation to evidence in a proceeding to17 which this Act applies, except so far as this Act provides18 otherwise expressly or by necessary implication.19 (2) Without limiting subsection (1), this Act does not affect the20 operation of a principle or rule of common law or equity so far21 as it relates to any of the following —22 (a) admission or use of evidence of reasons for a decision of23 a member of a jury, or of the deliberations of a member24 of a jury in relation to the decision, in a proceeding by25 way of appeal from a judgment, decree, order or26 sentence of a court;27 (b) bail;28

Evidence Bill 2025 Preliminary Part 1 Application of Act Division 3 s. 20 page 23 (c) any requirement for admission of evidence in support of1 an alibi.2 Compare:3 Evidence Act 1995 (New South Wales) s. 94 Evidence Act 1995 (Commonwealth) s. 95 20. Parliamentary privilege preserved6 (1) This Act does not affect the law relating to the privileges of any7 Australian Parliament or any House of any Australian8 Parliament.9 (2) In particular, section 25(3) does not affect, and is in addition to,10 the law relating to those privileges.11 Compare:12 Evidence Act 1995 (Commonwealth) s. 1013 21. General powers of court14 (1) The power of a court to control the conduct of a proceeding is15 not affected by this Act, except so far as this Act provides16 otherwise expressly or by necessary implication.17 (2) In particular, the powers of a court with respect of abuse of18 process in a proceeding are not affected.19 Compare:20 Evidence Act 1995 (Commonwealth) s. 1121

Evidence Bill 2025 Part 2 Adducing evidence Division 1 Witnesses s. 22 page 24 Part 2 — Adducing evidence1 Division 1 — Witnesses2 Subdivision 1 — Competence and compellability of witnesses3 22. Competence and compellability4 Except as otherwise provided by this Act —5 (a) every person is competent to give evidence; and6 (b) a person who is competent to give evidence about a fact7 is compellable to give that evidence.8 Compare:9 Evidence Act 1995 (Commonwealth) s. 1210 23. Competence: lack of capacity11 (1) A person is not competent to give evidence about a fact if —12 (a) for any reason (including a disability), the person does13 not have capacity —14 (i) to understand a question about the fact; or15 (ii) to give an answer that can be understood to a16 question about the fact;17 and18 (b) that incapacity cannot be overcome.19 (2) A person who, because of subsection (1), is not competent to20 give evidence about a fact may be competent to give evidence21 about other facts.22 (3) A person who is competent to give evidence about a fact is not23 competent to give sworn evidence about the fact if the person24 does not have the capacity to understand that, in giving25 evidence, the person is under an obligation to give truthful26 evidence.27

Evidence Bill 2025 Adducing evidence Part 2 Witnesses Division 1 s. 24 page 25 (4) A person who is not competent to give sworn evidence about a1 fact may be competent to give unsworn evidence about the fact.2 (5) A person who, because of subsection (3), is not competent to3 give sworn evidence is competent to give unsworn evidence if4 the court has told the person —5 (a) that it is important to tell the truth; and6 (b) that the person may be asked questions that the person7 does not know, or cannot remember, the answer to, and8 that the person should tell the court if this occurs; and9 (c) that the person may be asked questions that suggest10 certain statements are true or untrue and that the person11 should agree with the statements that the person believes12 are true and should feel no pressure to agree with13 statements that the person believes are untrue.14 (6) It is presumed, unless the contrary is proved, that a person is not15 incompetent because of this section.16 (7) Evidence (either sworn or unsworn) that has been given by a17 witness does not become inadmissible merely because, before18 the witness finishes giving evidence, the witness dies or ceases19 to be competent to give the evidence.20 (8) For the purpose of determining a question arising under this21 section, the court may inform itself as it thinks fit, including by22 obtaining information from a person who has relevant23 specialised knowledge based on the person’s training, study or24 experience.25 Compare:26 Evidence Act 1995 (Commonwealth) s. 1327 24. Compellability: reduced capacity28 A person is not compellable to give evidence on a particular29 matter if the court is satisfied that —30 (a) substantial cost or delay would be incurred in ensuring31 that the person has the capacity to understand a question32

Evidence Bill 2025 Part 2 Adducing evidence Division 1 Witnesses s. 25 page 26 about the matter or to give an answer that can be1 understood to a question about the matter; and2 (b) adequate evidence on that matter has been given, or will3 be able to be given, from 1 or more other persons or4 sources.5 Compare:6 Evidence Act 1995 (Commonwealth) s. 147 25. Compellability: foreign sovereign and others8 (1) In this section —9 joint sitting means —10 (a) in relation to the Parliament of the Commonwealth — a11 joint sitting of the members of the Senate and of the12 House of Representatives convened by the13 Governor-General under the Commonwealth14 Constitution section 57 or convened under any Act of15 the Commonwealth; or16 (b) in relation to a bicameral legislature of a State — a joint17 sitting of both Houses of the legislature convened under18 a law of the State.19 (2) The following persons are not compellable to give evidence —20 (a) a foreign sovereign;21 (b) the Head of State of a foreign country.22 (3) A member of a House of an Australian Parliament is not23 compellable to give evidence if the member would, if compelled24 to give evidence, be prevented from attending —25 (a) a sitting of that House or a joint sitting of that26 Parliament; or27

Evidence Bill 2025 Adducing evidence Part 2 Witnesses Division 1 s. 26 page 27 (b) a meeting of a committee of that House or that1 Parliament, being a committee of which the person is a2 member.3 Compare:4 Evidence Act 1995 (Commonwealth) s. 155 26. Competence and compellability: judges and jurors6 (1) A person who is a judge or juror in a proceeding is not7 competent to give evidence in that proceeding.8 (2) However, a juror is competent to give evidence in the9 proceeding about matters affecting the conduct of the10 proceeding.11 (3) A person who is or was a judge in an Australian or overseas12 proceeding is not compellable to give evidence about that13 proceeding unless the court gives leave.14 Compare:15 Evidence Act 1995 (Commonwealth) s. 1616 27. Competence and compellability: accused and co-accused in17 criminal proceeding18 (1) An accused is not competent to give evidence as a witness for19 the prosecution in a criminal proceeding.20 (2) A co-accused is not compellable to give evidence for or against21 an accused in a criminal proceeding, unless the co-accused is22 being tried separately from the accused.23 (3) If a witness is a co-accused who is being tried jointly with the24 accused in a criminal proceeding, the court must satisfy itself (if25 there is a jury, in the jury’s absence) that the witness is aware of26 the effect of subsection (2).27 Compare:28 Evidence Act 1995 (Commonwealth) s. 1729

Evidence Bill 2025 Part 2 Adducing evidence Division 1 Witnesses s. 28 page 28 28. Compellability: spouses and others in criminal proceeding1 (1) In a criminal proceeding, a person who is the spouse, former2 spouse, de facto partner, former de facto partner, parent or3 offspring of an accused may object to being required —4 (a) to give evidence as a witness for the prosecution; or5 (b) to give evidence of a communication between the person6 and the accused as a witness for the prosecution.7 (2) The objection must be made before the person gives the8 evidence or as soon as practicable after the person becomes9 aware of the right to object, whichever is the later.10 (3) If it appears to the court that a person may have a right to make11 an objection under this section, the court must satisfy itself that12 the person is aware of the effect of this section as it may apply13 to the person.14 (4) If there is a jury, the court must hear and determine any15 objection under this section in the absence of the jury.16 (5) A person who makes an objection under this section to giving17 evidence or giving evidence of a communication must not be18 required to give the evidence if the court finds that —19 (a) there is a likelihood that harm would or might be caused20 (whether directly or indirectly) to the person, or to the21 relationship between the person and the accused, if the22 person gives the evidence; and23 (b) the nature and extent of that harm outweighs the24 desirability of having the evidence given.25 (6) Without limiting the matters that may be taken into account by26 the court for the purposes of subsection (5), it must take into27 account the following —28 (a) the nature and gravity of the offence for which the29 accused is being prosecuted;30

Evidence Bill 2025 Adducing evidence Part 2 Witnesses Division 1 s. 29 page 29 (b) the substance and importance of any evidence that the1 person might give and the weight that is likely to be2 attached to it;3 (c) whether any other evidence concerning the matters to4 which the evidence of the person would relate is5 reasonably available to the prosecutor;6 (d) the nature of the relationship between the accused and7 the person;8 (e) whether, in giving the evidence, the person would have9 to disclose a matter that was received by the person in10 confidence from the accused.11 (7) If an objection under this section has been determined, the12 prosecutor must not comment on —13 (a) the objection; or14 (b) the decision of the court in relation to the objection; or15 (c) the failure of the person to give evidence.16 Compare:17 Evidence Act 1995 (Commonwealth) s. 1818 29. Compellability: witnesses in public revenue cases19 (1) This section applies to the following proceedings —20 (a) a proceeding for a contravention of a provision of the21 Duties Act 2008;22 (b) a proceeding for a contravention of a provision of any23 Act relating to the public revenue;24 (c) any proceeding brought by or on behalf of, or against,25 the State under a provision of an Act referred to in26 paragraph (a) or (b).27 (2) A court may require any person to give evidence as a witness in28 a proceeding to which this section applies if the court is satisfied29 that it is in the public interest that the person gives that30 evidence.31

Evidence Bill 2025 Part 2 Adducing evidence Division 1 Witnesses s. 30 page 30 (3) Subsection (2) extends to an accused in a criminal proceeding to1 which this section applies, who is taken to be competent to give2 evidence for the prosecution in the proceeding.3 (4) A person who is required by a court to give evidence under this4 section is compellable to give that evidence (despite any other5 provision of this Subdivision).6 (5) This section does not apply to a proceeding before the7 Magistrates Court or the Children’s Court when constituted8 solely by 1 or more justices of the peace.9 Note for this section:10 Section 191 makes provision for the issue of an immunity certificate to11 a person who is required to give evidence under this section that12 incriminates the person.13 Compare:14 Evidence Act 1906 s. 1215 30. Comment on decision not to give evidence in criminal16 proceeding17 (1) The judge or any party (other than the prosecutor) may18 comment on a decision of the accused to not give evidence in a19 criminal proceeding for an indictable offence.20 (2) However, the comment must not suggest that the accused did21 not give evidence because the accused had, or believed that they22 had, committed the offence concerned.23 (3) The judge or any party (other than the prosecutor) may24 comment on a decision to not give evidence in a criminal25 proceeding for an indictable offence by a person who is —26 (a) the spouse, former spouse, de facto partner or former de27 facto partner of the accused; or28 (b) a parent or the offspring of the accused.29 (4) However, a comment of a kind referred to in subsection (3)30 must not suggest that the spouse, former spouse, de facto31

Evidence Bill 2025 Adducing evidence Part 2 Witnesses Division 1 s. 31 page 31 partner, former de facto partner, parent or offspring decided not1 to give evidence because —2 (a) the accused had committed the offence concerned; or3 (b) the spouse, former spouse, de facto partner, former de4 facto partner, parent or offspring believed that the5 accused had committed the offence concerned.6 (5) If 2 or more persons are being tried jointly for an indictable7 offence and comment is made in the proceeding by any of those8 persons on a decision of any of those persons, or of the spouse,9 former spouse, de facto partner, former de facto partner, parent10 or offspring of any of those persons, to not give evidence, the11 judge may comment on that comment, in addition to12 commenting on the decision to not give evidence.13 Compare:14 Evidence Act 1995 (Commonwealth) s. 2015 Subdivision 2 — Oaths and affirmations16 31. Sworn evidence of witnesses to be on oath or affirmation17 (1) A witness in a proceeding must either take an oath or make an18 affirmation before giving evidence.19 (2) Subsection (1) does not apply to a person who gives unsworn20 evidence because the person is not competent to give sworn21 evidence.22 (3) A person who is called merely to produce a document or thing23 to the court need not take an oath or make an affirmation before24 doing so.25 (4) The witness must take the oath, or make the affirmation, in the26 following form or in a similar form —27 I [insert the opening words of an oath or affirmation in28 accordance with the Oaths, Affidavits and Statutory29 Declarations Act 2005 section 4 or 5] that the evidence I will30

Evidence Bill 2025 Part 2 Adducing evidence Division 1 Witnesses s. 32 page 32 give in this case will be the truth, the whole truth and nothing1 but the truth.2 Compare:3 Evidence Act 1906 s. 974 Evidence Act 1995 (Commonwealth) s. 21 and Schedule5 32. Interpreters to act on oath or affirmation6 (1) A person must either take an oath or make an affirmation before7 acting as an interpreter in a proceeding.8 (2) The person must take the oath, or make the affirmation, in the9 following form or in a similar form —10 I [insert the opening words of an oath or affirmation in11 accordance with the Oaths, Affidavits and Statutory12 Declarations Act 2005 section 4 or 5] that I will well and13 truly translate any evidence that I am asked to translate in this14 case.15 Compare:16 Evidence Act 1906 s. 10217 Evidence Act 1995 (Commonwealth) s. 22 and Schedule18 33. Choice of oath or affirmation19 (1) The court must inform a person who is required to take an oath20 or affirmation under this Act that the person may choose21 between taking an oath or making an affirmation.22 (2) The court may direct the person to make an affirmation if the23 person refuses to choose whether to take an oath or make an24 affirmation.25 Compare:26 Evidence Act 1995 (Commonwealth) s. 2327

Evidence Bill 2025 Adducing evidence Part 2 Witnesses Division 1 s. 34 page 33 34. Application of Oaths, Affidavits and Statutory Declarations1 Act 20052 (1) This Act does not affect the operation of the Oaths, Affidavits3 and Statutory Declarations Act 2005 and, in particular, Part 2 of4 that Act.5 Example for this subsection:6 The Oaths, Affidavits and Statutory Declarations Act 2005 section 5(2)7 provides for circumstances in which a person may be required to make8 an affirmation instead of taking an oath.9 (2) The Oaths, Affidavits and Statutory Declarations Act 200510 section 6 applies to any person, other than a witness who is11 required to take an oath or make an affirmation under this Act,12 in the same way as it applies to a witness.13 Compare:14 Evidence Act 1906 s. 10515 Subdivision 3 — General rules about giving evidence16 35. Court’s control over questioning of witnesses17 A court may make any orders it considers just in relation to the18 following —19 (a) the way in which witnesses are to be questioned;20 (b) the production and use of documents and things in21 connection with the questioning of witnesses;22 (c) the order in which parties may question a witness;23 (d) the presence and behaviour of any person in connection24 with the questioning of witnesses.25 Compare:26 Evidence Act 1995 (Commonwealth) s. 2627

Evidence Bill 2025 Part 2 Adducing evidence Division 1 Witnesses s. 36 page 34 36. Parties may question witnesses1 A party may question any witness, except as provided by this2 Act.3 Compare:4 Evidence Act 1995 (Commonwealth) s. 275 37. Order of examination in chief, cross-examination and6 re-examination7 Unless the court otherwise directs —8 (a) cross-examination of a witness must not take place9 before the examination in chief of the witness; and10 (b) re-examination of a witness must not take place before11 all other parties who wish to do so have cross-examined12 the witness.13 Compare:14 Evidence Act 1995 (Commonwealth) s. 2815 38. Manner and form of questioning witnesses and their16 responses17 (1) A party may question a witness in any way the party thinks fit,18 except as provided by this Part or as directed by the court.19 (2) A court may, on its own initiative or on the application of the20 party who called the witness, direct that the witness give21 evidence wholly or partly in narrative form.22 (3) A direction under subsection (2) may include directions about23 the way in which evidence must be given in that form.24 Compare:25 Evidence Act 1995 (Commonwealth) s. 2926

Evidence Bill 2025 Adducing evidence Part 2 Witnesses Division 1 s. 39 page 35 39. Interpreters1 A witness may give evidence about a fact through an interpreter2 unless the witness can understand and speak the English3 language sufficiently to enable the witness to understand, and to4 give an adequate reply to, questions that may be put about the5 fact.6 Compare:7 Evidence Act 1995 (Commonwealth) s. 308 40. Witnesses who cannot hear adequately or speak adequately9 (1) A witness who cannot hear adequately may be questioned in10 any appropriate way.11 (2) A witness who cannot speak adequately may give evidence by12 any appropriate means.13 (3) The court may give directions concerning either or both of the14 following —15 (a) the way in which a witness may be questioned under16 subsection (1);17 (b) the means by which a witness may give evidence under18 subsection (2).19 (4) This section does not affect the right of a witness to whom this20 section applies to give evidence about a fact through an21 interpreter under section 39.22 Compare:23 Evidence Act 1995 (Commonwealth) s. 3124 41. Attempts to revive memory in court25 (1) A witness must not, in the course of giving evidence, use a26 document to try to revive the witness’s memory about a fact or27 opinion unless the court gives leave.28

Evidence Bill 2025 Part 2 Adducing evidence Division 1 Witnesses s. 42 page 36 (2) Without limiting the matters that the court may take into1 account in deciding whether to give leave, it must take into2 account —3 (a) whether the witness will be able to recall the fact or4 opinion adequately without using the document; and5 (b) whether so much of the document as the witness6 proposes to use is, or is a copy of, a document that —7 (i) was written or made by the witness when the8 events recorded in it were fresh in the witness’s9 memory; or10 (ii) was, at that time, found by the witness to be11 accurate.12 (3) If a witness has, while giving evidence, used a document to try13 to revive the witness’s memory about a fact or opinion, the14 witness may, with the leave of the court, read aloud, as part of15 the witness’s evidence, the part of the document that relates to16 that fact or opinion.17 (4) The court must, on the request of a party, give any directions the18 court thinks fit to ensure that the part of the document that19 relates to the proceeding is produced to that party.20 Compare:21 Evidence Act 1995 (Commonwealth) s. 3222 42. Evidence given by police officers23 (1) Despite section 41, in any criminal proceeding a police officer24 may give evidence in chief for the prosecution by reading or25 being led through a written statement previously made by the26 police officer.27 (2) The evidence cannot be given unless —28 (a) the statement was made by the police officer —29 (i) at the time of or soon after the occurrence of the30 events to which it refers; or31

Evidence Bill 2025 Adducing evidence Part 2 Witnesses Division 1 s. 43 page 37 (ii) wholly or substantially on the basis of notes that1 were made by the police officer, or found by the2 police officer to be accurate, at the time of or3 soon after the occurrence of the events;4 and5 (b) the police officer signed the statement when it was6 made; and7 (c) a copy of the statement was given to the accused or to8 the accused’s legal counsel a reasonable time before the9 hearing of the evidence for the prosecution.10 (3) This section extends to the giving of evidence in chief by a11 person who was formerly a police officer if the person was a12 police officer when the statement was made.13 Compare:14 Evidence Act 1995 (Commonwealth) s. 3315 43. Attempts to revive memory out of court16 (1) A court may, on the request of a party, give such directions as17 are appropriate to ensure that specified documents and things18 used by a witness otherwise than while giving evidence to try to19 revive the witness’s memory are produced to the party for the20 purposes of the proceeding.21 (2) The court may refuse to admit the evidence given by the witness22 so far as it concerns a fact as to which the witness tried to revive23 the witness’s memory if, without reasonable excuse, the24 directions have not been complied with.25 Compare:26 Evidence Act 1995 (Commonwealth) s. 3427 44. Effect of calling for production of documents28 (1) A party cannot be required to tender a document only because29 the party, whether under this Act or otherwise —30 (a) called for the document to be produced to the party; or31

Evidence Bill 2025 Part 2 Adducing evidence Division 1 Witnesses s. 45 page 38 (b) inspected the document when it was produced.1 (2) The party who produces a document called for is not entitled to2 tender it only because the party to whom it was produced, or3 who inspected it, fails to tender it.4 Compare:5 Evidence Act 1995 (Commonwealth) s. 356 45. Person may be examined without subpoena or other process7 (1) A court may order a person to give evidence in a proceeding8 and to produce documents or things even if a subpoena or other9 process requiring the person to attend for that purpose has not10 been duly served on the person if the person —11 (a) is present at the hearing of the proceeding; and12 (b) is compellable to give evidence in the proceeding.13 (2) A court may order a person who is giving evidence in a14 proceeding to produce documents or things even if a subpoena15 or other process requiring the person to produce the document16 or things has not been duly served on the person.17 (3) A person ordered to give evidence or to produce documents or18 things is subject to the same penalties and liabilities as if the19 person had been duly served with a subpoena or other process.20 (4) A party who inspects a document or thing produced to the court21 because of subsection (1) or (2) need not use the document or22 thing in evidence.23 (5) A court that requires a person to give evidence or produce a24 document by order under subsection (1) or (2) must ensure the25 person is given any information about the person’s rights with26 respect to the order that the person would have been given if the27 requirement had been made by subpoena or other process.28

Evidence Bill 2025 Adducing evidence Part 2 Witnesses Division 1 s. 46 page 39 (6) A person may object to a requirement to give evidence or1 produce a document under subsection (1) or (2) on the same2 grounds as the person could have objected if the requirement3 had been made by subpoena or other process.4 Compare:5 Evidence Act 1906 s. 156 Evidence Act 1995 (Commonwealth) s. 367 Subdivision 4 — Examination in chief and re-examination8 46. Leading questions not to be asked9 (1) A leading question must not be put to a witness in examination10 in chief or in re-examination unless —11 (a) the court gives leave; or12 (b) the question relates to a matter introductory to the13 witness’s evidence; or14 (c) no objection is made to the question and (leaving aside15 the party conducting the examination in chief or16 re-examination) each other party to the proceeding is17 represented by legal counsel or the prosecutor; or18 (d) the question relates to a matter that is not in dispute; or19 (e) if the witness has specialised knowledge based on the20 witness’s training, study or experience — the question is21 asked for the purpose of obtaining the witness’s opinion22 about a hypothetical statement of facts, being facts in23 respect of which evidence has been, or is intended to be,24 given.25 (2) Unless the court otherwise directs, subsection (1) does not apply26 in a civil proceeding to a question that relates to an27 investigation, inspection or report that the witness made in the28 course of carrying out public or official duties.29

Evidence Bill 2025 Part 2 Adducing evidence Division 1 Witnesses s. 47 page 40 (3) Subsection (1) does not prevent a court from exercising power1 under rules of court to allow a written statement or report to be2 tendered or treated as evidence in chief of its maker.3 Compare:4 Evidence Act 1995 (Commonwealth) s. 375 47. Unfavourable witnesses6 (1) A party who called a witness may, with the leave of the court,7 question the witness, as though the party were cross-examining8 the witness, about —9 (a) evidence given by the witness that is unfavourable to the10 party; or11 (b) a matter of which the witness may reasonably be12 supposed to have knowledge and about which it appears13 to the court the witness is not, in examination in chief,14 making a genuine attempt to give evidence; or15 (c) whether the witness has, at any time, made a prior16 inconsistent statement.17 (2) Questioning a witness under this section is taken to be18 cross-examination for the purposes of this Act (other than for19 the purposes of re-examination of the witness).20 (3) The party questioning the witness under this section may, with21 the leave of the court, question the witness about matters22 relevant only to the witness’s credibility.23 (4) Questioning under this section must take place before the other24 parties cross-examine the witness unless the court otherwise25 directs.26 (5) If the court so directs, the order in which the parties question the27 witness must be as the court directs.28

Evidence Bill 2025 Adducing evidence Part 2 Witnesses Division 1 s. 48 page 41 (6) Without limiting the matters that the court may take into1 account in determining whether to give leave or a direction2 under this section, it must take into account —3 (a) whether the party gave notice at the earliest opportunity4 of the party’s intention to seek leave; and5 (b) the matters on which, and the extent to which, the6 witness has been, or is likely to be, questioned by7 another party.8 (7) A party is subject to the same liability to be cross-examined9 under this section as any other witness if —10 (a) a proceeding is being conducted in the name of the party11 by or on behalf of an insurer or other person; and12 (b) the party is a witness in the proceeding.13 Compare:14 Evidence Act 1995 (Commonwealth) s. 3815 48. Limits on re-examination16 On re-examination —17 (a) a witness may be questioned about matters arising out of18 evidence given by the witness in cross-examination; and19 (b) other questions must not be put to the witness unless the20 court gives leave.21 Compare:22 Evidence Act 1995 (Commonwealth) s. 3923 Subdivision 5 — Cross-examination24 49. Witness called in error not to be cross-examined25 A party must not cross-examine a witness who has been called26 in error by another party and has not been questioned by that27

Evidence Bill 2025 Part 2 Adducing evidence Division 1 Witnesses s. 50 page 42 other party about a matter relevant to a question to be1 determined in the proceeding.2 Compare:3 Evidence Act 1995 (Commonwealth) s. 404 50. Improper questions5 (1) A court must disallow a question (a disallowable question) put6 to a witness in cross-examination, or inform the witness that it7 need not be answered, if the court is of the opinion that the8 question —9 (a) is misleading or confusing; or10 (b) is unduly annoying, harassing, intimidating, offensive,11 oppressive, humiliating or repetitive; or12 (c) is put to the witness in a manner or tone that is belittling,13 insulting or otherwise inappropriate; or14 (d) has no basis other than a stereotype (for example, a15 stereotype based on sex, gender, sexual orientation, race,16 culture, ethnicity, religious or political conviction, age17 or disability).18 (2) Without limiting the matters that the court may take into19 account for the purposes of subsection (1), it must take into20 account —21 (a) any relevant condition or characteristic of the witness of22 which the court is, or is made, aware, including age,23 education, ethnic and cultural background, sex, gender,24 language background and skills, level of maturity and25 understanding and personality; and26 (b) any disability of which the court is, or is made, aware27 and which the witness has or appears to have; and28 (c) the context in which the question is put, including —29 (i) the nature of the proceeding; and30 (ii) in a criminal proceeding — the nature of the31 offence to which the proceeding relates; and32

Evidence Bill 2025 Adducing evidence Part 2 Witnesses Division 1 s. 51 page 43 (iii) the relationship (if any) between the witness and1 any other party to the proceeding.2 (3) A question is not a disallowable question merely because —3 (a) the question challenges the truthfulness of the witness or4 the consistency or accuracy of any statement made by5 the witness; or6 (b) the question requires the witness to discuss a subject that7 could be considered distasteful to, or private by, the8 witness.9 (4) A party may object to a question put to a witness on the ground10 that it is a disallowable question.11 (5) However, the duty imposed on the court by this section applies12 whether or not an objection is made to a particular question.13 (6) A failure by the court to disallow a question under this section,14 or to inform the witness that it need not be answered, does not15 affect the admissibility in evidence of any answer given by the16 witness in response to the question.17 Compare:18 Evidence Act 1906 s. 2619 Evidence Act 1995 (Commonwealth) s. 4120 51. Leading questions may be asked21 (1) A party may put a leading question to a witness in22 cross-examination unless the court disallows the question or23 directs the witness not to answer it under subsection (2) or (3).24 (2) The court must disallow a leading question, or direct the witness25 not to answer it, if the court is satisfied that the facts concerned26 would be better ascertained if leading questions were not used.27 (3) The court may disallow a leading question or direct the witness28 not to answer it if subsection (2) does not apply.29

Evidence Bill 2025 Part 2 Adducing evidence Division 1 Witnesses s. 52 page 44 (4) Without limiting the matters that the court may take into1 account in deciding whether to disallow a question or direct the2 witness not to answer it under subsection (3), the court must3 take into account the extent to which —4 (a) evidence that has been given by the witness in5 examination in chief is unfavourable to the party who6 called the witness; and7 (b) the witness has an interest consistent with an interest of8 the cross-examiner; and9 (c) the witness is sympathetic to the party conducting the10 cross-examination, either generally or about a particular11 matter; and12 (d) the age or any disability of the witness may affect the13 witness’s answers.14 (5) This section does not limit the court’s power to control leading15 questions.16 Compare:17 Evidence Act 1995 (Commonwealth) s. 4218 52. Prior inconsistent statements of witnesses19 (1) A witness may be cross-examined about a prior inconsistent20 statement alleged to have been made by the witness whether or21 not —22 (a) complete particulars of the statement have been given to23 the witness; or24 (b) a document containing a record of the statement has25 been shown to the witness.26 (2) If, in cross-examination, a witness does not admit that the27 witness has made a prior inconsistent statement, the28 cross-examiner must not adduce evidence of the statement29

Evidence Bill 2025 Adducing evidence Part 2 Witnesses Division 1 s. 53 page 45 otherwise than from the witness unless, in the1 cross-examination, the cross-examiner —2 (a) informed the witness of enough of the circumstances of3 the making of the statement to enable the witness to4 identify the statement; and5 (b) drew the witness’s attention to so much of the statement6 as is inconsistent with the witness’s evidence.7 (3) For the purpose of adducing evidence of the statement, a party8 may reopen the party’s case.9 Compare:10 Evidence Act 1906 s. 2111 Evidence Act 1995 (Commonwealth) s. 4312 53. Previous representations of other persons13 (1) Except as provided by this section, a cross-examiner must not14 question a witness about a previous representation alleged to15 have been made by a person other than the witness.16 (2) A cross-examiner may question a witness about the17 representation and its contents if —18 (a) evidence of the representation has been admitted; or19 (b) the court is satisfied that it will be admitted; or20 (c) the representation is contained in a document and the21 document was used, during examination in chief, to try22 to revive the witness’s memory.23 (3) If subsection (2) does not apply and the representation is24 contained in a document, the document may be used to question25 a witness only as follows —26 (a) the document must be produced to the witness;27 (b) if the document is an audio recording, or any other kind28 of document from which sounds are reproduced — the29 witness must be provided with the means (for example,30 headphones) to listen to the contents of the document31

Evidence Bill 2025 Part 2 Adducing evidence Division 1 Witnesses s. 54 page 46 without other persons present at the cross-examination1 hearing those contents;2 (c) the witness must be asked whether, having examined (or3 heard) the contents of the document, the witness stands4 by the evidence that the witness has given;5 (d) neither the cross-examiner nor the witness is permitted6 to identify the document or disclose any of its contents.7 (4) The document that is used to question the witness may be8 marked for identification.9 Compare:10 Evidence Act 1995 (Commonwealth) s. 4411 54. Production of documents12 (1) This section applies if a party is cross-examining or has13 cross-examined a witness about —14 (a) a prior inconsistent statement alleged to have been made15 by the witness that is recorded in a document; or16 (b) a previous representation alleged to have been made by17 another person that is recorded in a document.18 (2) If the court orders or if another party requires, the19 cross-examining party must produce to the court or to that other20 party —21 (a) the document; or22 (b) any evidence of the contents of the document that is23 available to the party.24 (3) The court may —25 (a) examine a document or evidence that has been produced26 under subsection (2); and27 (b) give directions as to its use; and28 (c) admit it even if it has not been tendered by a party.29

Evidence Bill 2025 Adducing evidence Part 2 Witnesses Division 1 s. 55 page 47 (4) Subsection (3)(c) does not permit the court to admit a document1 or evidence that is not admissible because of Part 3, 4 or 5.2 (5) The mere production of a document to a witness who is being3 cross-examined does not give rise to a requirement that the4 cross-examiner tender the document.5 Compare:6 Evidence Act 1995 (Commonwealth) s. 457 55. Leave to recall witnesses8 (1) A reference in this section to a matter raised by evidence9 adduced by another party includes a reference to an inference10 drawn from, or that the party intends to draw from, that11 evidence.12 (2) The court may give leave to a party to recall a witness to give13 evidence about a matter raised by evidence adduced by another14 party, being a matter on which the witness was not15 cross-examined, if the evidence concerned has been admitted16 and —17 (a) it contradicts evidence about the matter given by the18 witness in examination in chief; or19 (b) the witness could have given evidence about the matter20 in examination in chief.21 Compare:22 Evidence Act 1995 (Commonwealth) s. 4623 56. Cross-examination of witness by unrepresented party24 (1) This section applies —25 (a) in a criminal proceeding — if an accused who is not26 represented by legal counsel wishes to cross-examine a27 witness; or28

Evidence Bill 2025 Part 2 Adducing evidence Division 1 Witnesses s. 56 page 48 (b) in a civil proceeding in which it is alleged that a witness1 is the victim of sexual abuse or sexual harassment — if2 a party who is not represented by legal counsel wishes to3 cross-examine the witness.4 (2) The court may, by order —5 (a) direct that the witness’s evidence on cross-examination6 be given using a video link separation procedure that7 separates the witness from the cross-examiner; or8 (b) if it is not possible to make an order under paragraph (a),9 direct that a screening procedure be used while the10 witness gives evidence on cross-examination so the11 witness cannot see the cross-examiner.12 (3) In addition to, or instead of, making an order under13 subsection (2)(a) or (b), the court may make an order that —14 (a) forbids the unrepresented party from putting questions15 directly to the witness; and16 (b) requires the unrepresented party to instead put the17 questions to the judge or another person approved by the18 court.19 (4) The judge or approved person must repeat each question20 accurately to the witness (other than a question that is21 disallowed).22 (5) The court must have regard to the following matters in deciding23 whether to make an order under this section —24 (a) the nature of the charge or claim to which the25 proceeding relates;26 (b) the nature of the relationship (if any) between the27 witness and any party (including the unrepresented28 party);29 (c) the nature of the relationship (if any) between the30 parties;31

Evidence Bill 2025 Adducing evidence Part 2 Witnesses Division 1 s. 57 page 49 (d) the wishes of the witness;1 (e) the availability of any necessary facilities or equipment.2 (6) An order under this section —3 (a) may include any directions the court thinks fit relating to4 the video link separation procedure or screening5 procedure; and6 (b) may be varied or revoked at any time.7 (7) If a court makes an order under this section in a proceeding8 before a jury, the judge must instruct the jury that —9 (a) the procedure used for the cross-examination is a routine10 practice of the court; and11 (b) they should not draw an inference as to the guilt of an12 accused or the culpability of a party from the use of the13 procedure.14 (8) This section applies despite the Criminal Procedure Act 200415 section 88.16 (9) This section does not affect the operation of Part 7.17 (10) Sections 280 and 281 apply to the use of a video link separation18 procedure or screening procedure under this section in the same19 way as they apply to their use under Part 7 Division 7.20 Note for this section:21 Part 7 Division 10 restricts access to and use of recordings of evidence22 given by witnesses using video link separation procedures or23 screening procedures.24 Compare:25 Evidence Act 1906 s. 25A26 57. No direct cross-examination of certain witnesses by27 unrepresented accused28 (1) In a criminal proceeding, an accused who is not represented by29 legal counsel is not entitled to directly cross-examine —30 (a) a child; or31

Evidence Bill 2025 Part 2 Adducing evidence Division 1 Witnesses s. 57 page 50 (b) if the proceeding is for a sexual offence — the1 complainant; or2 (c) if the proceeding is for a criminal or identified3 organisation offence —4 (i) the complainant; or5 (ii) any witness for the prosecution;6 or7 (d) any other witness of a class prescribed by the8 regulations for the purposes of this section.9 (2) Instead, the accused must put any questions to the witness by10 stating the question to the judge or another person approved by11 the court.12 (3) The judge or approved person must repeat each question13 accurately to the witness (other than a question that is14 disallowed).15 (4) This section does not apply to the cross-examination of a16 witness by an accused if —17 (a) the witness is not a child; and18 (b) the witness consents to being directly cross-examined by19 the accused.20 (5) If the proceeding is before a jury, the judge must instruct the21 jury that —22 (a) the procedure used for the cross-examination is a routine23 practice of the court; and24 (b) they should not draw an inference as to the accused’s25 guilt from the use of the procedure.26 (6) This section does not affect the operation of Part 7.27 Compare:28 Evidence Act 1906 s. 106G29

Evidence Bill 2025 Adducing evidence Part 2 Documents Division 2 s. 58 page 51 Division 2 — Documents1 58. Terms used2 In this Division —3 copy, of a document in question, includes a document that is not4 an exact copy of the document in question but that is identical to5 the document in question in all relevant respects;6 document in question means a document as to the contents of7 which it is sought to adduce evidence.8 Compare:9 Evidence Act 1995 (Commonwealth) s. 4710 59. Proof of contents of documents11 (1) A party may adduce evidence of the contents of a document in12 question by tendering the document in question or by any of the13 following methods —14 (a) adducing evidence of an admission made by another15 party to the proceeding as to the contents of the16 document in question;17 (b) tendering a document that —18 (i) is or purports to be a copy or accurate19 reproduction of the document in question; and20 (ii) has been produced, or purports to have been21 produced, by a device that reproduces the22 contents of documents or has been made by any23 other process or in any other way;24 (c) if the document in question is an article or thing by25 which words are recorded in a way that is capable of26 being reproduced as sound, or in which words are27 recorded in a code (including shorthand writing) —28 tendering a document that is or purports to be a29 transcript of the words;30

Evidence Bill 2025 Part 2 Adducing evidence Division 2 Documents s. 59 page 52 (d) if the document in question is an article or thing on or in1 which information is stored in a way that it cannot be2 used by the court unless a device is used to retrieve,3 produce or collate it — tendering a document that was4 or purports to have been produced by use of the device;5 (e) tendering a document that —6 (i) forms part of the records of or kept by a business7 (whether or not the business is still in existence);8 and9 (ii) is or purports to be a copy of, or an extract from10 or a summary of, the document in question, or is11 or purports to be a copy of the extract or12 summary;13 (f) if the document in question is a public document —14 tendering a document that is or purports to be a copy of15 the document in question and that is or purports to have16 been printed or published —17 (i) by the Government Printer or by the government18 or official printer of the Commonwealth, another19 State or a Territory; or20 (ii) by authority of the Government or administration21 of the State, the Commonwealth, another State, a22 Territory or a foreign country; or23 (iii) by authority of an Australian Parliament, a24 House of an Australian Parliament, a committee25 of a House of an Australian Parliament or a26 committee of an Australian Parliament;27 (g) tendering a document that otherwise accurately28 reproduces the contents of the document in question.29 (2) Subsection (1) applies to a document in question whether the30 document in question is available to the party or not.31

Evidence Bill 2025 Adducing evidence Part 2 Documents Division 2 s. 60 page 53 (3) If the party adduces evidence of the contents of a document1 under subsection (1)(a), the evidence may only be used —2 (a) in respect of the party’s case against the other party who3 made the admission concerned; or4 (b) in respect of the other party’s case against the party who5 adduced the evidence in that way.6 (4) A party may adduce evidence of the contents of a document in7 question that is not available to the party, or the existence and8 contents of which are not in issue in the proceeding, by —9 (a) tendering a document that is a copy of, or an extract10 from or summary of, the document in question; or11 (b) adducing from a witness evidence of the contents of the12 document in question.13 Compare:14 Evidence Act 1906 s. 73A15 Evidence Act 1995 (Commonwealth) s. 4816 60. Documents in foreign countries17 Section 59(1)(b), (c), (d), (e) or (f) does not apply to a document18 that is in a foreign country unless —19 (a) the party who adduces evidence of the contents of the20 document in question has, not less than 28 days (or any21 other period prescribed by the regulations or by rules of22 court for the purposes of this section) before the day on23 which the evidence is adduced, served on each other24 party a copy of the document proposed to be tendered;25 or26 (b) the court directs that it applies.27 Compare:28 Evidence Act 1995 (Commonwealth) s. 4929

Evidence Bill 2025 Part 2 Adducing evidence Division 3 Other ways of adducing evidence s. 61 page 54 61. Original document rule abolished1 The principles and rules of common law that relate to the means2 of proving the contents of documents are abolished.3 Compare:4 Evidence Act 1995 (Commonwealth) s. 515 62. Copies of dutiable instruments6 (1) In this section —7 duties Act means the Stamp Act 1921 or the Duties Act 2008;8 stamped means stamped or duty endorsed under a duties Act.9 (2) If a document (the original document) is chargeable with duty10 or required to be stamped, a copy of the original document is11 not admissible in a civil proceeding unless the court is satisfied12 that —13 (a) the copy shows or establishes, or it is otherwise14 established, that the original document was stamped as15 required by the duties Act concerned; or16 (b) the provisions of the duties Act concerned that enable17 the admission, or use, in a civil proceeding of a18 document that is not stamped as required by that Act are19 complied with as if the copy were the original20 document.21 (3) This section extends to a civil proceeding before a person acting22 judicially.23 Compare:24 Evidence Act 1906 s. 73U25 Division 3 — Other ways of adducing evidence26 63. Adducing of other evidence not affected27 This Act (other than this Division) does not affect the operation28 of any Australian law or rule of practice so far as it permits29

Evidence Bill 2025 Adducing evidence Part 2 Other ways of adducing evidence Division 3 s. 64 page 55 evidence to be adduced in a way other than by witnesses giving1 evidence or documents being tendered in evidence.2 Compare:3 Evidence Act 1995 (Commonwealth) s. 524 64. Demonstrations, experiments and inspections5 (1) A court may, on application, order that a demonstration,6 experiment or inspection be held in or outside the courtroom.7 (2) A court must not make an order unless the court is satisfied8 that —9 (a) the parties will be given a reasonable opportunity to be10 present; and11 (b) the judge and, if there is a jury, the jury will be present.12 (3) Without limiting the matters that the court may take into13 account in deciding whether to make an order, the court must14 take into account the following —15 (a) whether the parties will be present;16 (b) whether the demonstration, experiment or inspection17 will, in the court’s opinion, assist the court in resolving18 issues of fact or understanding the evidence;19 (c) the danger that the demonstration, experiment or20 inspection might —21 (i) be unfairly prejudicial; or22 (ii) be misleading or confusing; or23 (iii) cause or result in undue waste of time;24 (d) in the case of a demonstration — the extent to which the25 demonstration will properly reproduce the conduct or26 event to be demonstrated;27 (e) in the case of an inspection — the extent to which the28 place or thing to be inspected has materially altered.29

Evidence Bill 2025 Part 2 Adducing evidence Division 3 Other ways of adducing evidence s. 65 page 56 (4) The court (including, if there is a jury, the jury) must not1 conduct an experiment in the course of its deliberations.2 (5) This section does not apply in relation to the inspection of an3 exhibit by the court or, if there is a jury, by the jury.4 Compare:5 Evidence Act 1995 (Commonwealth) s. 536 65. Demonstrations, experiments and inspections to be evidence7 A court (including, if there is a jury, the jury) may draw any8 reasonable inference from what it sees, hears or otherwise9 notices during a demonstration, experiment or inspection.10 Compare:11 Evidence Act 1995 (Commonwealth) s. 5412 66. Charts, summaries and explanatory documents13 (1) Evidence may be given in the form of a chart, summary or other14 explanatory document if it appears to the court that the15 document would be likely to aid comprehension of other16 evidence that has been given or is to be given.17 (2) This section does not affect the operation of section 67.18 Compare:19 Evidence Act 1906 s. 27A20 67. Court may require voluminous or complex evidence to be21 given in another form22 (1) If a court is satisfied that any oral or documentary evidence that23 a party proposes to adduce is so complex or voluminous that it24 would be difficult to assess or comprehend, the court may direct25 the party to adduce the evidence wholly or partly in another26 form, including in the form of a chart, summary or other27 explanatory document.28

Evidence Bill 2025 Adducing evidence Part 2 Other ways of adducing evidence Division 3 s. 67 page 57 (2) The court may make a direction under this section on its own1 initiative or on the application of a party.2 (3) The direction may include directions about the form in which3 evidence must be given.4 (4) The direction must also contain directions to ensure that each5 other party —6 (a) is served with —7 (i) copies of the evidence in the form in which the8 evidence must be given; and9 (ii) the name and address of the person who prepared10 the evidence in that form;11 and12 (b) is given a reasonable opportunity to examine or copy the13 evidence.14 (5) The opinion rule does not apply to evidence adduced in15 accordance with a direction under this section.16 Compare:17 Evidence Act 1906 s. 27B18 Evidence Act 1995 (Commonwealth) s. 5019

Evidence Bill 2025 Part 3 Admissibility of evidence Division 1 Relevance s. 68 page 58 Part 3 — Admissibility of evidence1 Division 1 — Relevance2 68. Relevant evidence3 (1) The evidence that is relevant in a proceeding is evidence that, if4 it were accepted, could rationally affect (directly or indirectly)5 the assessment of the probability of the existence of a fact in6 issue in the proceeding.7 (2) In particular, evidence cannot be considered irrelevant only8 because it relates only to —9 (a) the credibility of a witness; or10 (b) the admissibility of other evidence; or11 (c) a failure to adduce evidence.12 Compare:13 Evidence Act 1995 (Commonwealth) s. 5514 69. Relevant evidence to be admissible15 (1) Except as otherwise provided by this Act, evidence that is16 relevant in a proceeding is admissible in the proceeding.17 (2) Evidence that is not relevant in the proceeding is not admissible.18 Compare:19 Evidence Act 1995 (Commonwealth) s. 5620 70. Provisional relevance21 (1) If the determination of the question whether evidence adduced22 by a party is relevant depends on the court making another23 finding (including a finding that the evidence is what the party24 claims it to be), the court may find that the evidence is25 relevant —26 (a) if it is reasonably open to make that finding; or27

Evidence Bill 2025 Admissibility of evidence Part 3 Hearsay Division 2 s. 71 page 59 (b) subject to further evidence being admitted at a later1 stage of the proceeding that will make it reasonably2 open to make that finding.3 (2) Without limiting subsection (1), if the relevance of evidence of4 an act done by a person depends on the court making a finding5 that the person and 1 or more other persons had, or were acting6 in furtherance of, a common purpose (whether to effect an7 unlawful conspiracy or otherwise), the court may use the8 evidence itself in determining whether the common purpose9 existed.10 Compare:11 Evidence Act 1995 (Commonwealth) s. 5712 71. Inferences as to relevance13 (1) If a question arises as to the relevance of a document or thing,14 the court may examine it and may draw any reasonable15 inference from it, including an inference as to its authenticity or16 identity.17 (2) Subsection (1) does not limit the matters from which inferences18 may properly be drawn.19 Compare:20 Evidence Act 1995 (Commonwealth) s. 5821 Division 2 — Hearsay22 Subdivision 1 — Hearsay rule23 72. Hearsay rule: exclusion of hearsay evidence24 (1) Evidence of a previous representation made by a person is not25 admissible to prove the existence of a fact that it can reasonably26 be supposed that the person intended to assert by the27 representation (an asserted fact).28

Evidence Bill 2025 Part 3 Admissibility of evidence Division 2 Hearsay s. 73 page 60 (2) For the purposes of determining under subsection (1) whether it1 can reasonably be supposed that the person intended to assert a2 particular fact by the representation, the court may have regard3 to the circumstances in which the representation was made.4 Note for this subsection:5 This subsection relates to the decision of the Supreme Court of New6 South Wales in R. v Hannes (2000) 158 FLR 359.7 (3) Subsection (1) does not apply to evidence of a representation8 contained in a certificate or other document given or made9 under regulations made under an Act (other than this Act) to the10 extent to which the regulations under that Act provide that the11 certificate or other document has evidentiary effect.12 Examples for this section:13

1. D is the accused in a sexual offence trial. W has made a statement to14 the police that X told W that X had seen D leave a nightclub with the15 complainant shortly before the sexual offence is alleged to have16 occurred. Unless an exception to the hearsay rule applies, evidence of17 what X told W cannot be given at the trial.18
2. P had told W that the handbrake on W’s car did not work. Unless an19 exception to the hearsay rule applies, evidence of that statement20 cannot be given by P, W or anyone else to prove that the handbrake21 was defective.22
3. W had bought an electronic device and written down its serial number23 on a document. Unless an exception to the hearsay rule applies, the24 document is inadmissible to prove that an electronic device later found25 in D’s possession was the electronic device bought by W.26 Compare:27 Evidence Act 1995 (Commonwealth) s. 5928
4. Exception: evidence relevant for non-hearsay purpose29 (1) The hearsay rule does not apply to evidence of a previous30 representation that is admitted because it is relevant for a31 purpose other than proof of an asserted fact.32

Evidence Bill 2025 Admissibility of evidence Part 3 Hearsay Division 2 s. 74 page 61 (2) This section applies whether or not the person who made the1 representation had personal knowledge of the asserted fact (as2 defined in section 75(2)).3 Note for this subsection:4 This subsection relates to the decision of the High Court of Australia in5 Lee v The Queen (1998) 195 CLR 594.6 (3) However, this section does not apply in a criminal proceeding to7 evidence of an admission.8 Compare:9 Evidence Act 1995 (Commonwealth) s. 6010 74. Exceptions to hearsay rule dependent on competency11 (1) This Division does not enable use of a previous representation12 to prove the existence of an asserted fact if, when the13 representation was made, the person who made it was not14 competent to give either sworn or unsworn evidence about the15 fact.16 (2) This section does not apply to a contemporaneous17 representation made by a person about the person’s health,18 feelings, sensations, intention, knowledge or state of mind.19 (3) For the purposes of this section, it is presumed, unless the20 contrary is proved, that when the representation was made the21 person who made it was competent to give evidence about the22 asserted fact.23 Compare:24 Evidence Act 1995 (Commonwealth) s. 6125 Subdivision 2 — First-hand hearsay26 75. Restriction to first-hand hearsay27 (1) A reference in this Subdivision (other than in subsection (2)) to28 a previous representation is a reference to a previous29 representation that was made by a person who had personal30 knowledge of an asserted fact.31

Evidence Bill 2025 Part 3 Admissibility of evidence Division 2 Hearsay s. 76 page 62 (2) A person has personal knowledge of the asserted fact if the1 person’s knowledge of the fact was, or might reasonably be2 supposed to have been, based on something that the person saw,3 heard or otherwise perceived, other than a previous4 representation made by another person about the fact.5 (3) For the purposes of section 80, a person has personal6 knowledge of the asserted fact if it is a fact about the person’s7 health, feelings, sensations, intention, knowledge or state of8 mind at the time the representation referred to in that section9 was made.10 Compare:11 Evidence Act 1995 (Commonwealth) s. 6212 76. Exception: civil proceeding if maker not available13 (1) This section applies to a civil proceeding if a person who made14 a previous representation is not available to give evidence about15 an asserted fact.16 (2) The hearsay rule does not apply to —17 (a) evidence of the representation that is given by a person18 who saw, heard or otherwise perceived the19 representation being made; or20 (b) a document so far as it contains the representation, or21 another representation to which it is reasonably22 necessary to refer in order to understand the23 representation.24 Compare:25 Evidence Act 1995 (Commonwealth) s. 6326 77. Exception: civil proceeding if maker available27 (1) This section applies to a civil proceeding if a person who made28 a previous representation is available to give evidence about an29 asserted fact.30

Evidence Bill 2025 Admissibility of evidence Part 3 Hearsay Division 2 s. 78 page 63 (2) The hearsay rule does not apply to the following if it would1 cause undue expense or undue delay, or would not be2 reasonably practicable, to call the person who made the3 representation to give evidence —4 (a) evidence of the representation that is given by a person5 who saw, heard or otherwise perceived the6 representation being made;7 (b) a document so far as it contains the representation, or8 another representation to which it is reasonably9 necessary to refer in order to understand the10 representation.11 (3) If the person who made the representation has been or is to be12 called to give evidence, the hearsay rule does not apply to13 evidence of the representation that is given by —14 (a) that person; or15 (b) a person who saw, heard or otherwise perceived the16 representation being made.17 (4) A document containing a representation to which subsection (3)18 applies must not be tendered before the conclusion of the19 examination in chief of the person who made the representation20 unless the court gives leave.21 Compare:22 Evidence Act 1995 (Commonwealth) s. 6423 78. Exception: criminal proceeding if maker not available24 (1) This section applies to a criminal proceeding if a person who25 made a previous representation is not available to give evidence26 about an asserted fact.27 (2) The hearsay rule does not apply to evidence of a previous28 representation that is given by a person who saw, heard or29

Evidence Bill 2025 Part 3 Admissibility of evidence Division 2 Hearsay s. 78 page 64 otherwise perceived the representation being made if the1 representation —2 (a) was made under a duty to make that representation or to3 make representations of that kind; or4 (b) was made when or shortly after the asserted fact5 occurred and in circumstances that make it unlikely that6 the representation is a fabrication; or7 (c) was made in circumstances that make it highly probable8 that the representation is reliable; or9 (d) was —10 (i) against the interests of the person who made it at11 the time it was made; and12 (ii) made in circumstances that make it likely that the13 representation is reliable.14 (3) The hearsay rule does not apply to evidence of a previous15 representation made in the course of giving evidence in an16 Australian or overseas proceeding if, in that proceeding, the17 accused in the proceeding to which this section is being18 applied —19 (a) cross-examined the person who made the representation20 about it; or21 (b) had a reasonable opportunity to cross-examine the22 person who made the representation about it.23 (4) If there is more than 1 accused in the criminal proceeding,24 evidence of a previous representation that is admitted into25 evidence in the criminal proceeding because of subsection (3)26 cannot be used against an accused who did not cross-examine,27 and did not have a reasonable opportunity to cross-examine, the28 person about the representation.29 (5) For the purposes of subsections (3) and (4), an accused is taken30 to have had a reasonable opportunity to cross-examine a person31 if the accused was not present at a time when the32

Evidence Bill 2025 Admissibility of evidence Part 3 Hearsay Division 2 s. 78 page 65 cross-examination of a person might have been conducted,1 but —2 (a) could reasonably have been present at that time; and3 (b) if present, could have cross-examined the person.4 (6) Evidence of the making of a representation to which5 subsection (3) applies may be adduced by producing a6 transcript, or a recording, of the representation that is7 authenticated by —8 (a) the person to whom, or the court or other body to which,9 the representation was made; or10 (b) if applicable, the registrar or other proper officer of the11 court or other body to which the representation was12 made; or13 (c) the person or body responsible for producing the14 transcript or recording.15 (7) Without limiting subsection (2)(d), a representation is taken for16 the purposes of that paragraph to be against the interests of the17 person who made it if it tends —18 (a) to damage the person’s reputation; or19 (b) to show that the person has committed an offence for20 which the person has not been convicted; or21 (c) to show that the person is liable in an action for22 damages.23 (8) The hearsay rule does not apply to —24 (a) evidence of a previous representation adduced by an25 accused if the evidence is given by a person who saw,26 heard or otherwise perceived the representation being27 made; or28 (b) a document tendered as evidence by an accused so far as29 it contains a previous representation, or another30 representation to which it is reasonably necessary to31 refer in order to understand the representation.32

Evidence Bill 2025 Part 3 Admissibility of evidence Division 2 Hearsay s. 79 page 66 (9) If evidence of a previous representation about a matter has been1 adduced by an accused and has been admitted, the hearsay rule2 does not apply to evidence of another representation about the3 matter that —4 (a) is adduced by another party; and5 (b) is given by a person who saw, heard or otherwise6 perceived the other representation being made.7 Compare:8 Evidence Act 1995 (Commonwealth) s. 659 79. Exception: criminal proceeding if maker available10 (1) This section applies to a criminal proceeding if a person who11 made a previous representation is available to give evidence12 about an asserted fact.13 (2) The hearsay rule does not apply to evidence of the14 representation that is given by the person who made the15 representation, or by a person who saw, heard or otherwise16 perceived the representation being made, if —17 (a) the person who made the representation has been or is to18 be called to give evidence; and19 (b) when the representation was made, the occurrence of the20 asserted fact was fresh in the memory of the person who21 made the representation.22 (3) In determining whether the occurrence of the asserted fact was23 fresh in the memory of a person, the court may take into account24 all matters that it considers are relevant to the question,25 including —26 (a) the nature of the event concerned; and27 (b) the age and health of the person; and28

Evidence Bill 2025 Admissibility of evidence Part 3 Hearsay Division 2 s. 80 page 67 (c) the period of time between the occurrence of the1 asserted fact and the making of the representation.2 Note for this subsection:3 This subsection relates to the decision of the High Court of Australia in4 Graham v The Queen (1998) 195 CLR 606.5 (4) If a representation was made for the purpose of indicating the6 evidence that the person who made it would be able to give in7 an Australian or overseas proceeding, subsection (2) does not8 apply to evidence adduced by the prosecutor of the9 representation unless the representation concerns the identity of10 a person, place or thing.11 (5) A document containing a representation to which subsection (2)12 applies must not be tendered before the conclusion of the13 examination in chief of the person who made the representation14 unless the court gives leave.15 Compare:16 Evidence Act 1995 (Commonwealth) s. 6617 80. Exception: particular contemporaneous statements about18 person19 The hearsay rule does not apply to evidence of a previous20 representation made by a person if the representation was a21 contemporaneous representation about the person’s health,22 feelings, sensations, intention, knowledge or state of mind.23 Compare:24 Evidence Act 1995 (Commonwealth) s. 66A25 81. Notice to be given26 (1) An exception to the hearsay rule that is specified in27 section 76(2), 77(2) or 78(2), (3) or (8) does not apply to28 evidence adduced by a party unless that party has given29 reasonable notice in writing to each other party of the party’s30 intention to adduce the evidence.31

Evidence Bill 2025 Part 3 Admissibility of evidence Division 2 Hearsay s. 82 page 68 (2) A notice given under subsection (1) must be given in1 accordance with any regulations or rules of court made for the2 purposes of this section.3 (3) The notice must state —4 (a) the particular provisions of this Subdivision on which5 the party intends to rely in arguing that the hearsay rule6 does not apply to the evidence; and7 (b) if section 77(2) is a provision on which the party intends8 to rely — the grounds, specified in that provision, on9 which the party intends to rely.10 (4) Despite subsection (1), if notice has not been given, the court11 may, on the application of a party, direct that 1 or more of the12 exceptions to the hearsay rule referred to in subsection (1)13 applies despite the party’s failure to give notice.14 (5) The direction may provide that, in relation to specified15 evidence, the exception or exceptions concerned apply with the16 modifications the court specifies.17 (6) Subsection (5) does not limit the court’s power to impose18 conditions on the direction.19 Compare:20 Evidence Act 1995 (Commonwealth) s. 6721 82. Objections to tender of hearsay evidence in civil proceeding22 if maker available23 (1) In a civil proceeding, a party may, not later than 21 days after24 notice under section 81(1) has been given, object to the tender25 of the evidence, or of a specified part of the evidence, if the26 notice discloses that it is not intended to call the person who27 made the previous representation concerned because —28 (a) it would cause undue expense or undue delay; or29 (b) it would not be reasonably practicable.30

Evidence Bill 2025 Admissibility of evidence Part 3 Hearsay Division 2 s. 83 page 69 (2) The objection must be made by giving to each other party a1 written notice setting out the grounds on which the objection is2 made.3 (3) The court may, on the application of a party, determine the4 objection at or before the hearing.5 (4) If the objection is unreasonable, the court may order that, in any6 event, the party objecting must bear the costs (ascertained on a7 solicitor and client basis) incurred by another party —8 (a) in relation to the objection; and9 (b) in calling the person who made the representation to10 give evidence.11 Compare:12 Evidence Act 1995 (Commonwealth) s. 6813 Subdivision 3 — Other exceptions to hearsay rule14 83. Exception: business records15 (1) This section applies to a document that contains a previous16 representation made or recorded in the document in the course17 of, or for the purposes of, a business and that either —18 (a) is or forms part of the records belonging to or kept by a19 person, body or organisation in the course of, or for the20 purposes of, the business; or21 (b) at any time was or formed part of a record referred to in22 paragraph (a).23 (2) The hearsay rule does not apply to the document (so far as it24 contains the representation) if the representation was made —25 (a) by a person who had or might reasonably be supposed to26 have had personal knowledge of the asserted fact; or27 (b) on the basis of information directly or indirectly28 supplied by a person who had or might reasonably be29 supposed to have had personal knowledge of the30 asserted fact.31

Evidence Bill 2025 Part 3 Admissibility of evidence Division 2 Hearsay s. 84 page 70 (3) Subsection (2) does not apply if the representation —1 (a) was prepared or obtained for the purpose of conducting,2 or for or in contemplation of or in connection with, an3 Australian or overseas proceeding; or4 (b) was made in connection with an investigation relating or5 leading to a criminal proceeding.6 (4) If the occurrence of an event of a particular kind is in question7 and, in the course of a business, a system has been followed of8 making and keeping a record of the occurrence of all events of9 that kind, the hearsay rule does not apply to evidence that tends10 to prove that there is no record kept, in accordance with that11 system, of the occurrence of the event.12 (5) For the purposes of this section, a person is taken to have had13 personal knowledge of a fact if the person’s knowledge of the14 fact was, or might reasonably be supposed to have been, based15 on what the person saw, heard or otherwise perceived (other16 than a previous representation made by a person about the fact).17 Compare:18 Evidence Act 1995 (Commonwealth) s. 6919 84. Exception: content of tags, labels and writing20 The hearsay rule does not apply to a tag or label attached to, or21 writing placed on, an object (including a document) if the tag or22 label or writing may reasonably be supposed to have been23 attached or placed —24 (a) in the course of a business; or25 (b) for the purpose of describing or stating the identity,26 nature, ownership, destination, origin or weight of the27 object, or of the contents (if any) of the object.28 Compare:29 Evidence Act 1995 (Commonwealth) s. 7030

Evidence Bill 2025 Admissibility of evidence Part 3 Hearsay Division 2 s. 85 page 71 85. Exception: electronic communication1 The hearsay rule does not apply to a representation contained in2 a document recording an electronic communication so far as the3 representation is a representation as to —4 (a) the identity of the person from whom or on whose5 behalf the communication was sent; or6 (b) the date on which or the time at which the7 communication was sent; or8 (c) the destination of the communication or the identity of9 the person to whom the communication was addressed.10 Compare:11 Evidence Act 1995 (Commonwealth) s. 7112 86. Exception: Aboriginal and Torres Strait Islander traditional13 laws and customs14 The hearsay rule does not apply to evidence of a representation15 about the existence or non-existence, or the content, of the16 traditional laws and customs of an Aboriginal or Torres Strait17 Islander group.18 Compare:19 Evidence Act 1995 (Commonwealth) s. 7220 87. Exception: reputation as to relationships and age21 (1) The hearsay rule does not apply to evidence of reputation22 concerning —23 (a) whether a person was, at a particular time or at any time,24 a married person; or25 (b) whether 2 people cohabiting at a particular time were26 married to each other at that time; or27 (c) a person’s age; or28 (d) family history or a family relationship.29

Evidence Bill 2025 Part 3 Admissibility of evidence Division 2 Hearsay s. 88 page 72 (2) In a criminal proceeding, subsection (1) does not apply to1 evidence adduced by an accused unless —2 (a) it tends to contradict evidence of a kind referred to in3 subsection (1) that has been admitted; or4 (b) the accused has given reasonable notice in writing to5 each other party of the accused’s intention to adduce the6 evidence.7 (3) In a criminal proceeding, subsection (1) does not apply to8 evidence adduced by the prosecutor unless it tends to contradict9 evidence of a kind referred to in subsection (1) that has been10 admitted.11 Compare:12 Evidence Act 1995 (Commonwealth) s. 7313 88. Exception: reputation of public or general rights14 (1) The hearsay rule does not apply to evidence of reputation15 concerning the existence, nature or extent of a public or general16 right.17 (2) In a criminal proceeding, subsection (1) does not apply to18 evidence adduced by the prosecutor unless it tends to contradict19 evidence of a kind referred to in subsection (1) that has been20 admitted.21 Compare:22 Evidence Act 1995 (Commonwealth) s. 7423 89. Exception: interlocutory proceedings24 In an interlocutory proceeding, the hearsay rule does not apply25 to evidence if the party who adduces it also adduces evidence of26 its source.27 Compare:28 Evidence Act 1995 (Commonwealth) s. 7529

Evidence Bill 2025 Admissibility of evidence Part 3 Opinion Division 3 s. 90 page 73 Division 3 — Opinion1 90. Opinion rule2 (1) Evidence of an opinion is not admissible to prove the existence3 of a fact about the existence of which the opinion was4 expressed.5 (2) Subsection (1) does not apply to evidence of an opinion6 contained in a certificate or other document given or made7 under regulations made under an Act (other than this Act) to the8 extent to which the regulations provide that the certificate or9 other document has evidentiary effect.10 Examples for this section:11

1. P sues D, P’s doctor, for the negligent performance of a surgical12 operation. Unless an exception to the opinion rule applies, P’s13 neighbour, W, who had the same operation, cannot give evidence of14 W’s opinion that D had not performed the operation as well as W’s15 operation.16
2. P thinks electrical work that D, an electrician, has done for P is17 unsatisfactory. Unless an exception to the opinion rule applies, P18 cannot give evidence of P’s opinion that D does not have the19 necessary skills to do electrical work.20 Compare:21 Evidence Act 1995 (Commonwealth) s. 7622
3. Exception: evidence relevant otherwise than as opinion23 evidence24 The opinion rule does not apply to evidence of an opinion that is25 admitted because it is relevant for a purpose other than proof of26 the existence of a fact about the existence of which the opinion27 was expressed.28 Compare:29 Evidence Act 1995 (Commonwealth) s. 7730

Evidence Bill 2025 Part 3 Admissibility of evidence Division 3 Opinion s. 92 page 74 92. Exception: lay opinions1 The opinion rule does not apply to evidence of an opinion2 expressed by a person if —3 (a) the opinion is based on what the person saw, heard or4 otherwise perceived about a matter or event; and5 (b) evidence of the opinion is necessary to obtain an6 adequate account or understanding of the person’s7 perception of the matter or event.8 Compare:9 Evidence Act 1995 (Commonwealth) s. 7810 93. Exception: Aboriginal and Torres Strait Islander traditional11 laws and customs12 The opinion rule does not apply to evidence of an opinion13 expressed by a member of an Aboriginal or Torres Strait14 Islander group about the existence or non-existence, or the15 content, of the traditional laws and customs of the group.16 Compare:17 Evidence Act 1995 (Commonwealth) s. 78A18 94. Exception: opinions based on specialised knowledge19 (1) If a person has specialised knowledge based on the person’s20 training, study or experience, the opinion rule does not apply to21 evidence of an opinion of that person that is wholly or22 substantially based on that knowledge.23 (2) Without limiting subsection (1) —24 (a) a reference in that subsection to specialised knowledge25 includes a reference to specialised knowledge of child26 development and child behaviour (including specialised27 knowledge of the impact of sexual abuse on children28 and their development and behaviour during and29 following the abuse); and30

Evidence Bill 2025 Admissibility of evidence Part 3 Admissions Division 4 s. 95 page 75 (b) a reference in that subsection to an opinion of a person1 includes, if the person has specialised knowledge of the2 kind referred to in paragraph (a), a reference to an3 opinion relating to either or both of the following —4 (i) the development and behaviour of children5 generally;6 (ii) the development and behaviour of children who7 have been victims of sexual abuse.8 Compare:9 Evidence Act 1995 (Commonwealth) s. 7910 95. Ultimate issue and common knowledge rules abolished11 Evidence of an opinion is not inadmissible only because it is12 about —13 (a) a fact in issue or an ultimate issue; or14 (b) a matter of common knowledge.15 Compare:16 Evidence Act 1995 (Commonwealth) s. 8017 Division 4 — Admissions18 96. Hearsay and opinion rules: exception for admissions and19 related representations20 (1) The hearsay rule and the opinion rule do not apply to evidence21 of an admission.22 (2) The hearsay rule and the opinion rule do not apply to evidence23 of a previous representation —24 (a) that was made in relation to an admission at the time the25 admission was made, or shortly before or after that time;26 and27