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