Evidence Bill 2025
Part 3 Admissibility of evidence
Division 4 Admissions
s. 97
page 76
(b) to which it is reasonably necessary to refer in order to1
understand the admission.2
Example for this section:3
D admits to W, D’s friend, that D committed a sexual offence against V.4
In D’s trial for the sexual offence, the prosecution may lead evidence5
from W —6
(a) that D made the admission to W as proof of the truth of that7
admission; and8
(b) that W formed the opinion that D was sane when D made the9
admission.10
Compare:11
Evidence Act 1995 (Commonwealth) s. 8112
97. Exclusion of evidence of admissions that is not first-hand13
Section 96 does not prevent the hearsay rule applying to14
evidence of an admission unless —15
(a) it is given by a person who saw, heard or otherwise16
perceived the admission being made; or17
(b) it is a document in which the admission is made.18
Compare:19
Evidence Act 1995 (Commonwealth) s. 8220
98. Exclusion of evidence of admissions as against third parties21
(1) Section 96 does not prevent the hearsay rule or the opinion rule22
applying to evidence of an admission in respect of the case of a23
party (a third party) to the proceeding concerned who did not24
make the admission or adduce the evidence.25
(2) The evidence may be used in respect of the case of a third party26
if the third party consents.27
(3) Consent cannot be given in respect of part only of the evidence.28
Compare:29
Evidence Act 1995 (Commonwealth) s. 8330
Evidence Bill 2025
Admissibility of evidence Part 3
Admissions Division 4
s. 99
page 77
99. Exclusion of admissions influenced by violence and certain1
other conduct2
(1) Evidence of an admission is not admissible unless the court is3
satisfied that the admission, and the making of the admission,4
were not influenced by —5
(a) violent, oppressive, inhuman or degrading conduct,6
whether towards the person who made the admission or7
towards another person; or8
(b) a threat of conduct of that kind.9
(2) Subsection (1) only applies if the party against whom evidence10
of the admission is adduced has raised in the proceeding an11
issue about whether the admission or its making were12
influenced as referred to in subsection (1).13
Compare:14
Evidence Act 1995 (Commonwealth) s. 8415
100. Criminal proceedings: reliability of admissions by accused16
(1) This section applies only in a criminal proceeding and only to17
evidence of an admission made by an accused —18
(a) to, or in the presence of, an investigating official who at19
that time was performing functions in connection with20
the investigation of the commission, or possible21
commission, of an offence; or22
(b) as a result of an act of another person who was, and who23
the accused knew or reasonably believed to be, capable24
of influencing the decision whether a prosecution of the25
accused should be brought or should be continued.26
Note for this subsection:27
This subsection relates to the decision of the High Court of Australia in28
Kelly v The Queen (2004) 218 CLR 216.29
(2) Evidence of the admission is not admissible unless the30
circumstances in which the admission was made make it31
unlikely that the truth of the admission was adversely affected.32
Evidence Bill 2025
Part 3 Admissibility of evidence
Division 4 Admissions
s. 101
page 78
(3) Without limiting the matters that the court may take into1
account for the purposes of subsection (2), it must take into2
account —3
(a) any relevant condition or characteristic of the person4
who made the admission, including age, personality,5
race, culture, ethnicity, religion and education and any6
disability that the person has or appears to have; and7
(b) if the admission was made in response to questioning —8
(i) the nature of the questions and the manner in9
which they were put; and10
(ii) the nature of any threat, promise or other11
inducement made to the person questioned.12
Compare:13
Evidence Act 1995 (Commonwealth) s. 8514
101. Criminal proceedings: exclusion of records of oral15
questioning16
(1) This section applies only in a criminal proceeding and only if an17
oral admission was made by an accused to an investigating18
official in response to a question put or a representation made19
by the official.20
(2) A document prepared by or on behalf of the official is not21
admissible to prove the contents of the question, representation22
or response unless the accused has acknowledged that the23
document is a true record of the question, representation or24
response.25
(3) The acknowledgment must be made by signing, initialling or26
otherwise marking the document.27
(4) This section does not apply to the following documents —28
(a) an audio recording, or a transcript of that type of29
recording;30
Evidence Bill 2025
Admissibility of evidence Part 3
Admissions Division 4
s. 102
page 79
(b) a recording of visual images and sounds, or a transcript1
of that type of recording.2
Compare:3
Evidence Act 1995 (Commonwealth) s. 864
102. Admissions made with authority5
(1) For the purpose of determining whether a previous6
representation made by a person is also taken to be an admission7
by a party, the court must admit the representation if it is8
reasonably open to find that —9
(a) when the representation was made, the person had10
authority to make statements on behalf of the party in11
relation to the matter with respect to which the12
representation was made; or13
(b) when the representation was made, the person was an14
employee of the party, or had authority otherwise to act15
for the party, and the representation related to a matter16
within the scope of the person’s employment or17
authority; or18
(c) the representation was made by the person in19
furtherance of a common purpose (whether lawful or20
not) that the person had with the party or 1 or more21
persons, including the party.22
(2) For the purposes of this section, the hearsay rule does not apply23
to a previous representation made by a person that tends to24
prove —25
(a) that the person had authority to make statements on26
behalf of another person in relation to a matter; or27
(b) that the person was an employee of another person or28
had authority otherwise to act for another person; or29
(c) the scope of the person’s employment or authority.30
Compare:31
Evidence Act 1995 (Commonwealth) s. 8732
Evidence Bill 2025
Part 3 Admissibility of evidence
Division 4 Admissions
s. 103
page 80
103. Proof of admissions1
For the purpose of determining under another provision of this2
Division whether evidence of an admission is admissible, the3
court must find that a particular person made the admission if it4
is reasonably open to find that the person made the admission.5
Compare:6
Evidence Act 1995 (Commonwealth) s. 887
104. Criminal proceedings: evidence of silence8
(1) In this section —9
inference includes —10
(a) an inference of consciousness of guilt; or11
(b) an inference relevant to a party’s credibility.12
(2) In a criminal proceeding, an inference unfavourable to a party13
must not be drawn from evidence that the party or another14
person did not —15
(a) answer 1 or more questions put to the party or other16
person by an investigating official who, at that time, was17
performing functions in connection with the18
investigation of the commission, or possible19
commission, of an offence; or20
(b) respond to a representation made to the party or other21
person by an investigating official who, at that time, was22
performing functions in connection with the23
investigation of the commission, or possible24
commission, of an offence.25
(3) Evidence that the party or person did not answer the question or26
respond to the representation is not admissible if it can only be27
used to draw the unfavourable inference.28
(4) Subsection (2) does not prevent use of the evidence to prove29
that the party or other person failed or refused to answer the30
Evidence Bill 2025
Admissibility of evidence Part 3
Evidence of judgments and convictions Division 5
s. 105
page 81
question or to respond to the representation if the failure or1
refusal is a fact in issue in the proceeding.2
Compare:3
Evidence Act 1995 (Commonwealth) s. 894
105. Criminal proceedings: discretion to exclude admissions5
In a criminal proceeding, the court may refuse to admit evidence6
of an admission, or refuse to admit the evidence to prove a7
particular fact, if —8
(a) the evidence is adduced by the prosecution; and9
(b) having regard to the circumstances in which the10
admission was made, it would be unfair to an accused to11
use the evidence.12
Compare:13
Evidence Act 1995 (Commonwealth) s. 9014
106. Criminal investigation rules about admissions not affected15
This Division does not affect the operation of the Criminal16
Investigation Act 2006 Part 11.17
Division 5 — Evidence of judgments and convictions18
107. Exclusion of evidence of judgments and convictions19
(1) Evidence of the decision, or of a finding of fact, in an Australian20
or overseas proceeding is not admissible to prove the existence21
of a fact that was in issue in that proceeding.22
(2) Evidence that, under this Division, is not admissible to prove23
the existence of a fact must not be used to prove that fact even if24
it is relevant for another purpose.25
Compare:26
Evidence Act 1995 (Commonwealth) s. 9127
Evidence Bill 2025
Part 3 Admissibility of evidence
Division 5 Evidence of judgments and convictions
s. 108
page 82
108. Exceptions1
(1) Section 107(1) does not prevent the admission or use of2
evidence of the grant of probate, letters of administration or a3
similar order of a court to prove —4
(a) the death, or date of death, of a person; or5
(b) the due execution of a testamentary document.6
(2) In a criminal proceeding, section 107(1) does not prevent the7
admission or use of evidence of a person’s conviction of an8
offence to prove the material facts comprising the elements of9
the offence of which the person was convicted.10
(3) Subsection (2) does not apply to a conviction for an offence —11
(a) in respect of which a review or appeal (however12
described) has been instituted but not finally13
determined; or14
(b) that has been quashed or set aside.15
(4) In a civil proceeding, section 107(1) does not prevent the16
admission or use of evidence that a party, or a person through or17
under whom a party claims, has been convicted of an offence.18
(5) Subsection (4) does not apply to a conviction for an offence —19
(a) in respect of which a review or appeal (however20
described) has been instituted but not finally21
determined; or22
(b) that has been quashed or set aside; or23
(c) in respect of which a pardon has been given.24
(6) The hearsay rule and the opinion rule do not apply to evidence25
of a kind referred to in this section.26
Compare:27
Evidence Act 1995 (Commonwealth) s. 9228
Evidence Bill 2025
Admissibility of evidence Part 3
Tendency and coincidence Division 6
s. 109
page 83
109. Savings1
This Division does not affect the operation of —2
(a) a law that relates to the admissibility or effect of3
evidence of a conviction tendered in a proceeding4
(including a criminal proceeding) for defamation; or5
(b) a judgment in rem; or6
(c) the law relating to res judicata or issue estoppel.7
Compare:8
Evidence Act 1995 (Commonwealth) s. 939
Division 6 — Tendency and coincidence10
110. Application of Division11
(1) This Division does not apply to evidence that relates only to the12
credibility of a witness.13
(2) This Division does not apply to any part of a proceeding that14
relates to bail or sentencing.15
(3) This Division does not apply to evidence of the character,16
reputation or conduct of a person, or a tendency that a person17
has or had, if that character, reputation, conduct or tendency is a18
fact in issue.19
(4) Any principle or rule of common law or equity that prevents or20
restricts the admissibility of evidence about propensity or21
similar fact evidence in a proceeding is not relevant when22
applying this Division to tendency evidence or coincidence23
evidence about a party.24
(5) In determining the probative value of tendency evidence or25
coincidence evidence for the purposes of26
section 113(1)(b), 114(5), 115(1)(b) or 118(2), it is not open to27
Evidence Bill 2025
Part 3 Admissibility of evidence
Division 6 Tendency and coincidence
s. 111
page 84
the court to have regard to the possibility that the evidence may1
be the result of collusion, concoction or contamination.2
Compare:3
Evidence Act 1995 (New South Wales) s. 944
111. Use of evidence for other purposes5
(1) Evidence that under this Division is not admissible to prove a6
particular matter must not be used to prove that matter even if it7
is relevant for another purpose.8
(2) Evidence that under this Division cannot be used against a party9
to prove a particular matter must not be used against the party to10
prove that matter even if it is relevant for another purpose.11
Compare:12
Evidence Act 1995 (New South Wales) s. 9513
112. Failure to act14
A reference in this Division to doing an act includes a reference15
to failing to do that act.16
Compare:17
Evidence Act 1995 (New South Wales) s. 9618
113. Tendency rule19
(1) Evidence of the character, reputation or conduct of a person, or20
a tendency that a person has or had, is not admissible to prove21
that a person has or had a tendency (whether because of the22
person’s character or otherwise) to act in a particular way, or to23
have a particular state of mind unless —24
(a) the party seeking to adduce the evidence gave25
reasonable notice in writing to each other party of the26
party’s intention to adduce the evidence; and27
Evidence Bill 2025
Admissibility of evidence Part 3
Tendency and coincidence Division 6
s. 114
page 85
(b) the court thinks that the evidence will, either by itself or1
having regard to other evidence adduced or to be2
adduced by the party seeking to adduce the evidence,3
have significant probative value.4
(2) Subsection (1)(a) does not apply if —5
(a) the evidence is adduced in accordance with any6
directions made by the court under section 117(1); or7
(b) the evidence is adduced to explain or contradict8
tendency evidence adduced by another party.9
Note for this section:10
The tendency rule is subject to specific exceptions concerning11
character of and expert opinion about accused persons (see12
sections 129 and 130). Other provisions of this Act, or of other laws,13
may operate as further exceptions.14
Compare:15
Evidence Act 1995 (New South Wales) s. 9716
114. Admissibility of tendency evidence in proceeding involving17
child sexual offence18
(1) In this section —19
child sexual offence —20
(a) means each of the following (however described and21
regardless of when it occurred) —22
(i) a sexual offence against, or arising under, a law23
of this State involving a complainant who was a24
child at the time of the offence;25
(ii) an offence against, or arising under, a law of this26
State involving an unlawful sexual act with, or27
directed towards, a person who was a child at the28
time of the offence;29
Evidence Bill 2025
Part 3 Admissibility of evidence
Division 6 Tendency and coincidence
s. 114
page 86
(iii) an offence of attempting to commit, conspiring1
with another person to commit, inciting another2
person to commit or attempting to procure3
another person to commit, an offence referred to4
in subparagraph (i) or (ii);5
(iv) an offence against, or arising under, a law of the6
Commonwealth, another State, a Territory or a7
foreign country that, if committed in this State,8
would have been an offence of a kind referred to9
in subparagraph (i), (ii) or (iii);10
but11
(b) does not include conduct of a person that has ceased to12
be an offence against, or arising under, a law of this13
State since the time when the person engaged in the14
conduct.15
(2) This section applies to a criminal proceeding in which the16
commission by the accused of an act that constitutes, or may17
constitute, a child sexual offence is a fact in issue.18
(3) It is presumed that the following tendency evidence about the19
accused will have significant probative value for the purposes of20
sections 113(1)(b) and 118(2) —21
(a) tendency evidence about the sexual interest the accused22
has or had in children (even if the accused has not acted23
on the interest);24
(b) tendency evidence about the accused acting on a sexual25
interest the accused has or had in children.26
(4) Subsection (3) applies whether or not the sexual interest or act27
to which the tendency evidence relates was directed at a28
complainant in the proceeding, any other child or children29
generally.30
(5) Despite subsection (3), the court may determine that the31
tendency evidence does not have significant probative value if it32
is satisfied that there are sufficient grounds to do so.33