Evidence Bill 2025
Witness assistance measures Part 7
Access to and use of protected recordings Division 10
s. 304
page 233
(2) A person has authority for the purposes of subsection (1) only if1
the person is —2
(a) a police officer acting in the course of the police3
officer’s official duties; or4
(b) the Director of Public Prosecutions or a person acting5
under the authority of the Director of Public6
Prosecutions; or7
(c) legal counsel acting for or representing the State; or8
(d) a public official acting in good faith for a purpose9
connected with the person’s duties as a public official;10
or11
(e) acting as authorised by a court; or12
(f) acting as authorised by this Act or regulations made for13
the purposes of this paragraph; or14
(g) acting as authorised by the Criminal Investigation15
Act 2006.16
Compare:17
Evidence Act 1906 s. 106MA18
304. Playing protected recordings19
(1) A person must not, without authority, play any protected20
recording.21
Penalty for this subsection: imprisonment for 2 years or a fine of22
$24 000.23
(2) A person has authority for the purposes of subsection (1) only if24
the person —25
(a) plays the protected recording for a purpose connected26
with the conduct or defence of a proceeding to which the27
protected recording relates; or28
(b) is a police officer acting in the course of the police29
officer’s official duties; or30
Evidence Bill 2025
Part 7 Witness assistance measures
Division 10 Access to and use of protected recordings
s. 305
page 234
(c) is a public official acting in good faith for purposes1
connected with the person’s duties as a public official;2
or3
(d) is acting as authorised by a court; or4
(e) is acting as authorised by this Act or regulations made5
for the purposes of this paragraph.6
(3) This section does not authorise —7
(a) an accused to play any protected recording relating to8
the proceeding in which the person is accused; or9
(b) any other person to play, in the presence of the accused,10
the protected recording for a purpose connected with the11
conduct or defence of the proceeding unless the person,12
or an employee or agent of the person, is present with13
the accused for the entire period during which the14
recording is played.15
(4) Subsection (3) does not apply to a protected recording that is a16
recording of evidence given by the accused if it is that17
accused —18
(a) who plays the recording; or19
(b) in whose presence the recording is played.20
Compare:21
Evidence Act 1906 s. 106MA22
305. Protected recordings may be played for instructional23
purposes24
(1) A protected recording may be played to any of the following25
persons for the purposes of instruction —26
(a) a police officer or police trainee;27
(b) an officer of the Commission (as defined in the28
Corruption, Crime and Misconduct Act 200329
section 3(1));30
(c) a lawyer or a person studying to be a lawyer;31
Evidence Bill 2025
Witness assistance measures Part 7
Access to and use of protected recordings Division 10
s. 306
page 235
(d) a person prescribed by the regulations for the purposes1
of this section.2
(2) A protected recording may be played under subsection (1) only3
if —4
(a) all proceedings in relation to the subject matter of the5
protected recording have concluded; and6
(b) all reasonable measures are taken to prevent the7
identification of the person being recorded, interviewed8
or giving evidence in the protected recording; and9
(c) any further requirements specified in the regulations10
relating to the use or playing of the protected recording11
for instructional purposes are satisfied.12
306. Publication of protected recordings prohibited13
(1) A person must not publish any protected recording except in14
accordance with the approval of the Supreme Court.15
Penalty for this subsection: imprisonment for 2 years or a fine of16
$100 000.17
(2) The Supreme Court may approve the publication of a protected18
recording only if satisfied that exceptional circumstances justify19
approval being given.20
Compare:21
Evidence Act 1906 s. 106MB22
307. Playing or tendering altered versions of protected23
recordings in proceedings24
(1) A party proposing to play or tender any protected recording in a25
proceeding must notify the court if the protected recording has26
been altered from the original version of the protected27
recording.28
(2) A party proposing to tender a transcript of a protected recording29
in a proceeding must notify the court if the transcript has been30
altered from the original version of the protected recording.31
Evidence Bill 2025
Part 7 Witness assistance measures
Division 11 Miscellaneous
s. 308
page 236
(3) A protected recording, or a transcript of a protected recording,1
that has been altered from the original version of the protected2
recording may be played or tendered to the court only with the3
leave of the court.4
Compare:5
Evidence Act 1906 s. 106HB6
308. Court may give directions about protected recordings7
(1) The Supreme Court, the Family Court, the District Court, the8
Magistrates Court, the Children’s Court or any court that admits9
a protected recording as evidence or directs the use of a special10
procedure for giving evidence may give directions as to the11
possession, supply, copying, editing, destruction or playing of a12
protected recording.13
(2) A court must not authorise a person to be in possession of a14
protected recording if the protected recording relates to an15
offence of which the person is accused.16
(3) Subsection (2) continues to apply after any prosecution of the17
offence has been completed or terminated.18
(4) Subsection (2) does not apply to the possession by an accused of19
a protected recording of evidence given by that accused.20
Division 11 — Miscellaneous21
309. Hearing to consider orders that should be made22
(1) In any proceeding in which it is likely that the court will be23
required or asked to do any of the following in relation to a24
witness, the party who proposes to call the witness concerned25
must apply for a directions hearing for the purpose of having the26
matter dealt with before the proceeding —27
(a) decide whether the witness must be treated as a special28
witness or should be declared to be a special witness;29
Evidence Bill 2025
Witness assistance measures Part 7
Miscellaneous Division 11
s. 310
page 237
(b) make any order or direction in relation to an out-of-court1
representation, recorded statement or recorded interview2
of the witness;3
(c) make any order or direction, or give any approval, in4
relation to a special procedure for giving evidence, as it5
affects the witness;6
(d) hold a ground rules hearing in relation to the witness;7
(e) request a witness assessment in relation to the witness.8
(2) Rules of court may provide for directions hearings under this9
section.10
Compare:11
Evidence Act 1906 s. 106S12
310. Disclosure of protected communications in connection with13
support measures14
(1) In this section —15
Department means the department of the Public Service16
principally assisting in the administration of this Act;17
Justice document means a document that records any report,18
opinion, advice, recommendation or correspondence relating to19
a sexual offence complainant made by an officer or employee20
of, or person engaged by, the Department in connection with a21
service offered to witnesses in criminal proceedings or victims22
of crime.23
(2) The prosecutor in a criminal proceeding may, without the leave24
of the court, tender a Justice document in support of the25
prosecutor’s submission at any of the following hearings, even26
if the document records a protected communication —27
(a) a hearing to determine whether the sexual offence28
complainant should be treated as or declared to be a29
special witness;30
Evidence Bill 2025
Part 7 Witness assistance measures
Division 11 Miscellaneous
s. 311
page 238
(b) a hearing to determine whether the court should make1
any order or direction in relation to a special procedure2
for giving evidence as it affects the sexual offence3
complainant.4
(3) Section 166 does not prevent the disclosure or admission of a5
Justice document for the purpose of a hearing mentioned in6
subsection (2).7
(4) If a Justice document that records a protected communication is8
admitted for the purpose of a hearing mentioned in9
subsection (2), section 174 applies in the same way as it applies10
to the disclosure of a document under Part 4 Division 3.11
Example for this subsection:12
The court may make an order suppressing the publication of all or part13
of the Justice document to protect the safety and welfare of the sexual14
offence complainant.15
(5) This section does not affect the application of Part 4 Division 316
to the disclosure or admission of a Justice document for the17
purpose of any other part of the criminal proceeding.18
311. Dispensing with special procedure for giving evidence19
(1) A court may, by order, dispense with the use of a special20
procedure for giving evidence if the court is satisfied that the21
witness is able to give evidence, and consents to giving22
evidence, without using the special procedure for giving23
evidence.24
(2) The court must not make the order unless the court is satisfied25
of the following matters —26
(a) that the witness understands their decision and its effect;27
(b) that the decision was made freely and voluntarily.28
(3) In deciding whether to make the order, the court may inform29
itself as it thinks fit.30
Evidence Bill 2025
Witness assistance measures Part 7
Miscellaneous Division 11
s. 311
page 239
(4) A witness must not be questioned in a proceeding about a1
decision to give evidence without using a special procedure for2
giving evidence except by or with the approval of the court for3
the purposes of satisfying this section.4
(5) In a criminal proceeding before a jury, the judge, the prosecutor,5
the accused or the accused’s legal counsel must not comment to6
the jury about a decision by a witness to give evidence without7
using a special procedure for giving evidence.8
(6) Subsection (5) does not prevent a judge from directing the jury9
about a contravention of that subsection by the prosecutor, the10
accused or the accused’s legal counsel if it is in the interests of11
justice to do so.12
Compare:13
Evidence Act 1906 s. 106R(8)14
Evidence Bill 2025
Part 8 Proof
Division 1 Standard of proof
s. 312
page 240
Part 8 — Proof1
Division 1 — Standard of proof2
312. Civil proceeding: standard of proof3
(1) In a civil proceeding, the court must find the case of a party4
proved if it is satisfied that the case has been proved on the5
balance of probabilities.6
(2) Without limiting the matters that the court may take into7
account in deciding whether it is satisfied, it must take into8
account —9
(a) the nature of the cause of action or defence; and10
(b) the nature of the subject matter of the proceeding; and11
(c) the gravity of the matters alleged.12
Compare:13
Evidence Act 1995 (Commonwealth) s. 14014
313. Criminal proceeding: standard of proof15
(1) In a criminal proceeding, the court must not find the case of the16
prosecution proved unless it is satisfied that it has been proved17
beyond reasonable doubt.18
(2) In a criminal proceeding, the court must find the case of an19
accused proved if it is satisfied that the case has been proved on20
the balance of probabilities.21
Compare:22
Evidence Act 1995 (Commonwealth) s. 14123
314. Admissibility of evidence: standard of proof24
(1) Except as otherwise provided by this Act, in any proceeding the25
court must find that the facts necessary for deciding any of the26
Evidence Bill 2025
Proof Part 8
Corroboration Division 2
s. 315
page 241
following questions have been proved if it is satisfied that they1
have been proved on the balance of probabilities —2
(a) a question whether evidence should be admitted or not3
admitted, whether in the exercise of a discretion or not;4
(b) any other question arising under this Act.5
(2) In determining whether it is satisfied, the matters that the court6
must take into account include —7
(a) the importance of the evidence in the proceeding; and8
(b) the gravity of the matters alleged in relation to the9
question.10
Compare:11
Evidence Act 1995 (Commonwealth) s. 14212
Division 2 — Corroboration13
315. Corroboration not required14
(1) It is not necessary that evidence on which a party relies be15
corroborated.16
(2) Despite any rule, whether of law or practice, to the contrary, if17
there is a jury, the judge must not —18
(a) warn the jury that it is dangerous to act on19
uncorroborated evidence or give a warning to the same20
or similar effect; or21
(b) direct the jury regarding the absence of corroboration.22
Compare:23
Evidence Act 1906 s. 106D24
Evidence Act 1995 (Commonwealth) s. 16425
Evidence Bill 2025
Part 8 Proof
Division 3 Warnings and information
s. 316
page 242
Division 3 — Warnings and information1
316. Term used: delay2
In this Division —3
delay, in making a complaint, includes —4
(a) a failure to pursue or to continue to pursue a complaint5
in a timely manner; and6
(b) a failure to make a complaint at the first opportunity, or7
on a subsequent opportunity, to complain.8
317. Unreliable evidence9
(1) This section applies to evidence of a kind that may be10
unreliable, including the following kinds of evidence —11
(a) evidence in relation to which Part 3 Division 2 or 412
applies;13
(b) identification evidence;14
(c) evidence given in a criminal proceeding by a witness,15
being a witness who might reasonably be supposed to16
have been criminally concerned in the events giving rise17
to the proceeding;18
(d) evidence given in a criminal proceeding by a witness19
who is a prison informer;20
(e) oral evidence of questioning by an investigating official21
of an accused that is questioning recorded in writing that22
has not been signed, or otherwise acknowledged in23
writing, by the accused;24
(f) in a proceeding against the estate of a deceased25
person — evidence adduced by or on behalf of a person26
seeking relief in the proceeding that is evidence about a27
matter about which the deceased person could have28
given evidence if the deceased person were alive.29
Evidence Bill 2025
Proof Part 8
Warnings and information Division 3
s. 318
page 243
(2) In a proceeding before a jury, the judge must do the following if1
a party requests it —2
(a) warn the jury that the evidence may be unreliable;3
(b) inform the jury of matters that may cause it to be4
unreliable;5
(c) warn the jury of the need for caution in determining6
whether to accept the evidence and the weight to be7
given to it.8
(3) The judge need not comply with subsection (2) if satisfied there9
is good reason for not complying.10
(4) It is not necessary that a particular form of words be used in11
giving the warning or information.12
(5) This section does not affect any other power of the judge to give13
a warning to, or to inform, the jury.14
Compare:15
Evidence Act 1995 (Commonwealth) s. 16516
318. Warnings about evidence given by children17
(1) A judge in any proceeding in which evidence is given by a child18
before a jury must not do any of the following —19
(a) warn the jury, or suggest to the jury, that children as a20
class are unreliable witnesses;21
(b) warn the jury, or suggest to the jury, that the evidence of22
children as a class is inherently less credible or reliable,23
or requires more careful scrutiny, than the evidence of24
adults;25
(c) give a warning, or make a suggestion, to the jury about26
the unreliability of the particular child’s evidence solely27
on account of the age of the child.28
Evidence Bill 2025
Part 8 Proof
Division 3 Warnings and information
s. 319
page 244
(2) Subsection (1) does not prevent a judge from —1
(a) informing the jury that the evidence of the particular2
child may be unreliable and the reasons why it may be3
unreliable; and4
(b) warning or informing the jury of the need for caution in5
determining whether to accept the evidence of the6
particular child and the weight to be given to it.7
(3) A judge may exercise the power conferred by subsection (2)8
only if —9
(a) a party requests it; and10
(b) the party satisfies the court that there are circumstances11
(other than solely the age of the child) particular to the12
child that affect the reliability of the child’s evidence13
and that warrant the giving of a warning or the14
information.15
(4) This section does not affect any other power of a judge to give a16
warning to, or to inform, the jury.17
Compare:18
Evidence Act 1995 (Commonwealth) s. 165A19
319. Warnings about delays causing forensic disadvantage20
(1) A rule of law or practice that requires a judge in a criminal21
proceeding to give a warning of a kind known as a Longman22
warning is abolished.23
Note for this subsection:24
See Longman v The Queen (1989) 168 CLR 79.25
(2) If, on application by an accused in a criminal proceeding before26
a jury, the court is satisfied that the accused has suffered a27
significant forensic disadvantage because of delay, the judge28
must —29
(a) explain to the jury the nature of the forensic30
disadvantage; and31