225Application of amendment to section 19

225 Application of amendment to section 19 (1) Section 19, as amended by the amending Act, applies only in relation to a proceeding in which the hearing commences after the (2) Section 19, as in force immediately before the commencement, continues to apply in relation to a proceeding in which the hearing commenced before the commencement. Evidence (National Uniform Legislation) Act 2011 137 Note for Schedule The Commonwealth Act, NSW Act and Victorian Act contain a schedule, which is not required for the Territory because of the provisions in the Oaths, Affidavits and Declarations Act 2010. Evidence (National Uniform Legislation) Act 2011 138 section 3 Part 1 Definitions admission means a previous representation that is: (a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding); and (b) adverse to the person's interest in the outcome of the asserted fact, see section 59. associated defendant, in relation to a defendant in a criminal proceeding, means a person against whom a prosecution has been instituted, but not yet completed or terminated, for: (a) an offence that arose in relation to the same events as those in relation to which the offence for which the defendant is being prosecuted arose; or (b) an offence that relates to or is connected with the offence for which the defendant is being prosecuted. Australia includes the external Territories. Australian court means: (a) the High Court; or (b) a court exercising federal jurisdiction; or (c) a court of a State or Territory; or (d) a judge, justice or arbitrator under an Australian law; or (e) a person or body authorised by an Australian law, or by consent of parties, to hear, receive and examine evidence; or (f) a person or body that, in exercising a function under an Australian law, is required to apply the laws of evidence. Evidence (National Uniform Legislation) Act 2011 139 Australian law means a law of the Commonwealth, a State or Note for definition Australian law See clause 9 of Part 2 of this Dictionary for the meaning of a law of the Commonwealth, a State, a Territory or a foreign country. That clause also further defines Australian law. Australian lawyer, see section 5(a) of the Legal Profession Act 2006. Australian legal practitioner, see section 6(a) of the Legal Australian or overseas proceeding means a proceeding (however described) in an Australian court or a foreign court. Australian Parliament means the Parliament of the Commonwealth or a State or the Legislative Assembly of a Australian practising certificate, see section 4 of the Legal Australian-registered foreign lawyer, see section 4 of the Legal Australian Statistician means the Australian Statistician referred to in section 5(2) of the Australian Bureau of Statistics Act 1975 (Cth), and includes any person to whom the powers of the Australian Statistician under section 12 of the Census and Statistics Act 1905 (Cth) have been delegated. business, see clause 1 of Part 2 of this Dictionary. case, of a party, means the facts in issue in respect of which the party bears the legal burden of proof. child means a child of any age, and includes the meaning given in clause 10(1) of Part 2 of this Dictionary. civil penalty, see clause 3 of Part 2 of this Dictionary. civil proceeding means a proceeding other than a criminal client, see section 117. coincidence evidence means evidence of a kind referred to in section 98(1) that a party seeks to have adduced for the purpose referred to in that subsection. Evidence (National Uniform Legislation) Act 2011 140 coincidence rule means the provision contained in section 98(1). Commonwealth Act, see section 2A. Commonwealth owned body corporate means a body corporate that, were the Commonwealth a body corporate, would, for the purposes of the Corporations Act 2001, be: (a) a wholly-owned subsidiary of the Commonwealth; or (b) a wholly-owned subsidiary of another body corporate that is, under this definition, a Commonwealth owned body corporate because of the application of paragraph (a) (including the application of that paragraph together with another application or other applications of this paragraph). Commonwealth record means a record made by: (a) a Department within the meaning of the Public Service Act 1999 (Cth); or (b) the Parliament of the Commonwealth, a House of the Parliament, a committee of a House of the Parliament or a committee of the Parliament; or (c) a person or body, other than a Legislative Assembly, holding office, or exercising power, under or because of the Constitution or a law of the Commonwealth; or (d) a body or organisation other than a Legislative Assembly, whether incorporated or unincorporated, established for a public purpose: (i) by or under a law of the Commonwealth or of a Territory (other than the Australian Capital Territory, this Territory or Norfolk Island); or (ii) by the Governor-General; or (iii) by a Minister of the Commonwealth; or (e) any other body or organisation that is a Commonwealth owned body corporate; and kept or maintained by a person, body or organisation of a kind referred to in paragraph (a), (b), (c), (d) or (e), but does not include a record made by a person or body holding office, or exercising power, under or because of the Constitution or a law of the Commonwealth if the record was not made in connection with holding the office concerned, or exercising the power concerned. Evidence (National Uniform Legislation) Act 2011 141 confidential communication, see section 117. confidential document, see section 117. court means a Territory court. Notes for definition court 1 Territory court is defined in this Dictionary. 2 The Commonwealth Act does not include this definition. credibility, of a person who has made a representation that has been admitted in evidence, means the credibility of the representation, and includes the person's ability to observe or remember facts and events about which the person made the representation. credibility, of a witness, means the credibility of any part or all of the evidence of the witness, and includes the witness's ability to observe or remember facts and events about which the witness has given, is giving or is to give evidence. credibility evidence, see section 101A. credibility rule means the provision contained in section 102. criminal proceeding means a prosecution for an offence and includes: (a) a proceeding for the committal of a person for trial or sentence for an offence; and (b) a proceeding relating to bail; but does not include a prosecution for an offence that is a prescribed taxation offence within the meaning of Part III of the Taxation Administration Act 1953 (Cth). cross-examination, see clause 2(2) of Part 2 of this Dictionary. cross-examiner means a party who is cross-examining a witness. de facto partner Note for definition de facto partner This definition is not needed because of the definition of de facto partner in section 19A(3) of the Interpretation Act 1978. document means any record of information, and includes: (a) anything on which there is writing; or Evidence (National Uniform Legislation) Act 2011 142 (b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; or (c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else; or (d) a map, plan, drawing or photograph. Note for definition document See also clause 8 of Part 2 of this Dictionary on the meaning of document. electronic communication, see section 5 of the Electronic Transactions (Northern Territory) Act 2000. examination in chief, see clause 2(1) of Part 2 of this Dictionary. exercise, of a function, includes performance of a duty. fax, in relation to a document, means a copy of the document that has been reproduced by facsimile telegraphy. federal court Note for definition federal court The Commonwealth Act includes a definition of this term. foreign court means any court (including any person or body authorised to take or receive evidence, whether on behalf of a court or otherwise and whether or not the person or body is empowered to require the answering of questions or the production of documents) of a foreign country or a part of such a country. function includes power, authority and duty. government or official gazette includes the Government Gazette. Note for definition government or official gazette The definition of this term in the Commonwealth Act and NSW Act differs from this definition. Governor of a State includes any person for the time being administering the Government of the State. Note for definition Governor of a State The Commonwealth Act does not include a definition of Governor of a State. The definition is covered by section 16B of the Acts Interpretation Act 1901 (Cth). Evidence (National Uniform Legislation) Act 2011 143 Governor-General means Governor-General of the Commonwealth and includes any person for the time being administering the Government of the Commonwealth. Note for definition Governor-General The Commonwealth Act does not include a definition of Governor-General. The definition is covered by section 16A of the Acts Interpretation Act 1901 (Cth). hearsay rule means the provision contained in section 59(1). identification evidence means evidence that is: (a) an assertion by a person to the effect that a defendant was, or resembles (visually, aurally or otherwise) a person who was, present at or near a place where: (i) the offence for which the defendant is being prosecuted was committed; or (ii) an act connected to that offence was done; at or about the time at which the offence was committed or the act was done, being an assertion that is based wholly or partly on what the person making the assertion saw, heard or otherwise perceived at that place and time; or (b) a report (whether oral or in writing) of such an assertion. investigating official means: (a) a police officer (other than a police officer who is engaged in covert investigations under the orders of a superior); or (b) a person appointed by or under an Australian law (other than a person who is engaged in covert investigations under the orders of a superior) whose functions include functions in respect of the prevention or investigation of offences. joint sitting means: (a) in relation to the Parliament of the Commonwealth – a joint sitting of the members of the Senate and of the House of Representatives convened by the Governor-General under section 57 of the Commonwealth Constitution or convened under any Act of the Commonwealth; or (b) in relation to a bicameral legislature of a State – a joint sitting of both Houses of the legislature convened under a law of the State. Evidence (National Uniform Legislation) Act 2011 144 judge, in relation to a proceeding, means the judge, magistrate or other person before whom the proceeding is being held. judicial entity means the following: (a) the Civil and Administrative Tribunal; (b) any other person or body prescribed by the regulations. law, see clause 9 of Part 2 of this Dictionary. lawyer, see section 117. leading question means a question asked of a witness that: (a) directly or indirectly suggests a particular answer to the question; or (b) assumes the existence of a fact the existence of which is in dispute in the proceeding and as to the existence of which the witness has not given evidence before the question is asked. legal counsel means an Australian lawyer employed in or by a government agency or other body who by law is exempted from holding an Australian practising certificate, or who does not require an Australian practising certificate, to engage in legal practice in the course of that employment. Note for definition legal counsel Examples of legal counsel are in-house counsel and government solicitors. Legislative Assembly means any present or former Legislative Assembly of a Territory, and includes the Australian Capital Territory House of Assembly. member, of the Australian Federal Police, includes a special member or a staff member of the Australian Federal Police. NSW Act, see section 2A. offence means an offence against or arising under an Australian law. opinion rule means the provision contained in section 76. overseas-registered foreign lawyer, see section 170 of the Legal parent includes the meaning given in clause 10(2) of Part 2 of this Dictionary. Evidence (National Uniform Legislation) Act 2011 145 party, see section 117. picture identification evidence, see section 115. police officer means: (a) a member of the Australian Federal Police; or (b) a member of the police force of a State or Territory. postal article, see section 3 of the Australian Postal Corporation Act 1989 (Cth). previous representation means a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced. prior consistent statement, of a witness, means a previous representation that is consistent with evidence given by the witness. prior inconsistent statement, of a witness, means a previous representation that is inconsistent with evidence given by the probative value, of evidence, means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. prosecutor means a person who institutes or is responsible for the conduct of a prosecution. public document means a document that: (a) forms part of the records of the Crown in any of its capacities; or (b) forms part of the records of the government of a foreign country; or (c) forms part of the records of a person or body holding office or exercising a function under or because of the Commonwealth Constitution, an Australian law or a law of a foreign country; or (d) is being kept by or on behalf of the Crown, such a government or such a person or body; Evidence (National Uniform Legislation) Act 2011 146 and includes the records of the proceedings of, and papers presented to: (e) an Australian Parliament, a House of an Australian Parliament, a committee of such a House or a committee of an Australian Parliament; and (f) a legislature of a foreign country, including a House or committee (however described) of such a legislature. re-examination, see clause 2(3) and (4) of Part 2 of this Dictionary. representation includes: (a) an express or implied representation (whether oral or in writing); or (b) a representation to be inferred from conduct; or (c) a representation not intended by its maker to be communicated to or seen by another person; or (d) a representation that for any reason is not communicated. seal includes a stamp. tendency evidence means evidence of a kind referred to in section 97(1) that a party seeks to have adduced for the purpose referred to in that subsection. tendency rule means the provision contained in section 97(1). Territory court means: (a) the Supreme Court; or (b) any other court created by a law of the Territory; or (c) any person or body (other than a court) that, in exercising a function under the law of the Territory, is required to apply the laws of evidence. Note for definition Territory court The Commonwealth Act does not include this definition. The Commonwealth Act contains a similar definition of "ACT court". The NSW Act contains a similar definition of "NSW court". The Victorian Act contains a similar definition of "Victorian court". Evidence (National Uniform Legislation) Act 2011 147 traditional laws and customs, of an Aboriginal or Torres Strait Islander group (including a kinship group), includes any of the traditions, customary laws, customs, observances, practices, knowledge and beliefs of the group. Victorian Act, see section 2A. visual identification evidence, see section 114. witness includes the meaning given in clause 7 of Part 2 of this Dictionary.