Evidence Act 2008 (Vic)

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Version No. 027

Evidence Act 2008

No. 47 of 2008

Version incorporating amendments as at


25 March 2024

TABLE OF PROVISIONS

Section  Page

Chapter 1—Preliminary

Part 1.1—Formal matters

1Purpose

2Commencement

3Definitions

3ANotes

Part 1.2—Application of this Act

4Courts and proceedings to which Act applies

5Extended application of certain provisions

6Territories

7Act binds Crown

8Operation of Acts

9Application of common law and equity

10Parliamentary privilege preserved

11General powers of a court

Chapter 2—Adducing evidence

Part 2.1—Witnesses

Division 1—Competence and compellability of witnesses

12Competence and compellability

13Competence—lack of capacity

14Compellability—reduced capacity

15Compellability—Sovereign and others

16Competence and compellability—judges and jurors

17Competence and compellability—accused in criminal proceedings

18Compellability of spouses and others in criminal proceedings generally

19Compellability of spouses and others in certain criminal proceedings

20Comment on failure to give evidence

Division 2—Oaths and affirmations

21Sworn evidence of witnesses to be on oath or affirmation

22Interpreters to act on oath or affirmation

23Choice of oath or affirmation

24Requirements for oaths

24AAlternative oath

25Rights to make unsworn statements unaffected

Division 3—General rules about giving evidence

26Court's control over questioning of witness

27Parties may question witnesses

28Order of examination in chief, cross-examination and re‑examination

29Manner and form of questioning witnesses and their responses

30Interpreters

31Deaf and mute witnesses

32Attempts to revive memory in court

33Evidence given by police officers

34Attempts to revive memory out of court

35Effect of calling for production of documents

36Person may be examined without subpoena or other process

Division 4—Examination in chief and re‑examination

37Leading questions

38Unfavourable witnesses

39Limits on re-examination

Division 5—Cross-examination

40Witness called in error

41Improper questions

42Leading questions

43Prior inconsistent statements of witnesses

44Previous representations of other persons

45Production of documents

46Leave to recall witnesses

Part 2.2—Documents

47Definitions

48Proof of contents of documents

49Documents in foreign countries

50Proof of voluminous or complex documents

51Original document rule abolished

Part 2.3—Other evidence

52Adducing of other evidence not affected

53Views

54Views to be evidence

Chapter 3—Admissibility of evidence

Part 3.1—Relevance

55Relevant evidence

56Relevant evidence to be admissible

57Provisional relevance

58Inferences as to relevance

Part 3.2—Hearsay

Division 1—The hearsay rule

59The hearsay rule—exclusion of hearsay evidence

60Exception—evidence relevant for a non-hearsay purpose

61Exceptions to the hearsay rule dependant on competency

Division 2—"First-hand" hearsay

62Restriction to "first-hand" hearsay

63Exception—civil proceedings if maker not available

64Exception—civil proceedings if maker available

65Exception—criminal proceedings if maker not available

66Exception—criminal proceedings if maker available

66AException—contemporaneous statements about a person's health etc.

67Notice to be given

68Objections to tender of hearsay evidence in civil proceedings if maker available

Division 3—Other exceptions to the hearsay rule

69Exception—business records

70Exception—contents of tags, labels and writing

71Exception—electronic communications

72Exception—Aboriginal and Torres Strait Islander traditional laws and customs

73Exception—reputation as to relationships and age

74Exception—reputation of public or general rights

75Exception—interlocutory proceedings

Part 3.3—Opinion

76The opinion rule

77Exception—evidence relevant otherwise than as opinion evidence

78Exception—lay opinions

78AException—Aboriginal and Torres Strait Islander traditional laws and customs

79Exception—opinions based on specialised knowledge

80Ultimate issue and common knowledge rules abolished

Part 3.4—Admissions

81Hearsay and opinion rules—exception for admissions and related representations

82Exclusion of evidence of admissions that is not first-hand

83Exclusion of evidence of admissions as against third parties

84Exclusion of admissions influenced by violence and certain other conduct

85Criminal proceedings—reliability of admissions by accused

86Exclusion of records of oral questioning

87Admissions made with authority

88Proof of admissions

89Evidence of silence

90Discretion to exclude admissions

Part 3.5—Evidence of judgments and convictions

91Exclusion of evidence of judgments and convictions

92Exceptions

93Savings

Part 3.6—Tendency and coincidence

94Application

95Use of evidence for other purposes

96Failure to act

97The tendency rule

98The coincidence rule

99Requirements for notices

100Court may dispense with notice requirements

101Further restrictions on tendency evidence and coincidence evidence adduced by prosecution

Part 3.7—Credibility

Division 1—Credibility evidence

101ACredibility evidence

Division 2—Credibility of witnesses

102The credibility rule

103Exception—cross-examination as to credibility

104Further protections—cross-examination as to credibility

105Further protections—accused making unsworn statements

106Exception—rebutting denials by other evidence

107Exception—application of certain provisions to makers of representations

108Exception—re-establishing credibility

Division 3—Credibility of persons who are not witnesses

108AAdmissibility of evidence of credibility of person who has made a previous representation

108BFurther protections—previous representations of an accused who is not a witness

Division 4—Persons with specialised knowledge

108CException—evidence of persons with specialised knowledge

Part 3.8—Character

109Application

110Evidence about character of an accused

111Evidence about character of co-accused

112Leave required to cross-examine about character of accused or co-accused

Part 3.9—Identification evidence

113Application of Part

114Exclusion of visual identification evidence

115Exclusion of evidence of identification by pictures

116Directions to jury

Part 3.10—Privileges

Division 1—Client legal privilege

117Definitions

118Legal advice

119Litigation

120Unrepresented parties

121Loss of client legal privilege—generally

122Loss of client legal privilege—consent and related matters

123Loss of client legal privilege—accused

124Loss of client legal privilege—joint clients

125Loss of client legal privilege—misconduct

126Loss of client legal privilege—related communications and documents

Division 1A—Professional confidential relationship privilege

Division 1B—Sexual assault communications privilege

Division 1C—Journalist privilege

126JDefinitions

126KJournalist privilege relating to identity of informant

Division 2—Other privileges

127Religious confessions

128Privilege in respect of self-incrimination in other proceedings

128APrivilege in respect of self-incrimination—exception for certain orders etc.

Division 3—Evidence excluded in the public interest

129Exclusion of evidence of reasons for judicial etc. decisions

130Exclusion of evidence of matters of state

131Exclusion of evidence of settlement negotiations

Division 4—General

131AApplication of Part to preliminary proceedings of courts

132Court to inform of rights to make applications and objections

133Court may inspect etc. documents

134Inadmissibility of evidence that must not be adduced or given

Part 3.11—Discretionary and mandatory exclusions

135General discretion to exclude evidence

136General discretion to limit use of evidence

137Exclusion of prejudicial evidence in criminal proceedings

138Exclusion of improperly or illegally obtained evidence

139Cautioning of persons

Chapter 4—Proof

Part 4.1—Standard of proof

140Civil proceedings—standard of proof

141Criminal proceedings—standard of proof

142Admissibility of evidence—standard of proof

Part 4.2—Judicial notice

143Matters of law

144Matters of common knowledge

145Certain Crown certificates

Part 4.3—Facilitation of proof

Division 1—General

146Evidence produced by processes, machines and other devices

147Documents produced by processes, machines and other devices in the course of business

148Evidence of certain acts of justices, Australian lawyers and notaries public

149Attestation of documents

150Seals and signatures

151Seals of bodies established under State law

152Documents produced from proper custody

Division 2—Matters of official record

153Gazettes and other official documents

154Documents published by authority of Parliaments etc.

155Evidence of official records

155AEvidence of Commonwealth documents

156Public documents

157Public documents relating to court processes

158Evidence of certain public documents

159Official statistics

Division 3—Matters relating to post and communications

160Postal articles

161Electronic communications

162Lettergrams and telegrams

163Proof of letters having been sent by Commonwealth agencies

Part 4.4—Corroboration

164Corroboration requirements abolished

Part 4.5—Warnings and information

165Unreliable evidence

165AWarnings in relation to children's evidence

165BDelay in prosecution

Part 4.6—Ancillary provisions

Division 1—Requests to produce documents or call witnesses

166Definition of request

167Requests may be made about certain matters

168Time limits for making certain requests

169Failure or refusal to comply with requests

Division 2—Proof of certain matters by affidavits or written statements

170Evidence relating to certain matters

171Persons who may give such evidence

172Evidence based on knowledge, belief or information

173Notification of other parties

Division 3—Foreign law

174Evidence of foreign law

175Evidence of law reports of foreign countries

176Questions of foreign law to be decided by judge

Division 4—Procedures for proving other matters

177Certificates of expert evidence

178Convictions, acquittals and other judicial proceedings

179Proof of identity of convicted persons—affidavits by members of State or Territory police forces

180Proof of identity of convicted persons—affidavits by members of Australian Federal Police

181Proof of service of statutory notifications, notices, orders and directions

Chapter 5—Miscellaneous

182Application of certain sections in relation to Commonwealth records

183Inferences

184Accused may admit matters and give consents

185Full faith and credit to be given to documents properly authenticated

186Swearing or affirming of affidavits

187No privilege against self-incrimination for bodies corporate

188Impounding documents

189The voir dire

190Waiver of rules of evidence

191Agreements as to facts

192Leave, permission or direction may be given on terms

192AAdvance rulings and findings

193Additional powers

194Witnesses failing to attend proceedings

195Prohibited question not to be published

196Proceedings for offences

197Regulations

Schedule 1—Oaths and affirmations

Schedule 2—Transitional provisions

Dictionary

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Endnotes

1      General information

2      Table of Amendments

3      Explanatory details

Version No. 027

Evidence Act 2008

No. 47 of 2008

Version incorporating amendments as at


25 March 2024

The Parliament of Victoria enacts:

CHAPTER 1—PRELIMINARY

Introductory Note

Outline of this Act

This Act sets out the State rules of evidence. Generally speaking, the Act applies to proceedings in State courts and before other persons or bodies required to apply the laws of evidence (see section 4).

Chapter 2 is about how evidence is adduced in proceedings.

Chapter 3 is about admissibility of evidence in proceedings.

Chapter 4 is about proof of matters in proceedings.

Chapter 5 deals with miscellaneous matters.

The Dictionary at the end of this Act defines terms and expressions used in this Act.

Related legislation

This Act is in most respects uniform with the Evidence Act 1995 of the Commonwealth (the Commonwealth Act) and the Evidence Act 1995 of New South Wales (the New South Wales Act). The Acts are drafted in identical terms except so far as differences are identified by appropriate annotations to the texts, and except so far as minor drafting variations are required to accord with the drafting style of each jurisdiction.

If one Act contains a provision that is not included in another Act, there is a gap in the numbering of the other Act in order to maintain consistent numbering for the other provisions.

The Evidence Act 2001 of Tasmania also largely mirrors this legislation, but there are some departures.

PART 1.1—FORMAL MATTERS

1Purpose

The purpose of this Act is to make fresh provision for the law of evidence that is uniform with Commonwealth and New South Wales law.

2Commencement

(1)This Part and the Dictionary at the end of this Act come into operation on the day after the day on which this Act receives the Royal Assent.

(2)Subject to subsection (3), the remaining provisions of this Act come into operation on a day or days to be proclaimed.

(3)If a provision of this Act does not come into operation before 1 January 2010, it comes into operation on that day.

3Definitions

(1)Expressions used in this Act (or in a particular provision of this Act) that are defined in the Dictionary at the end of this Act have the meanings given to them in the Dictionary.

(2)The Dictionary at the end of this Act forms part of this Act.

(3)*               *                *                *                *

Notes

1Some expressions used in this Act are defined in the Interpretation of Legislation Act 1984 and have the meanings given to them in that Act.

2Subsection (2) differs from the Commonwealth Act and New South Wales Act.

3The Commonwealth Act and New South Wales Act include an additional subsection regarding definitions which are unnecessary in Victoria due to the Interpretation of Legislation Act 1984.

3ANotes

Notes do not form part of this Act.

Note

This section does not appear in the Commonwealth Act or New South Wales Act.

PART 1.2—APPLICATION OF THIS ACT

4Courts and proceedings to which Act applies

(1)This Act applies to all proceedings in a Victorian court, including proceedings that—

(a)relate to bail; or

(b)are interlocutory proceedings or proceedings of a similar kind; or

(c)are heard in chambers; or

(d)subject to subsection (2), relate to sentencing.

(2)If such a proceeding relates to sentencing—

(a)this Act applies only if the court directs that the law of evidence applies in the proceeding; and

(b)if the court specifies in the direction that the law of evidence applies only in relation to specified matters—the direction has effect accordingly.

(3)The court must make a direction if—

(a)a party to the proceeding applies for such a direction in relation to the proof of a fact; and

(b)in the court's opinion, the proceeding involves proof of that fact, and that fact is or will be significant in determining a sentence to be imposed in the proceeding.

(4)The court must make a direction if the court considers it appropriate to make such a direction in the interests of justice.

(5)In this section, a proceeding that relates to sentencing includes a proceeding for an order under Part 4 of the Sentencing Act 1991.

Notes

1Section 4 of the Commonwealth Act differs from this section. It applies that Act to proceedings in a federal court or an Australian Capital Territory court. Some provisions of the Commonwealth Act extend beyond proceedings in federal courts and Australian Capital Territory courts (see sections 5, 185, 186 and 187 of the Commonwealth Act).

2Victorian court is defined in the Dictionary. The definition includes persons or bodies required to apply the laws of evidence.

3The Commonwealth Act includes 2 additional subsections that exclude the application of that Act to appeals from a court of a State (including appeals from a court of a State exercising federal jurisdiction) and certain other courts.

4Provisions in other Victorian Acts which relieve courts from the obligation to apply the rules of evidence in certain proceedings are preserved by section 8.

5Subsection (5) is not included in the Commonwealth Act or New South Wales Act.

5Extended application of certain provisions

*                *                *                *                *

Note

The Commonwealth Act includes a provision that extends the application of specified provisions of that Act to proceedings in all Australian courts.

6Territories

*                *                *                *                *

Note

The Commonwealth Act includes a provision extending that Act to each external Territory.

7Act binds Crown

This Act binds the Crown in right of Victoria and, in so far as the legislative power of Parliament permits, the Crown in all its other capacities.

8Operation of Acts

This Act does not affect the operation of the provisions of any other Act.

Note

The Commonwealth Act includes additional subsections relating to the operation of the Corporations Act 2001 of the Commonwealth, the Australian Securities and Investments Commission Act 2001 of the Commonwealth and certain laws in force in the Australian Capital Territory. It also provides for the regulations to have continued effect (until amended) after the commencement of the Commonwealth section.

9Application of common law and equity

(1)This Act does not affect the operation of a principle or rule of common law or equity in relation to evidence in a proceeding to which this Act applies, except so far as this Act provides otherwise expressly or by necessary intendment.

(2)Without limiting subsection (1), this Act does not affect the operation of such a principle or rule so far as it relates to any of the following—

(a)admission or use of evidence of reasons for a decision of a member of a jury, or of the deliberations of a member of a jury in relation to such a decision, in a proceeding by way of appeal from a judgment, decree, order or sentence of a court;

(b)the operation of a legal or evidential presumption that is not inconsistent with this Act;

(c)a court's power to dispense with the operation of a rule of evidence or procedure in an interlocutory proceeding.

Note

This section differs from section 9 of the Commonwealth Act. That section preserves the written and unwritten laws of States and Territories in relation to various matters.

10Parliamentary privilege preserved

(1)This Act does not affect the law relating to the privileges of any Australian Parliament or any House of any Australian Parliament.

(2)In particular, section 15(2) does not affect, and is in addition to, the law relating to such privileges.

11General powers of a court

(1)The power of a court to control the conduct of a proceeding is not affected by this Act, except so far as this Act provides otherwise expressly or by necessary intendment.

(2)In particular, the powers of a court with respect to abuse of process in a proceeding are not affected.

CHAPTER 2—ADDUCING EVIDENCE

Note

Outline of this Chapter

This Chapter is about ways in which evidence is adduced.

Part 2.1 is about adducing evidence from witnesses.

Part 2.2 is about adducing documentary evidence.

Part 2.3 is about adducing other forms of evidence.

PART 2.1—WITNESSES

Division 1—Competence and compellability of witnesses

12Competence and compellability

Except as otherwise provided by this Act—

(a)every person is competent to give evidence; and

(b)a person who is competent to give evidence about a fact is compellable to give that evidence.

13Competence—lack of capacity

(1)A person is not competent to give evidence about a fact if, for any reason (including a mental, intellectual or physical disability)—

(a)the person does not have the capacity to understand a question about the fact; or

(b)the person does not have the capacity to give an answer that can be understood to a question about the fact—

and that incapacity cannot be overcome.

Note

See sections 30 and 31 for examples of assistance that may be provided to enable witnesses to overcome disabilities.

(2)A person who, because of subsection (1), is not competent to give evidence about a fact may be competent to give evidence about other facts.

(3)A person who is competent to give evidence about a fact is not competent to give sworn or affirmed evidence about the fact if the person does not have the capacity to understand that, in giving evidence, he or she is under an obligation to give truthful evidence.

(4)A person who is not competent to give sworn or affirmed evidence about a fact may, subject to subsection (5), be competent to give unsworn evidence or evidence that is not affirmed about the fact.

(5)A person who, because of subsection (3), is not competent to give sworn or affirmed evidence is competent to give unsworn evidence or evidence that is not affirmed if the court has told the person—

(a)that it is important to tell the truth; and

(b)that he or she may be asked questions that he or she does not know, or cannot remember, the answer to, and that he or she should tell the court if this occurs; and

(c)that he or she may be asked questions that suggest certain statements are true or untrue and that he or she should agree with the statements that he or she believes are true and should feel no pressure to agree with statements that he or she believes are untrue.

(6)It is presumed, unless the contrary is proved, that a person is not incompetent because of this section.

(7)Evidence that has been given by a witness does not become inadmissible merely because, before the witness finishes giving evidence, he or she dies or ceases to be competent to give evidence.

(8)For the purpose of determining a question arising under this section, the court may inform itself as it thinks fit, including by obtaining information from a person who has relevant specialised knowledge based on the person's training, study or experience.

14Compellability—reduced capacity

A person is not compellable to give evidence on a particular matter if the court is satisfied that—

(a)substantial cost or delay would be incurred in ensuring that the person would have the capacity to understand a question about the matter or to give an answer that can be understood to a question about the matter; and

(b)adequate evidence on that matter has been given, or will be able to be given, from one or more other persons or sources.

15Compellability—Sovereign and others

(1)None of the following is compellable to give evidence—

(a)the Sovereign;

(b)the Governor-General;

(c)the Governor of a State;

(d)the Administrator of a Territory;

(e)a foreign sovereign or the Head of State of a foreign country.

(2)A member of a House of an Australian Parliament is not compellable to give evidence if the member would, if compelled to give evidence, be prevented from attending—

(a)a sitting of that House, or a joint sitting of that Parliament; or

(b)a meeting of a committee of that House or that Parliament, being a committee of which he or she is a member.

16Competence and compellability—judges and jurors

(1)A person who is a judge or juror in a proceeding is not competent to give evidence in that proceeding. However, a juror is competent to give evidence in the proceeding about matters affecting the conduct of the proceeding.

(2)A person who is or was a judge in an Australian or overseas proceeding is not compellable to give evidence about that proceeding unless the court gives leave.

17Competence and compellability—accused in criminal proceedings

(1)This section applies only in a criminal proceeding.

(2)An accused is not competent to give evidence as a witness for the prosecution.

(3)An associated accused is not compellable to give evidence for or against an accused in a criminal proceeding, unless the associated accused is being tried separately from the accused.

(4)If a witness is an associated accused who is being tried jointly with the accused in the proceeding, the court is to satisfy itself (if there is a jury, in the jury's absence) that the witness is aware of the effect of subsection (3).

Note

Associated accused is defined in the Dictionary.

18Compellability of spouses and others in criminal proceedings generally

(1)This section applies only in a criminal proceeding.

(2)A person who, when required to give evidence, is the spouse, de facto partner, parent or child of an accused may object to being required—

(a)to give evidence; or

(b)to give evidence of a communication between the person and the accused—

as a witness for the prosecution.

(3)The objection is to be made before the person gives the evidence or as soon as practicable after the person becomes aware of the right so to object, whichever is the later.

(4)If it appears to the court that a person may have a right to make an objection under this section, the court is to satisfy itself that the person is aware of the effect of this section as it may apply to the person.

(5)If there is a jury, the court is to hear and determine any objection under this section in the absence of the jury.

(6)A person who makes an objection under this section to giving evidence or giving evidence of a communication must not be required to give the evidence if the court finds that—

(a)there is a likelihood that harm would or might be caused (whether directly or indirectly) to the person, or to the relationship between the person and the accused, if the person gives the evidence; and

(b)the nature and extent of that harm outweighs the desirability of having the evidence given.

(7)Without limiting the matters that may be taken into account by the court for the purposes of subsection (6), it must take into account the following—

(a)the nature and gravity of the offence for which the accused is being prosecuted;

(b)the substance and importance of any evidence that the person might give and the weight that is likely to be attached to it;

(c)whether any other evidence concerning the matters to which the evidence of the person would relate is reasonably available to the prosecutor;

(d)the nature of the relationship between the accused and the person;

(e)whether, in giving the evidence, the person would have to disclose matter that was received by the person in confidence from the accused.

(8)If an objection under this section has been determined, the prosecutor may not comment on—

(a)the objection; or

(b)the decision of the court in relation to the objection; or

(c)the failure of the person to give evidence.

19Compellability of spouses and others in certain criminal proceedings

*                *                *                *                *

Note

Section 19 of the Commonwealth Act and New South Wales Act excludes the application of the section in proceedings for certain offences.

20Comment on failure to give evidence

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Note

Section 20 of the Commonwealth Act and New South Wales Act requires the judge to give certain directions to the jury relating to the failure to give evidence or call witnesses in a criminal proceeding for an indictable offence. Division 6 of Part 4 of the Jury Directions Act 2015 contains provisions relating to the failure to give evidence or call a witness that apply in criminal trials.

Division 2—Oaths and affirmations

21Sworn evidence of witnesses to be on oath or affirmation

(1)A witness in a proceeding must either take an oath, or make an affirmation, before giving evidence.

(2)Subsection (1) does not apply to a person who gives unsworn evidence under section 13.

(3)A person who is called merely to produce a document or thing to the court need not take an oath or make an affirmation before doing so.

(4)The witness is to take the oath, or make the affirmation, in accordance with the appropriate form in Schedule 1 or in a similar form.

(5)Such an affirmation has the same effect for all purposes as an oath.

(6)For the purposes of subsection (4), in the case of a child or a person with a cognitive disability, the following words are taken to be a similar form of oath or affirmation—

"I promise to tell the truth.".

22Interpreters to act on oath or affirmation

(1)A person must either take an oath, or make an affirmation, before acting as an interpreter in a proceeding.

(1A)An oath taken, or an affirmation made, by a person before acting as an interpreter on a day is taken for the purposes of subsection (1) to be an oath taken or affirmation made by that person for the purposes of any subsequent proceedings in that court on that day in which the person acts as an interpreter.

(2)The person is to take the oath, or make the affirmation, in accordance with the appropriate form in Schedule 1 or in a similar form.

(3)Such an affirmation has the same effect for all purposes as an oath.

Note

The Commonwealth Act does not include subsection (1A).

23Choice of oath or affirmation

(1)A person who is to be a witness or act as an interpreter in a proceeding may choose whether to take an oath or make an affirmation.

(2)The court is to inform the person that he or she has this choice, unless the court is satisfied that the person has already been informed or knows that he or she has the choice.

(3)The court may direct a person who is to be a witness to make an affirmation if—

(a)the person refuses to choose whether to take an oath or make an affirmation; or

(b)it is not reasonably practicable for the person to take an appropriate oath.

Note

Subsection (2) differs from section 23 of the Commonwealth Act.

24Requirements for oaths

(1)It is not necessary that a religious text be used in taking an oath.

(2)An oath is effective for the purposes of this Division even if the person who took it—

(a)did not have a religious belief or did not have a religious belief of a particular kind; or

(b)did not understand the nature and consequences of the oath.

24AAlternative oath

(1)A person may take an oath even if the person's religious or spiritual beliefs do not include a belief in the existence of a god.

(2)Despite anything to the contrary in this Act, the form of oath taken by a person—

(a)need not include a reference to a god; and

(b)may instead refer to the basis of the person's beliefs in accordance with a form prescribed by the regulations.

Note

The Commonwealth Act does not include an equivalent provision to section 24A.

25Rights to make unsworn statements unaffected

*                *                *                *                *

Note

The Commonwealth Act previously included a provision that preserved any right that an accused in a criminal proceeding had under a law of a State or Territory to make an unsworn statement.

Division 3—General rules about giving evidence

26Court's control over questioning of witness

The court may make such orders as it considers just in relation to—

(a)the way in which witnesses are to be questioned; and

(b)the production and use of documents and things in connection with the questioning of witnesses; and

(c)the order in which parties may question a witness; and

(d)the presence and behaviour of any person in connection with the questioning of witnesses.

27Parties may question witnesses

A party may question any witness, except as provided by this Act.

28Order of examination in chief, cross-examination and re‑examination

Unless the court otherwise directs—

(a)cross-examination of a witness is not to take place before the examination in chief of the witness; and

(b)re-examination of a witness is not to take place before all other parties who wish to do so have cross-examined the witness.

29Manner and form of questioning witnesses and their responses

(1)A party may question a witness in any way the party thinks fit, except as provided by this Chapter or as directed by the court.

(2)A court may, on its own motion or on the application of the party that called the witness, direct that the witness give evidence wholly or partly in narrative form.

(3)Such a direction may include directions about the way in which evidence is to be given in that form.

(4)Evidence may be given in the form of charts, summaries or other explanatory material if it appears to the court that the material would be likely to aid its comprehension of other evidence that has been given or is to be given.

30Interpreters

A witness may give evidence about a fact through an interpreter unless the witness can understand and speak the English language sufficiently to enable the witness to understand, and to make an adequate reply to, questions that may be put about the fact.

31Deaf and mute witnesses

(1)A witness who cannot hear adequately may be questioned in any appropriate way.

(2)A witness who cannot speak adequately may give evidence by any appropriate means.

(3)The court may give directions concerning either or both of the following—

(a)the way in which a witness may be questioned under subsection (1);

(b)the means by which a witness may give evidence under subsection (2).

(4)This section does not affect the right of a witness to whom this section applies to give evidence about a fact through an interpreter under section 30.

32Attempts to revive memory in court

(1)A witness must not, in the course of giving evidence, use a document to try to revive his or her memory about a fact or opinion unless the court gives leave.

(2)Without limiting the matters that the court may take into account in deciding whether to give leave, it is to take into account—

(a)whether the witness will be able to recall the fact or opinion adequately without using the document; and

(b)whether so much of the document as the witness proposes to use is, or is a copy of, a document that—

(i)was written or made by the witness when the events recorded in it were fresh in his or her memory; or

(ii)was, at such a time, found by the witness to be accurate.

(3)If a witness has, while giving evidence, used a document to try to revive his or her memory about a fact or opinion, the witness may, with the leave of the court, read aloud, as part of his or her evidence, so much of the document as relates to that fact or opinion.

(4)The court is, on the request of a party, to give such directions as the court thinks fit to ensure that so much of the document as relates to the proceeding is produced to that party.

33Evidence given by police officers

(1)Despite section 32, in any criminal proceeding, a police officer may give evidence in chief for the prosecution by reading or being led through a written statement previously made by the police officer.

(2)Evidence may not be so given unless—

(a)the statement was made by the police officer at the time of or soon after the occurrence of the events to which it refers; and

(b)the police officer signed the statement when it was made; and

(c)a copy of the statement had been given to the person charged or to the person's Australian legal practitioner a reasonable time before the hearing of the evidence for the prosecution.

Note

Paragraph (c) differs from the Commonwealth Act and New South Wales Act.

(3)A reference in this section to a police officer includes a reference to a person who, at the time the statement concerned was made, was a police officer.

34Attempts to revive memory out of court

(1)The court may, on the request of a party, give such directions as are appropriate to ensure that specified documents and things used by a witness otherwise than while giving evidence to try to revive his or her memory are produced to the party for the purposes of the proceeding.

(2)The court may refuse to admit the evidence given by the witness so far as it concerns a fact as to which the witness so tried to revive his or her memory if, without reasonable excuse, the directions have not been complied with.

35Effect of calling for production of documents

(1)A party is not to be required to tender a document only because the party, whether under this Act or otherwise—

(a)called for the document to be produced to the party; or

(b)inspected it when it was so produced.

(2)The party who produces a document so called for is not entitled to tender it only because the party to whom it was produced, or who inspected it, fails to tender it.

36Person may be examined without subpoena or other process

(1)The court may order a person who—

(a)is present at the hearing of a proceeding; and

(b)is compellable to give evidence in the proceeding—

to give evidence and to produce documents or things even if a subpoena or other process requiring the person to attend for that purpose has not been duly served on the person.

(2)A person so ordered to give evidence or to produce documents or things is subject to the same penalties and liabilities as if the person had been duly served with such a subpoena or other process.

(3)A party who inspects a document or thing produced to the court because of subsection (1) need not use the document in evidence.

Division 4—Examination in chief and re‑examination

37Leading questions

(1)A leading question must not be put to a witness in examination in chief or in re-examination unless—

(a)the court gives leave; or

(b)the question relates to a matter introductory to the witness's evidence; or

(c)no objection is made to the question and (leaving aside the party conducting the examination in chief or re-examination) each other party to the proceeding is represented by an Australian legal practitioner or prosecutor; or

(d)the question relates to a matter that is not in dispute; or

(e)if the witness has specialised knowledge based on the witness's training, study or experience—the question is asked for the purpose of obtaining the witness's opinion about a hypothetical statement of facts, being facts in respect of which evidence has been, or is intended to be, given.

(2)Unless the court otherwise directs, subsection (1) does not apply in civil proceedings to a question that relates to an investigation, inspection or report that the witness made in the course of carrying out public or official duties.

(3)Subsection (1) does not prevent a court from exercising power under rules of court to allow a written statement or report to be tendered or treated as evidence in chief of its maker.

Note

Leading question is defined in the Dictionary.

38Unfavourable witnesses

(1)A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about—

(a)evidence given by the witness that is unfavourable to the party; or

(b)a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence; or

(c)whether the witness has, at any time, made a prior inconsistent statement.

(2)Questioning a witness under this section is taken to be cross-examination for the purposes of this Act (other than section 39).

(3)The party questioning the witness under this section may, with the leave of the court, question the witness about matters relevant only to the witness's credibility.

Note

The rules about admissibility of evidence relevant only to credibility are set out in Part 3.7.

(4)Questioning under this section is to take place before the other parties cross-examine the witness, unless the court otherwise directs.

(5)If the court so directs, the order in which the parties question the witness is to be as the court directs.

(6)Without limiting the matters that the court may take into account in determining whether to give leave or a direction under this section, it is to take into account—

(a)whether the party gave notice at the earliest opportunity of the party's intention to seek leave; and

Note

Paragraph (a) differs from the Commonwealth Act and New South Wales Act.

(b)the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party.

(7)A party is subject to the same liability to be cross-examined under this section as any other witness if—

(a)a proceeding is being conducted in the name of the party by or on behalf of an insurer or other person; and

(b)the party is a witness in the proceeding.

39Limits on re-examination

On re-examination—

(a)a witness may be questioned about matters arising out of evidence given by the witness in cross-examination; and

(b)other questions may not be put to the witness unless the court gives leave.

Division 5—Cross-examination

40Witness called in error

A party is not to cross-examine a witness who has been called in error by another party and has not been questioned by that other party about a matter relevant to a question to be determined in the proceeding.

41Improper questions

(1)The court must disallow an improper question or improper questioning put to a witness in cross-examination, or inform the witness that it need not be answered.

*                *                *                *                *

(3)In this section, improper question or improper questioning means a question or a sequence of questions put to a witness that—

(a)is misleading or confusing; or

(b)is unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive; or

(c)is put to the witness in a manner or tone that is belittling, insulting or otherwise inappropriate; or

(d)has no basis other than a stereotype (for example, a stereotype based on the witness's sex, race, culture, ethnicity, age or mental, intellectual or physical disability).

*                *                *                *                *

(5)A question is not an improper question merely because—

(a)the question challenges the truthfulness of the witness or the consistency or accuracy of any statement made by the witness; or

(b)the question requires the witness to discuss a subject that could be considered distasteful to, or private by, the witness.

(6)A party may object to a question put to a witness on the ground that it is an improper question.

(7)However, the duty imposed on the court by this section applies whether or not an objection is raised to a particular question.

(8)A failure by the court to disallow a question under this section, or to inform the witness that it need not be answered, does not affect the admissibility in evidence of any answer given by the witness in response to the question.

Notes

1A person must not, without the express permission of a court, print or publish any question that the court has disallowed under this section—see section 195.

2Section 41 differs from the Commonwealth Act and New South Wales Act.

42Leading questions

(1)A party may put a leading question to a witness in cross-examination unless the court disallows the question or directs the witness not to answer it.

(2)Without limiting the matters that the court may take into account in deciding whether to disallow the question or give such a direction, it is to take into account the extent to which—

(a)evidence that has been given by the witness in examination in chief is unfavourable to the party who called the witness; and

(b)the witness has an interest consistent with an interest of the cross-examiner; and

(c)the witness is sympathetic to the party conducting the cross-examination, either generally or about a particular matter; and

(d)the witness's age, or any mental, intellectual or physical disability to which the witness is subject, may affect the witness's answers.

(3)The court is to disallow the question, or direct the witness not to answer it, if the court is satisfied that the facts concerned would be better ascertained if leading questions were not used.

(4)This section does not limit the court's power to control leading questions.

Note

Leading question is defined in the Dictionary.

43Prior inconsistent statements of witnesses

(1)A witness may be cross-examined about a prior inconsistent statement alleged to have been made by the witness whether or not—

(a)complete particulars of the statement have been given to the witness; or

(b)a document containing a record of the statement has been shown to the witness.

(2)If, in cross-examination, a witness does not admit that he or she has made a prior inconsistent statement, the cross-examiner is not to adduce evidence of the statement otherwise than from the witness unless, in the cross-examination, the cross-examiner—

(a)informed the witness of enough of the circumstances of the making of the statement to enable the witness to identify the statement; and

(b)drew the witness's attention to so much of the statement as is inconsistent with the witness's evidence.

(3)For the purpose of adducing evidence of the statement, a party may re-open the party's case.

44Previous representations of other persons

(1)Except as provided by this section, a cross-examiner must not question a witness about a previous representation alleged to have been made by a person other than the witness.

(2)A cross-examiner may question a witness about the representation and its contents if—

(a)evidence of the representation has been admitted; or

(b)the court is satisfied that it will be admitted.

(3)If subsection (2) does not apply and the representation is contained in a document, the document may only be used to question a witness as follows—

(a)the document must be produced to the witness;

(b)if the document is a tape recording, or any other kind of document from which sounds are reproduced—the witness must be provided with the means (for example, headphones) to listen to the contents of the document without other persons present at the cross-examination hearing those contents;

(c)the witness must be asked whether, having examined (or heard) the contents of the document, the witness stands by the evidence that he or she has given;

(d)neither the cross-examiner nor the witness is to identify the document or disclose any of its contents.

(4)A document that is so used may be marked for identification.

45Production of documents

(1)This section applies if a party is cross-examining or has cross-examined a witness about—

(a)a prior inconsistent statement alleged to have been made by the witness that is recorded in a document; or

(b)a previous representation alleged to have been made by another person that is recorded in a document.

(2)If the court so orders or if another party so requires, the party must produce—

(a)the document; or

(b)such evidence of the contents of the document as is available to the party—

to the court or to that other party.

(3)The court may—

(a)examine a document or evidence that has been so produced; and

(b)give directions as to its use; and

(c)admit it even if it has not been tendered by a party.

(4)Subsection (3) does not permit the court to admit a document or evidence that is not admissible because of Chapter 3.

(5)The mere production of a document to a witness who is being cross-examined does not give rise to a requirement that the cross-examiner tender the document.

46Leave to recall witnesses

(1)The court may give leave to a party to recall a witness to give evidence about a matter raised by evidence adduced by another party, being a matter on which the witness was not cross-examined, if the evidence concerned has been admitted and—

(a)it contradicts evidence about the matter given by the witness in examination in chief; or

(b)the witness could have given evidence about the matter in examination in chief.

(2)A reference in this section to a matter raised by evidence adduced by another party includes a reference to an inference drawn from, or that the party intends to draw from, that evidence.

PART 2.2—DOCUMENTS

47Definitions

(1)A reference in this Part to a document in question is a reference to a document as to the contents of which it is sought to adduce evidence.

(2)A reference in this Part to a copy of a document in question includes a reference to a document that is not an exact copy of the document in question but that is identical to the document in question in all relevant respects.

48Proof of contents of documents

(1)A party may adduce evidence of the contents of a document in question by tendering the document in question or by any one or more of the following methods—

(a)adducing evidence of an admission made by another party to the proceeding as to the contents of the document in question;

(b)tendering a document that—

(i)is or purports to be a copy of the document in question; and

(ii)has been produced, or purports to have been produced, by a device that reproduces the contents of documents;

(c)if the document in question is an article or thing by which words are recorded in such a way as to be capable of being reproduced as sound, or in which words are recorded in a code (including shorthand writing)—tendering a document that is or purports to be a transcript of the words;

(d)if the document in question is an article or thing on or in which information is stored in such a way that it cannot be used by the court unless a device is used to retrieve, produce or collate it—tendering a document that was or purports to have been produced by use of the device;

(e)tendering a document that—

(i)forms part of the records of or kept by a business (whether or not the business is still in existence); and

(ii)is or purports to be a copy of, or an extract from or a summary of, the document in question, or is or purports to be a copy of such an extract or summary;

(f)if the document in question is a public document—tendering a document that is or purports to be a copy of the document in question and that is or purports to have been printed—

(i)by a person authorised by or on behalf of the Government to print the document or by the Government Printer of the Commonwealth or by the government or official printer of another State or a Territory; or

(ii)by the authority of the Government or administration of the State, the Commonwealth, another State, a Territory or a foreign country; or

(iii)by authority of an Australian Parliament, a House of an Australian Parliament, a committee of such a House or a committee of an Australian Parliament.

(2)Subsection (1) applies to a document in question whether the document in question is available to the party or not.

(3)If the party adduces evidence of the contents of a document under subsection (1)(a), the evidence may only be used—

(a)in respect of the party's case against the other party who made the admission concerned; or

(b)in respect of the other party's case against the party who adduced the evidence in that way.

(4)A party may adduce evidence of the contents of a document in question that is not available to the party, or the existence and contents of which are not in issue in the proceeding, by—

(a)tendering a document that is a copy of, or an extract from or summary of, the document in question; or

(b)adducing from a witness evidence of the contents of the document in question.

Notes

1Clause 5 of Part 2 of the Dictionary is about the availability of documents.

2Section 182 of the Commonwealth Act gives section 48 of the Commonwealth Act a wider application in relation to Commonwealth records and certain Commonwealth documents.

49Documents in foreign countries

No paragraph of section 48(1) (other than paragraph (a)) applies to a document that is in a foreign country unless—

(a)the party who adduces evidence of the contents of the document in question has, not less than 28 days (or such other period as may be prescribed by the regulations or by rules of court) before the day on which the evidence is adduced, served on each other party a copy of the document proposed to be tendered; or

(b)the court directs that it is to apply.

Note

Section 182 of the Commonwealth Act gives section 49 of the Commonwealth Act a wider application in relation to Commonwealth records and certain Commonwealth documents.

50Proof of voluminous or complex documents

(1)The court may, on the application of a party, direct that the party may adduce evidence of the contents of 2 or more documents in question in the form of a summary if the court is satisfied that it would not otherwise be possible conveniently to examine the evidence because of the volume or complexity of the documents in question.

(2)The court may only make such a direction if the party seeking to adduce the evidence in the form of a summary has—

(a)served on each other party a copy of the summary that discloses the name and address of the person who prepared the summary; and

(b)given each other party a reasonable opportunity to examine or copy the documents in question.

(3)The opinion rule does not apply to evidence adduced in accordance with a direction under this section.

51Original document rule abolished

The principles and rules of the common law that relate to the means of proving the contents of documents are abolished.

Note

Section 182 of the Commonwealth Act gives the provisions of Part 2.2 of the Commonwealth Act a wider application in relation to Commonwealth records and certain Commonwealth documents.

PART 2.3—OTHER EVIDENCE

52Adducing of other evidence not affected

This Act (other than this Part) does not affect the operation of any Australian law or rule of practice so far as it permits evidence to be adduced in a way other than by witnesses giving evidence or documents being tendered in evidence.

53Views

(1)A judge may, on application, order that a demonstration, experiment or inspection be held.

(2)A judge is not to make an order unless he or she is satisfied that—

(a)the parties will be given a reasonable opportunity to be present; and

(b)the judge and, if there is a jury, the jury will be present.

(3)Without limiting the matters that the judge may take into account in deciding whether to make an order, the judge is to take into account the following—

(a)whether the parties will be present;

(b)whether the demonstration, experiment or inspection will, in the court's opinion, assist the court in resolving issues of fact or understanding the evidence;

(c)the danger that the demonstration, experiment or inspection might be unfairly prejudicial, might be misleading or confusing or might cause or result in undue waste of time;

(d)in the case of a demonstration—the extent to which the demonstration will properly reproduce the conduct or event to be demonstrated;

(e)in the case of an inspection—the extent to which the place or thing to be inspected has materially altered.

(4)The court (including, if there is a jury, the jury) is not to conduct an experiment in the course of its deliberations.

(5)This section does not apply in relation to the inspection of an exhibit by the court or, if there is a jury, by the jury.

54Views to be evidence

The court (including, if there is a jury, the jury) may draw any reasonable inference from what it sees, hears or otherwise notices during a demonstration, experiment or inspection.

CHAPTER 3—ADMISSIBILITY OF EVIDENCE

Introductory Note

Outline of this Chapter

This Chapter is about whether evidence adduced in a proceeding is admissible.

Part 3.1 sets out the general inclusionary rule that relevant evidence is admissible.

Part 3.2 is about the exclusion of hearsay evidence, and exceptions to the hearsay rule.

Part 3.3 is about exclusion of opinion evidence, and exceptions to the opinion rule.

Part 3.4 is about admissions and the extent to which they are admissible as exceptions to the hearsay rule and the opinion rule.

(b)any other court created by Parliament—

and includes any person or body (other than a court) that, in exercising a function under the law of the State, is required to apply the laws of evidence;

Note

The Commonwealth Act and New South Wales Act do not include this definition.

visual identification evidence is defined in section 114;

witness includes the meaning given in clause 7 of Part 2 of this Dictionary.

Part 2—Other expressions

1References to businesses

(1)A reference in this Act to a business includes a reference to the following—

(a)a profession, calling, occupation, trade or undertaking;

(b)an activity engaged in or carried on by the Crown in any of its capacities;

(c)an activity engaged in or carried on by the government of a foreign country;

(d)an activity engaged in or carried on by a person or body holding office or exercising power under or because of the Commonwealth Constitution, an Australian law or a law of a foreign country, being an activity engaged in or carried on in the performance of the functions of the office or in the exercise of the power (otherwise than in a private capacity);

(e)the proceedings of an Australian Parliament, a House of an Australian Parliament, a committee of such a House or a committee of an Australian Parliament;

(f)the proceedings of a legislature of a foreign country, including a House or committee (however described) of such a legislature.

(2)A reference in this Act to a business also includes a reference to—

(a)a business that is not engaged in or carried on for profit; or

(b)a business engaged in or carried on outside Australia.

2References to examination in chief, cross-examination and re‑examination

(1)A reference in this Act to examination in chief of a witness is a reference to the questioning of a witness by the party who called the witness to give evidence, not being questioning that is re‑examination.

(2)A reference in this Act to cross-examination of a witness is a reference to the questioning of a witness by a party other than the party who called the witness to give evidence.

(3)A reference in this Act to re-examination of a witness is a reference to the questioning of a witness by the party who called the witness to give evidence, being questioning (other than further examination in chief with the leave of the court) conducted after the cross-examination of the witness by another party.

(4)If a party has recalled a witness who has already given evidence, a reference in this Act to re-examination of a witness does not include a reference to the questioning of the witness by that party before the witness is questioned by another party.

3References to civil penalties

For the purposes of this Act, a person is taken to be liable to a civil penalty if, in an Australian or overseas proceeding (other than a criminal proceeding), the person would be liable to a penalty arising under an Australian law or a law of a foreign country.

4Unavailability of persons

(1)For the purposes of this Act, a person is taken not to be available to give evidence about a fact if—

(a)the person is dead; or

(b)the person is, for any reason other than the application of section 16 (Competence and compellability—judges and jurors), not competent to give the evidence; or

(c)the person is mentally or physically unable to give the evidence and it is not reasonably practicable to overcome that inability; or

(d)it would be unlawful for the person to give the evidence; or

(e)a provision of this Act prohibits the evidence being given; or

(f)all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or secure his or her attendance, but without success; or

(g)all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success.

(2)In all other cases the person is taken to be available to give evidence about the fact.

5Unavailability of documents and things

For the purposes of this Act, a document or thing is taken not to be available to a party if and only if—

(a)it cannot be found after reasonable inquiry and search by the party; or

(b)it was destroyed by the party, or by a person on behalf of the party, otherwise than in bad faith, or was destroyed by another person; or

(c)it would be impractical to produce the document or thing during the course of the proceeding; or

(d)production of the document or thing during the course of the proceeding could render a person liable to conviction for an offence; or

(e)it is not in the possession or under the control of the party and—

(i)it cannot be obtained by any judicial procedure of the court; or

(ii)it is in the possession or under the control of another party to the proceeding concerned who knows or might reasonably be expected to know that evidence of the contents of the document, or evidence of the thing, is likely to be relevant in the proceeding; or

(iii)it was in the possession or under the control of such a party at a time when that party knew or might reasonably be expected to have known that such evidence was likely to be relevant in the proceeding.

6Representations in documents

For the purposes of this Act, a representation contained in a document is taken to have been made by a person if—

(a)the document was written, made or otherwise produced by the person; or

(b)the representation was recognised by the person as his or her representation by signing, initialling or otherwise marking the document.

7Witnesses

(1)A reference in this Act to a witness includes a reference to a party giving evidence.

(2)A reference in this Act to a witness who has been called by a party to give evidence includes a reference to the party giving evidence.

(3)A reference in this clause to a party includes an accused in a criminal proceeding.

8References to documents

A reference in this Act to a document includes a reference to—

(a)any part of the document; or

(b)any copy, reproduction or duplicate of the document or of any part of the document; or

(c)any part of such a copy, reproduction or duplicate.

8AReferences to offices etc.

In this Act—

(a)a reference to a person appointed or holding office under or because of an Australian law or a law of the Commonwealth includes a reference to an APS employee within the meaning of the Public Service Act 1999 of the Commonwealth; and

(b)in that context, a reference to an office is a reference to a position occupied by the APS employee concerned, and a reference to an officer includes a reference to a Secretary, or APS employee, within the meaning of the Act.

9References to laws

(1)A reference in this Act to a law of the Commonwealth, a State, a Territory or a foreign country is a reference to a law (whether written or unwritten) of or in force in that place.

(2)A reference in this Act to an Australian law is a reference to an Australian law (whether written or unwritten) of or in force in Australia.

10References to children and parents

(1)A reference in this Act to a child of a person includes a reference to—

(a)an adopted child or ex-nuptial child of the person; or

(b)a child living with the person as if the child were a member of the person's family.

(2)A reference in this Act to a parent of a person includes a reference to—

(a)an adoptive parent of the person; or

(b)if the person is an ex-nuptial child—the person's natural father; or

(c)the person with whom a child is living as if the child were a member of the person's family.

11References to de facto partners

(1)A reference in this Act to a de facto partner of a person is a reference to a person who is in a de facto relationship with the person.

(2)A person is in a de facto relationship with another person if the two persons have a relationship as a couple and are not legally married.

(3)In determining whether two persons are in a de facto relationship, all the circumstances of the relationship are to be taken into account, including such of the following matters as are relevant in the circumstances of the particular case—

(a)the duration of the relationship;

(b)the nature and extent of their common residence;

(c)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;

(d)the ownership, use and acquisition of their property;

(e)the degree of mutual commitment to a shared life;

(f)the care and support of children;

(g)the reputation and public aspects of the relationship.

(4)No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether two persons have a relationship as a couple.

(5)For the purposes of subclause (3), the following matters are irrelevant—

(a)whether the persons are different sexes or the same sex;

(b)whether either of the persons is legally married to someone else or in another de facto relationship.

(6)Despite subclauses (3) and (4), a person is in a de facto relationship with another person if those two persons are in a registered domestic relationship within the meaning of the Relationships Act 2008.

Note

The Commonwealth Act and New South Wales Act do not include subclause (6).

═══════════════

ENDNOTES

1   General information

See for Victorian Bills, Acts and current Versions of legislation and up-to-date legislative information.

Minister's second reading speech—

Legislative Assembly: 26 June 2008

Legislative Council: 31 July 2008

The long title for the Bill for this Act was "A Bill for an Act about the law of evidence and for other purposes."

The Evidence Act 2008 was assented to on 15 September 2008 and came into operation as follows:

Sections 1–3A and Dictionary on 16 September 2008: section 2(1); rest of Act on 1 January 2010: section 2(3).

INTERPRETATION OF LEGISLATION ACT 1984 (ILA)

Style changes

Section 54A of the ILA authorises the making of the style changes set out in Schedule 1 to that Act.

References to ILA s. 39B

Sidenotes which cite ILA s. 39B refer to section 39B of the ILA which provides that where an undivided section or clause of a Schedule is amended by the insertion of one or more subsections or subclauses, the original section or clause becomes subsection or subclause (1) and is amended by the insertion of the expression "(1)" at the beginning of the original section or clause.

Interpretation

As from 1 January 2001, amendments to section 36 of the ILA have the following effects:

•     Headings

All headings included in an Act which is passed on or after 1 January 2001 form part of that Act.  Any heading inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act.  This includes headings to Parts, Divisions or Subdivisions in a Schedule; sections; clauses; items; tables; columns; examples; diagrams; notes or forms.  See section 36(1A)(2A).

•     Examples, diagrams or notes

All examples, diagrams or notes included in an Act which is passed on or after 1 January 2001 form part of that Act.  Any examples, diagrams or notes inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, form part of that Act.  See section 36(3A).

•     Punctuation

All punctuation included in an Act which is passed on or after 1 January 2001 forms part of that Act.  Any punctuation inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act.  See section 36(3B).

•     Provision numbers

All provision numbers included in an Act form part of that Act, whether inserted in the Act before, on or after 1 January 2001.  Provision numbers include section numbers, subsection numbers, paragraphs and subparagraphs. See section 36(3C).

•     Location of "legislative items"

A "legislative item" is a penalty, an example or a note.  As from 13 October 2004, a legislative item relating to a provision of an Act is taken to be at the foot of that provision even if it is preceded or followed by another legislative item that relates to that provision.  For example, if a penalty at the foot of a provision is followed by a note, both of these legislative items will be regarded as being at the foot of that provision.  See section 36B.

•     Other material

Any explanatory memorandum, table of provisions, endnotes, index and other material printed after the Endnotes does not form part of an Act.
See section 36(3)(3D)(3E).

2   Table of Amendments

This publication incorporates amendments made to the Evidence Act 2008 by Acts and subordinate instruments.

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Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009, No. 68/2009

Assent Date: 24.11.09
Commencement Date: S. 97(Sch. item 55) on 1.1.10: Government Gazette 10.12.09 p. 3215
CurrentState: This information relates only to the provision/s amending the Evidence Act 2008

Statute Law Amendment (Evidence Consequential Provisions) Act 2009, No. 69/2009

Assent Date: 24.11.09
Commencement Date: Ss 52, 53 on 1.1.10: s. 2(2)
CurrentState: This information relates only to the provision/s amending the Evidence Act 2008

Statute Law Revision Act 2011, No. 29/2011

Assent Date: 21.6.11
Commencement Date: S. 3(Sch. 1 item 35) on 22.6.11: s. 2(1)
CurrentState: This information relates only to the provision/s amending the Evidence Act 2008

Evidence Amendment (Journalist Privilege) Act 2012, No. 52/2012

Assent Date: 18.9.12
Commencement Date: Ss 3–10 on 1.1.13: s. 2(2)
CurrentState: This information relates only to the provision/s amending the Evidence Act 2008

Workplace Injury Rehabilitation and Compensation Act 2013, No. 67/2013

Assent Date: 12.11.13
Commencement Date: S. 649(Sch. 9 item 17) on 1.7.14: s. 2(1)
CurrentState: This information relates only to the provision/s amending the Evidence Act 2008

Legal Profession Uniform Law Application Act 2014, No. 17/2014

Assent Date: 25.3.14
Commencement Date: S. 160(Sch. 2 item 39) on 1.7.15: Special Gazette (No. 151) 16.6.15 p. 1
CurrentState: This information relates only to the provision/s amending the Evidence Act 2008

Treasury Legislation and Other Acts Amendment Act 2014, No. 44/2014

Assent Date: 27.6.14
Commencement Date: S. 33(Sch. item 12) on 30.6.14: s. 2(5)
CurrentState: This information relates only to the provision/s amending the Evidence Act 2008

Crimes Amendment (Abolition of Defensive Homicide) Act 2014, No. 63/2014

Assent Date: 9.9.14
Commencement Date: Ss 7(12), 9, 10 on 1.11.14: Special Gazette (No. 350) 7.10.14 p. 1
CurrentState: This information relates only to the provision/s amending the Evidence Act 2008

Jury Directions Act 2015, No. 14/2015

Assent Date: 12.5.15
Commencement Date: Ss 70–78 on 29.6.15: s. 2(4)
CurrentState: This information relates only to the provision/s amending the Evidence Act 2008

Jury Directions and Other Acts Amendment Act 2017, No. 37/2017

Assent Date: 29.8.17
Commencement Date: Ss 17, 18 on 1.10.17: s. 2(3)
CurrentState: This information relates only to the provision/s amending the Evidence Act 2008

Justice Legislation Amendment (Court Security, Juries and Other Matters) Act 2017, No. 38/2017

Assent Date: 29.8.17
Commencement Date: S. 85 on 30.8.17: s. 2(1)
CurrentState: This information relates only to the provision/s amending the Evidence Act 2008

Oaths and Affirmations Act 2018, No. 6/2018

Assent Date: 27.2.18
Commencement Date: S. 65 on 1.3.19: s. 2(2)
Current State: This information relates only to the provision/s amending the Evidence Act 2008

Justice Legislation Miscellaneous Amendment Act 2018, No. 48/2018

Assent Date: 25.9.18
Commencement Date: S. 57 on 28.10.18: Special Gazette (No. 480) 16.10.18 p. 1
Current State: This information relates only to the provision/s amending the Evidence Act 2008

Children Legislation Amendment Act 2019, No. 30/2019

Assent Date: 17.9.19
Commencement Date: S. 18 on 17.2.20: Special Gazette (No. 49) 4.2.20 p. 1
Current State: This information relates only to the provision/s amending the Evidence Act 2008

Justice Legislation Miscellaneous Amendments Act 2020, No. 22/2020

Assent Date: 30.6.20
Commencement Date: Ss 18, 19 on 1.7.20: s. 2
Current State: This information relates only to the provision/s amending the Evidence Act 2008

Bail Amendment Act 2023, No. 28/2023

Assent Date: 24.10.23
Commencement Date: S. 68 on 25.3.24: s. 2(2)
Current State: This information relates only to the provision/s amending the Evidence Act 2008

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3   Explanatory details

No entries at date of publication.

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