Evidence Act 2011 (ACT)
Evidence Act 2011
A2011-12
Republication No 13
Effective: 26 April 2024
Republication date: 26 April 2024
Last amendment made by A2024‑12
About this republication
The republished law
This is a republication of the Evidence Act 2011 (including any amendment made under the Legislation Act 2001, part 11.3 (Editorial changes)) as in force on 26 April 2024. It also includes any commencement, amendment, repeal or expiry affecting this republished law to 26 April 2024.
The legislation history and amendment history of the republished law are set out in endnotes 3 and 4.
Kinds of republications
The Parliamentary Counsel’s Office prepares 2 kinds of republications of ACT laws (see the ACT legislation register at type="disc">
authorised republications to which the Legislation Act 2001 applies
unauthorised republications.
The status of this republication appears on the bottom of each page.
Editorial changes
The Legislation Act 2001, part 11.3 authorises the Parliamentary Counsel to make editorial amendments and other changes of a formal nature when preparing a law for republication. Editorial changes do not change the effect of the law, but have effect as if they had been made by an Act commencing on the republication date (see Legislation Act 2001, s 115 and s 117). The changes are made if the Parliamentary Counsel considers they are desirable to bring the law into line, or more closely into line, with current legislative drafting practice.
This republication includes amendments made under part 11.3 (see endnote 1).
Uncommenced provisions and amendments
If a provision of the republished law has not commenced, the symbol U appears immediately before the provision heading. Any uncommenced amendments that affect this republished law are accessible on the ACT legislation register ( For more information, see the home page for this law on the register.
Modifications
If a provision of the republished law is affected by a current modification, the symbol M appears immediately before the provision heading. The text of the modifying provision appears in the endnotes. For the legal status of modifications, see the Legislation Act 2001, section 95.
Penalties
At the republication date, the value of a penalty unit for an offence against this law is $160 for an individual and $810 for a corporation (see Legislation Act 2001, s 133).
Evidence Act 2011
Contents
Page
Chapter 1 Preliminary
Part 1.1 Formal matters
1 Name of Act 2
3 Dictionary 2
3A Numbering 3
3B Notes 3
Part 1.2 Application of this Act
4 Courts and proceedings to which Act applies 4
5 Extended application of certain provisions 5
6 Territories 5
7 Act binds Crown 5
8 Operation of other Acts 5
8AOffences against Act—application of Criminal Code etc 6
9 Application of common law and equity 6
10 Parliamentary privilege preserved 7
11 General powers of a court 7
Chapter 2 Giving and presenting evidence
Part 2.1 Witnesses
Division 2.1.1 Competence and compellability of witnesses
12 Competence and compellability 8
13 Competence—lack of capacity 8
14 Compellability—reduced capacity 10
15 Compellability—Sovereign and others 10
16 Competence and compellability—judges and jurors 11
17 Competence and compellability—defendants in criminal proceedings 11
18 Compellability of domestic partners and others in criminal proceedings generally 11
19 Compellability of domestic partners and others in certain criminal proceedings 13
20 Comment on failure to give evidence 14
Division 2.1.2 Oaths and affirmations
21 Sworn evidence of witnesses to be on oath or affirmation 15
22 Interpreters and intermediaries to act on oath or affirmation 15
23 Choice of oath or affirmation 16
24 Requirements for oaths 16
24A Alternative oath 17
Division 2.1.3 General rules about giving evidence
26 Court’s control over questioning of witnesses 17
27 Parties may question witnesses 17
28 Order of examination-in-chief, cross-examination and re‑examination 18
29 Manner and form of questioning witnesses and their responses 18
30 Interpreters 18
31 Deaf and mute witnesses 19
32 Attempts to revive memory in court 19
33 Evidence given by police officers 20
34 Attempts to revive memory out of court 21
35 Effect of calling for production of documents 21
36 Person may be examined without subpoena or other process 21
Division 2.1.4 Examination-in-chief and re‑examination
37 Leading questions 22
38 Unfavourable witnesses 23
39 Limits on re-examination 24
Division 2.1.5 Cross-examination
40 Witness called in error 24
41 Improper questions 25
42 Leading questions 26
43 Prior inconsistent statements of witnesses 27
44 Previous representations of other people 28
45 Production of documents 29
46 Leave to recall witnesses 30
Part 2.2 Documents
47 Definitions—pt 2.2 31
48 Proof of contents of documents 31
49 Documents in foreign countries 33
50 Proof of voluminous or complex documents 33
51 Original document rule abolished 34
Part 2.3 Other evidence
52 Presenting of other evidence not affected 35
53 Views 35
54 Views to be evidence 36
Chapter 3 Admissibility of evidence
Part 3.1 Relevance
55 Relevant evidence 39
56 Relevant evidence to be admissible 39
57 Provisional relevance 39
58 Inferences as to relevance 40
Part 3.2 Hearsay
Division 3.2.1 The hearsay rule
59 The hearsay rule—exclusion of hearsay evidence 41
60 Exception—evidence relevant for a non-hearsay purpose 42
61 Exceptions to the hearsay rule dependent on competency 43
Division 3.2.2 First-hand hearsay
62 Restriction to first-hand hearsay 43
63 Exception—civil proceedings if maker not available 44
64 Exception—civil proceedings if maker available 44
65 Exception—criminal proceedings if maker not available 45
66 Exception—criminal proceedings if maker available 48
66A Exception—contemporaneous statements about a person’s health etc 49
67 Notice to be given 49
68 Objections to tender of hearsay evidence in civil proceedings if maker available 51
Division 3.2.3 Other exceptions to the hearsay rule
69 Exception—business records 51
70 Exception—contents of tags, labels and writing 53
71 Exception—electronic communications 53
72 Exception—Aboriginal and Torres Strait Islander traditional laws and customs 54
73 Exception—reputation as to relationships and age 54
74 Exception—reputation of public or general rights 55
75 Exception—interlocutory proceedings 55
Part 3.3 Opinion
76 The opinion rule 56
77 Exception—evidence relevant otherwise than as opinion evidence 57
78 Exception—lay opinions 57
78A Exception—Aboriginal and Torres Strait Islander traditional laws and customs 57
79 Exception—opinions based on specialised knowledge 57
80 Ultimate issue and common knowledge rules abolished 58
Part 3.4 Admissions
81 Hearsay and opinion rules—exception for admissions and related representations 59
82 Exclusion of evidence of admissions that is not first‑hand 59
83 Exclusion of evidence of admissions as against third parties 60
84 Exclusion of admissions influenced by violence and certain other conduct 60
85 Criminal proceedings—reliability of admissions by defendants 61
86 Exclusion of records of oral questioning 62
87 Admissions made with authority 62
88 Proof of admissions 63
89 Evidence of silence 63
90 Discretion to exclude admissions 64
Part 3.5 Evidence of judgments and convictions
91 Exclusion of evidence of judgments and convictions 65
92 Exceptions 65
93 Savings 66
Part 3.6 Tendency and coincidence
94 Application—pt 3.6 67
95 Use of evidence for other purposes 67
96 Failure to act 68
97 The tendency rule 68
97A Admissibility of tendency evidence in proceedings involving child sexual offences 69
98 The coincidence rule 71
99 Requirements for notices 72
100 Court may dispense with notice requirements 72
101 Further restrictions on tendency evidence and coincidence evidence presented by prosecution 73
Part 3.7 Credibility
Division 3.7.1 Credibility evidence
101A Credibility evidence 74
Division 3.7.2 Credibility of witnesses
102 The credibility rule 74
103 Exception—cross‑examination as to credibility 75
104 Further protections—cross‑examination as to credibility 75
106 Exception—rebutting denials by other evidence 76
108 Exception—re‑establishing credibility 77
Division 3.7.3 Credibility of people who are not witnesses
108A Admissibility of evidence of credibility of person who has made a previous representation 78
108B Further protections—previous representations of an accused who is not a witness 78
Division 3.7.4 People with specialised knowledge
108C Exception—evidence of people with specialised knowledge 79
Part 3.8 Character
109 Application—pt 3.8 81
110 Evidence about character of accused people 81
111 Evidence about character of co-accused 81
112 Leave required to cross-examine about character of accused or co-accused 82
Part 3.9 Identification evidence
113 Application—pt 3.9 83
114 Exclusion of visual identification evidence 83
115 Exclusion of evidence of identification by pictures 85
116 Directions to jury 87
Part 3.10 Privileges
Division 3.10.1 Client legal privilege
117 Definitions—div 3.10.1 88
118 Legal advice 90
119 Litigation 90
120 Unrepresented parties 91
121 Loss of client legal privilege—generally 91
122 Loss of client legal privilege—consent and related matters 91
123 Loss of client legal privilege—defendants 93
124 Loss of client legal privilege—joint clients 94
125 Loss of client legal privilege—misconduct 94
126 Loss of client legal privilege—related communications and documents 95
Division 3.10.1A Professional confidential relationship privilege
126A Definitions—div 3.10.1A 96
126B Exclusion of evidence of protected confidences 97
126C Loss of professional confidential relationship privilege—consent 98
126D Loss of professional confidential relationship privilege—misconduct 99
126E Ancillary orders 99
126F Application—div 3.10.1A 99
Division 3.10.1C Journalist privilege
126J Definitions—div 3.10.1C 100
126K Journalist privilege relating to informant’s identity 101
126L Application—div 3.10.1C 101
Division 3.10.2 Other privileges
127 Religious confessions 102
128 Privilege in relation to self-incrimination in other proceedings 103
128A Privilege in relation to self-incrimination—exception for certain orders etc 106
Division 3.10.3 Evidence excluded in the public interest
129 Exclusion of evidence of reasons for judicial etc decisions 109
130 Exclusion of evidence of matters of state 110
131 Exclusion of evidence of settlement negotiations 112
Division 3.10.4 General
131A Application of div 3.10.4 to preliminary proceedings of courts 115
132 Court to inform of rights to make applications and objections 116
133 Court may inspect etc documents 116
134 Inadmissibility of evidence that must not be presented or given 116
Part 3.11 Discretionary and mandatory exclusions
135 General discretion to exclude evidence 117
136 General discretion to limit use of evidence 117
137 Exclusion of prejudicial evidence in criminal proceedings 117
138 Exclusion of improperly or illegally obtained evidence 117
139 Cautioning of people 119
Chapter 4 Proof
Part 4.1 Standard of proof
140 Civil proceedings—standard of proof 121
141 Criminal proceedings—standard of proof 121
142 Admissibility of evidence—standard of proof 122
Part 4.2 Judicial notice
143 Matters of law 123
144 Matters of common knowledge 124
145 Certain Crown certificates 124
Part 4.3 Facilitation of proof
Division 4.3.1 General
146 Evidence produced by processes, machines and other devices 125
147 Documents produced by processes, machines and other devices in the course of business 125
148 Evidence of certain acts of justices, Australian lawyers and notaries public 126
149 Attestation of documents 127
150 Seals and signatures 127
151 Seals of bodies established under State law 128
152 Documents produced from proper custody 129
Division 4.3.2 Matters of official record
153 Gazettes and other official documents 129
154 Documents published by authority of Parliaments etc 131
155 Evidence of official records 131
155A Evidence of Commonwealth documents 132
156 Public documents 132
157 Public documents relating to court processes 133
158 Evidence of certain public documents 134
159 Official statistics 135
Division 4.3.3 Matters relating to post and communications
160 Postal articles 135
161 Electronic communications 136
162 Lettergrams and telegrams 137
163 Proof of letters having been sent by Commonwealth agencies 137
Part 4.4 Corroboration
164 Corroboration requirements abolished 138
Part 4.5 Warnings and information
165 Unreliable evidence 139
165A Warnings in relation to children’s evidence 140
165B Delay in prosecution 141
Part 4.6 Ancillary provisions
Division 4.6.1 Requests to produce documents or call witnesses
166 Meaning of request—div 4.6.1 143
167 Requests may be made about certain matters 144
168 Time limits for making certain requests 144
169 Failure to comply with requests 145
Division 4.6.2 Proof of certain matters by affidavits or written statements
170 Evidence relating to certain matters 148
171 People who may give evidence mentioned in s 170 149
172 Evidence based on knowledge, belief or information 150
173 Notification of other parties 150
Division 4.6.3 Foreign law
174 Evidence of foreign law 150
175 Evidence of law reports of foreign countries 151
176 Questions of foreign law to be decided by judge 151
Division 4.6.4 Procedures for proving other matters
177 Certificates of expert evidence 151
178 Convictions, acquittals and other judicial proceedings 152
179 Proof of identity of convicted people—affidavits by members of State or Territory police forces 154
180 Proof of identity of convicted people—affidavits by members of Australian Federal Police 154
181 Proof of service of statutory notifications, notices, orders and directions 155
Chapter 5 Miscellaneous
182 Application of certain sections in relation to Commonwealth records 156
183 Inferences 156
184 Accused may admit matters and give consents 156
185 Faith and credit to be given to documents properly authenticated 157
186 Swearing of affidavits before justices of the peace, notaries public and lawyers 157
187 No privilege against self-incrimination for bodies corporate 157
188 Impounding documents 158
189 The voir dire 158
190 Waiver of rules of evidence 159
191 Agreements as to facts 161
192 Leave, permission or direction may be given on conditions 161
192A Advance rulings and findings 162
193 Additional powers 162
194 Witnesses failing to attend proceedings 163
195 Prohibited question not to be published 163
196 Proceedings for offences 164
197 Regulation-making power 164
Schedule 1 Oaths and affirmations 165
Dictionary167
Part 1 Definitions 168
Part 2 Other expressions 178
1 References to business 178
2 References to examination-in-chief, cross-examination and re-examination 178
3 References to civil penalties 179
4 Unavailability of people 179
5 Unavailability of documents and things 180
6 Representations in documents 181
7 Witnesses 181
8 References to documents 181
8A References to offices etc 182
9 References to laws 182
10 References to children and parents 182
Endnotes
1 About the endnotes 184
2 Abbreviation key 184
3 Legislation history 185
4 Amendment history 188
5 Earlier republications 191
Evidence Act 2011
An Act about the law of evidence
Chapter 1 Preliminary
Note 1Introductory note
This Act sets out the Territory rules of evidence. Generally speaking, the Act applies to proceedings in ACT courts and before other people or bodies required to apply the laws of evidence (see s 4).
Note 2Related legislation
This Act is in most respects uniform with the Evidence Act 1995 (Cwlth) (the Commonwealth Act) and the Evidence Act 1995 (NSW) (the NSW 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.
Part 1.1Formal matters
Name of Act
This Act is the Evidence Act 2011.
Dictionary
The dictionary at the end of this Act is part of this Act.
Note 1The dictionary at the end of this Act defines certain terms used in this Act, and includes references (signpost definitions) to other terms defined elsewhere.
For example, the signpost definition ‘Commonwealth record—see the Evidence Act 1995 (Cwlth), dictionary.’ means that the term ‘Commonwealth record’ is defined in that dictionary and the definition applies to this Act.
Note 2A definition in the dictionary (including a signpost definition) applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).
Note 3This section differs from the Commonwealth Act and NSW Act.
3ANumbering
(1)To maintain consistent section numbering between this Act and the Commonwealth Act—
(a)if the Commonwealth Act contains a section that is not included in this Act—the section number and heading appearing in the Commonwealth Act are included in this Act despite the omission of the body of the section; and
(b)if this Act contains a section that is not included in the Commonwealth Act—the section is numbered so as to maintain consistency in numbering between sections common to both Acts.
(2)A section number and heading mentioned in subsection (1) (a) form part of this Act.
(3)If a provision of this Act (other than a section) is numbered differently from the equivalent provision of the Commonwealth Act, the provision of this Act may be referred to using the number of the equivalent provision of the Commonwealth Act.
Note 1A note appears under each heading mentioned in s (1) (a) describing the omitted section of the Commonwealth Act.
Note 2A note appears under each section mentioned in s (1) (b) highlighting the non-appearance of an equivalent section in the Commonwealth Act.
Note 3The Commonwealth Act and NSW Act do not include this section.
3BNotes
A note included in this Act is explanatory and is not part of this Act.
Note 1See the Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.
Note 2The Commonwealth Act and NSW Act do not include this section.
Part 1.2Application of this Act
Courts and proceedings to which Act applies
(1)This Act applies to all proceedings in an ACT 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 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 states in the direction that the law of evidence applies only in relation to stated matters—the direction has effect accordingly.
(3)The court must make a direction under this section if—
(a)a party to the proceeding applies for the direction in relation to the proof of a fact; and
(b)in the court’s opinion, the proceeding involves proof of the fact, and the fact is or will be significant in deciding a sentence to be imposed in the proceeding.
(4)The court must make a direction under this section if the court considers it appropriate in the interests of justice.
Note This section differs from the Commonwealth Act, s 4.
Extended application of certain provisions
NoteThe Commonwealth Act includes a provision extending the application of stated provisions of the Commonwealth Act to proceedings in all Australian courts.
Territories
NoteThe Commonwealth Act includes a provision extending that Act to each external territory.
Act binds Crown
NoteThe Commonwealth Act and NSW Act include a provision binding the Crown. The provision is unnecessary in the ACT (see Legislation Act, s 121).
Operation of other Acts
This Act does not affect the operation of the provisions of any other Act.
Examples
1 Bail Act 1992, s 19 (2)
2 Evidence (Miscellaneous Provisions) Act 1991, ch 5
NoteThis section differs from the Commonwealth Act, s 8. Differences include additional subsections relating to the operation of the Corporations Act and the Australian Securities and Investments Commission Act 2001 (Cwlth).
8AOffences against Act—application of Criminal Code etc
Other legislation applies in relation to offences against this Act.
Note 1Criminal Code
The Criminal Code, ch 2 applies to all offences against this Act (see Code, pt 2.1).
The chapter sets out the general principles of criminal responsibility (including burdens of proof and general defences), and defines terms used for offences to which the Code applies (eg conduct, intention, recklessness and strict liability).
Note 2Penalty units
The Legislation Act, s 133 deals with the meaning of offence penalties that are expressed in penalty units.
Note 3This section differs from the Commonwealth Act, s 8A.
Application 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 a principle or rule mentioned in subsection (1) 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 the 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.
NoteThis section differs from the Commonwealth Act, s 9. That section preserves the written and unwritten laws of States and Territories in relation to certain matters.
Parliamentary 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) (Compellability—Sovereign and others) does not affect, and is in addition to, the law relating to those privileges.
General 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 in relation to abuse of process in a proceeding are not affected.
Chapter 2Giving and presenting evidence
NoteThis chapter is about ways in which evidence is given and presented.
· Pt 2.1 is about evidence from witnesses.
· Pt 2.2 is about documentary evidence.
· Pt 2.3 is about other forms of evidence.
Part 2.1Witnesses
Division 2.1.1 Competence and compellability of witnesses
Competence 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.
Competence—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.
NoteSee s 30 and s 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 evidence about the fact if the person does not have the capacity to understand that, in giving evidence, the person is under an obligation to give truthful evidence.
(4)A person who is not competent to give sworn evidence about a fact may, subject to subsection (5), be competent to give unsworn evidence about the fact.
(5)A person who, because of subsection (3), is not competent to give sworn evidence is competent to give unsworn evidence if the court has told the person that—
(a)it is important to tell the truth; and
(b)the person may be asked questions that the person does not know, or cannot remember, the answer to, and that the person should tell the court if this happens; and
(c)the person may be asked questions that suggest certain statements are true or untrue and that the person should agree with the statements that the person believes are true and should feel no pressure to agree with statements that the person 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 only because, before the witness finishes giving evidence, the witness dies or ceases to be competent to give evidence.
(8)For the purpose of deciding 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.
Compellability—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 the matter has been given, or will be able to be given, from 1 or more other people or sources.
Compellability—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 the house or a joint sitting of the Parliament; or
(b)if the member is a member of a committee of the house or the Parliament—a meeting of the committee.
Competence and compellability—judges and jurors
(1)A person who is a judge or juror in a proceeding is not competent to give evidence in the proceeding.
(2)However, a juror is competent to give evidence in the proceeding about matters affecting conduct of the proceeding.
(3)A person who is or was a judge in an Australian or overseas proceeding is not compellable to give evidence about the proceeding unless the court gives leave.
Competence and compellability—defendants in criminal proceedings
(1)This section applies only in a criminal proceeding.
(2)A defendant is not competent to give evidence as a witness for the prosecution.
(3)An associated defendant is not compellable to give evidence for or against a defendant in a criminal proceeding unless the associated defendant is being tried separately from the defendant.
(4)If a witness is an associated defendant who is being tried jointly with the defendant in the proceeding, the court must satisfy itself (if there is a jury, in the jury’s absence) that the witness is aware of the effect of subsection (3).
NoteAssociated defendant—see the dictionary.
Compellability of domestic partners 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 domestic partner, parent or child of a defendant may object to being required—
(a)to give evidence; or
(b)to give evidence of a communication between the person and the defendant;
as a witness for the prosecution.
(3)The objection must be made before the person gives the evidence or as soon as practicable after the person becomes aware of the right 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 must 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 must hear and decide any objection under this section in the jury’s absence.
(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 defendant, 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 subsection (6), it must take into account the following:
(a)the nature and gravity of the offence for which the defendant 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 about 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 defendant 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 defendant.
(8)If an objection under this section has been decided, 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.
Compellability of domestic partners and others in certain criminal proceedings
Section 18 does not apply in a proceeding for an offence against or mentioned in the following provisions:
(a)an offence against the Crimes Act 1900, parts 2 to 5, that is an offence against a person under 16 years old;
(b)an offence against the following provisions of the Children and Young People Act 2008:
(i)section 423 (Offence—contravene care and protection order);
(ii)section 789 (Offence—contravene employment prohibition notice);
(iii)section 791 (Offence—contravene employment conditions notice);
(iv)section 803 (Offence—employment of child or young person under 15 years old in high risk employment);
(v)section 804 (Offence—contravene condition of permit);
(c)an offence if the conduct making up the offence is family violence under the Family Violence Act 2016.
NoteThis section differs from the Commonwealth Act and NSW Act, s 19.
Comment on failure to give evidence
(1)This section applies only in a criminal proceeding for an indictable offence.
(2)The judge or any party (other than the prosecutor) may comment on a failure of a defendant to give evidence.
(3)However, unless the comment is made by another defendant in the proceeding, the comment must not suggest that the defendant failed to give evidence because the defendant was, or believed that the defendant was, guilty of the offence.
(4)The judge or any party (other than the prosecutor) may comment on a failure to give evidence by a person who, at the time of the failure, was—
(a)the defendant’s domestic partner; or
(b)a parent or child of the defendant.
(5)However, unless the comment is made by another defendant in the proceeding, a comment mentioned in subsection (4) must not suggest that the domestic partner, parent or child failed to give evidence because—
(a)the defendant was guilty of the offence; or
(b)the domestic partner, parent or child believed that the defendant was guilty of the offence.
(6)If—
(a)2 or more people are being tried together for an indictable offence; and
(b)comment is made by any of them on the failure of any of them or of the domestic partner, or a parent or child, of any of them to give evidence;
the judge may, in addition to commenting on the failure to give evidence, comment on any comment mentioned in paragraph (b).
Division 2.1.2 Oaths and affirmations
Sworn evidence of witnesses to be on oath or affirmation
(1)A witness in a proceeding must 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 (Competence—lack of capacity).
(3)A person who is called only to produce a document or thing to the court need not take an oath or make an affirmation before doing so.
(4)The witness must take the oath, or make the affirmation, in accordance with the appropriate form in schedule 1 or in a similar form.
(5)An affirmation has the same effect for all purposes as an oath.
Interpreters and intermediaries to act on oath or affirmation
(1)A person must take an oath or make an affirmation before acting as an interpreter or intermediary in a proceeding.
(2)An oath taken, or an affirmation made, by a person before acting as an interpreter or intermediary on a day is taken for subsection (1) to be an oath taken or affirmation made by the person for the purposes of any subsequent proceeding in the court on the day the person acts in that capacity.
(3)The person must take the oath, or make the affirmation, in accordance with the appropriate form in schedule 1 or in a similar form.
(4)An affirmation has the same effect for all purposes as an oath.
NoteThe Commonwealth Act does not include intermediaries and does not include s (2).
Choice of oath or affirmation
(1)A person who is to be a witness or act as an interpreter or intermediary in a proceeding may choose whether to take an oath or make an affirmation.
(2)The court must tell the person that the person has this choice, unless the court is satisfied that the person has already been told or knows about having 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.
NoteThe Commonwealth Act does not include intermediaries, and s (2) differs from the Commonwealth Act.
Requirements for oaths
(1)It is not necessary that a religious text be used in taking an oath.
(2)An oath is effective for 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 regulation.
NoteThe Commonwealth Act does not include an equivalent provision to s 24A.
Division 2.1.3 General rules about giving evidence
Court’s control over questioning of witnesses
The court may make the orders 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.
Parties may question witnesses
Except as provided by this Act, a party may question any witness.
Order of examination-in-chief, cross-examination and re‑examination
Unless the court otherwise directs—
(a)cross-examination of a witness must not take place before the examination-in-chief of the witness; and
(b)re-examination of a witness must not take place before all other parties who wish to do so have cross-examined the witness.
Manner 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)The court may, on its own motion or on the application of the party that called the witness, direct that the witness give evidence completely or partly in narrative form.
(3)The 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.
Interpreters
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.
Deaf 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 about 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—
(a)through an interpreter under section 30; or
(b)with the assistance of an intermediary under the Evidence (Miscellaneous Provisions) Act 1991, chapter 1B (Witness intermediaries—criminal proceedings).
NoteThe Commonwealth Act does not include intermediaries.
Attempts to revive memory in court
(1)A witness must not, in the course of giving evidence, use a document to try to revive the witness’s 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 must take into account—
(a)whether the witness will be able to recall the fact or opinion adequately without using the document; and
(b)whether the part of the document that 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 the witness’s memory; or
(ii)was, at that time, found by the witness to be accurate.
(3)If a witness has, while giving evidence, used a document to try to revive the witness’s memory about a fact or opinion, the witness may, with the leave of the court, read aloud, as part of the witness’s evidence, the part of the document that relates to the fact or opinion.
(4)The court must, on the request of a party, give the directions the court thinks fit to ensure that the part of the document that relates to the proceeding is produced to the party.
Evidence given by police officers
(1)Despite section 32, in a 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 given in that way unless—
(a)the statement was made by the police officer at the time of or soon after the events mentioned in the statement happened; 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 or legal counsel a reasonable time before the hearing of the evidence for the prosecution.
(3)A reference in this section to a police officer includes a reference to a person who was a police officer at the time the statement was made.
Attempts to revive memory out of court
(1)The court may, on the request of a party, give the directions that are appropriate to ensure that stated documents and things used by a witness otherwise than while giving evidence to try to revive the witness’s 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 about which the witness tried to revive the witness’s memory if, without reasonable excuse, the directions have not been complied with.
Effect of calling for production of documents
(1)A party must not 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 produced.
(2)The party who produces a document 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.
Person 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 served on the person.
(2)A person ordered to give evidence or to produce documents or things is subject to the same penalties and liabilities as if the person had been served with 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 2.1.4 Examination-in-chief and re‑examination
Leading 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, legal counsel 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 about which evidence has been, or is intended to be, given.
(2)Unless the court otherwise directs, subsection (1) does not apply in a civil proceeding 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 the 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.
NoteLeading question—see the dictionary.
Unfavourable 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 this Act (other than section 39 (Limits on re‑examination)).
(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.
NoteThe rules about admissibility of evidence relevant only to credibility are set out in pt 3.7.
(4)Questioning under this section must take place before the other parties cross-examine the witness, unless the court otherwise directs.
(5)If the court gives a direction under subsection (4), the order in which the parties question the witness must be as the court directs.
(6)Without limiting the matters that the court may take into account in deciding whether to give leave or a direction under this section, it must take into account—
(a)whether the party gave notice at the earliest opportunity of the party’s intention to seek leave; and
(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 someone else; and
(b)the party is a witness in the proceeding.
Limits 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 2.1.5 Cross-examination
Witness called in error
A party must not cross-examine a witness who has been called in error by another party and has not been questioned by the other party about a matter relevant to a question to be decided in the proceeding.
Improper questions
(1)The court must disallow a question put to a witness in cross‑examination, or tell the witness that it need not be answered, if the court is of the opinion that the question (a disallowable question)—
(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).
(2)Without limiting the matters the court may take into account for subsection (1), it must take into account—
(a)any relevant condition or characteristic of the witness of which the court is, or is made, aware, including age, education, ethnic and cultural background, gender, language background and skills, level of maturity and understanding and personality; and
(b)any mental, intellectual or physical disability of which the court is, or is made, aware and to which the witness is, or appears to be, subject; and
(c)the context in which the question is put, including—
(i)the nature of the proceeding; and
(ii)in a criminal proceeding—the nature of the offence to which the proceeding relates; and
(iii)the relationship (if any) between the witness and any other party to the proceeding.
(3)A question is not a disallowable question only 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.
(4)A party may object to a question put to a witness on the ground that it is a disallowable question.
(5)However, the duty imposed on the court by this section applies whether or not an objection is raised to a particular question.
(6)A failure by the court to disallow a question under this section, or to tell 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.
NoteA person must not, without the express permission of the court, print or publish any question that the court has disallowed under this section (see s 195).
Leading 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 a direction, it must 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 must disallow the question, or direct the witness not to answer it, if the court is satisfied that the facts would be better ascertained if leading questions were not used.
(4)This section does not limit the court’s power to control leading questions.
NoteLeading question—see the dictionary.
Prior 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 the witness has made a prior inconsistent statement, the cross-examiner must not present evidence of the statement otherwise than from the witness unless, in the cross-examination, the cross-examiner—
(a)told the witness 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 the part of the statement that is inconsistent with the witness’s evidence.
(3)For the purpose of presenting evidence of the statement, a party may re-open the party’s case.
Previous representations of other people
(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 people present at the cross-examination hearing the contents;
(c)the witness must be asked whether, having examined (or heard) the contents of the document, the witness stands by the evidence that the witness has given;
(d)neither the cross-examiner nor the witness may identify the document or disclose any of its contents.
(4)A document used in a way mentioned in subsection (3) may be marked for identification.
Production 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 someone else that is recorded in a document.
(2)If the court orders or if another party requires, the party must produce to the court or to the other party—
(a)the document; or
(b)evidence of the contents of the document that is available to the party.
(3)The court may—
(a)examine a document or evidence that has been produced under subsection (2); 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.
Leave 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 presented by another party, and on which the witness was not cross-examined, if the evidence 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 presented by another party includes a reference to an inference drawn from, or that the party intends to draw from, the evidence.
Part 2.2Documents
Definitions—pt 2.2
(1)For this part, a document in question is a document as to the contents of which it is sought to present evidence.
(2)For this part, a reference 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.
Proof of contents of documents
(1)A party may present evidence of the contents of a document in question by tendering the document in question or by any 1 or more of the following methods:
(a)presenting 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 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 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 the 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 the government printer or the government or official printer of the Commonwealth, a State or another Territory; or
(ii)by authority of the government of the Territory, the Commonwealth, a State, another Territory or a foreign country; or
(iii)by authority of an Australian Parliament, a house of an Australian Parliament or a committee of an Australian Parliament or of a house 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 presents evidence of the contents of a document under subsection (1) (a), the evidence may only be used—
(a)in relation to the party’s case against the other party who made the admission; or
(b)in relation to the other party’s case against the party who presented the evidence in that way.
(4)A party may present 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)presenting evidence from a witness of the contents of the document in question.
Note 1The dictionary, pt 2, s 5 is about the availability of documents.
Note 2The Commonwealth Act, s 182 gives the Commonwealth Act, s 48 a wider application in relation to Commonwealth records and certain Commonwealth documents.
Documents 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 presents evidence of the contents of the document in question has, not less than 28 days (or any other period prescribed by regulation or by rules of court) before the day on which the evidence is presented, served on each other party a copy of the document proposed to be tendered; or
(b)the court directs that it must apply.
NoteThe Commonwealth Act, s 182 gives the Commonwealth Act, s 49 a wider application in relation to Commonwealth records and certain Commonwealth documents.
Proof of voluminous or complex documents
(1)The court may, on the application of a party, direct that the party may present 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 a direction under subsection (1) if the party seeking to present 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 presented in accordance with a direction under this section.
Original document rule abolished
The principles and rules of common law that relate to the means of proving the contents of documents are abolished.
NoteThe Commonwealth Act, s 182 gives the provisions of the Commonwealth Act, pt 2.2 a wider application in relation to Commonwealth records and certain Commonwealth documents.
Part 2.3Other evidence
Presenting 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 presented in a way other than by witnesses giving evidence or documents being tendered in evidence.
Views
(1)A judge may, on application, order that a demonstration, experiment or inspection be held.
(2)A judge must not make an order unless 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 must 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) must not 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.
Views 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 3Admissibility of evidence
NoteThis chapter is about whether evidence presented in a proceeding is admissible.
· Pt 3.1 sets out the general inclusionary rule that relevant evidence is admissible.
· Pt 3.2 is about the exclusion of hearsay evidence, and exceptions to the hearsay rule.
· Pt 3.3 is about exclusion of opinion evidence, and exceptions to the opinion rule.
· Pt 3.4 is about admissions and the extent to which they are admissible as exceptions to the hearsay rule and the opinion rule.
· Pt 3.5 is about exclusion of certain evidence of judgments and convictions.
· Pt 3.6 is about exclusion of evidence of tendency or coincidence, and exceptions to the tendency rule and the coincidence rule.
· Pt 3.7 is about exclusion of evidence relevant only to credibility, and exceptions to the credibility rule.
· Pt 3.8 is about character evidence and the extent to which it is admissible as exceptions to the hearsay rule, the opinion rule, the tendency rule and the credibility rule.
· Pt 3.9 is about the requirements that must be satisfied before identification evidence is admissible.
· Pt 3.10 is about the various categories of privilege that may prevent evidence being presented.
· Pt 3.11 provides for the discretionary and mandatory exclusion of evidence even if it would otherwise be admissible.
The following diagram shows how this chapter applies to particular evidence:
Is the evidence relevant? (See pt 3.1).
►
THE
EVIDENCE IS
NOT
ADMISSIBLENo
▼
Yes Does the hearsay rule apply? (See pt 3.2. See also pt 3.4 on admissions and pt 3.8 on character evidence.)
►
Yes
▼
No Does the opinion rule apply? (See pt 3.3.
See also pt 3.4 on admissions and pt 3.8 on character evidence.)
►
Yes
▼
No Does the evidence contravene the rule about evidence of judgments and convictions? (See pt 3.5.)
►
Yes
▼
No Does the tendency rule or the coincidence rule apply? (See pt 3.6. See also pt 3.8 on character evidence.)
►
Yes
▼
No Does the credibility rule apply? (See pt 3.7. See also pt 3.8 on character evidence.)
►
Yes
▼
No Does the evidence contravene the rules about identification evidence? (See pt 3.9.)
►
Yes
▼
No Does a privilege apply? (See pt 3.10.)
►
Yes
▼
No Should the evidence be excluded or must it be excluded? (See pt 3.11.)
▼
►
Yes No THE EVIDENCE IS ADMISSIBLE Part 3.1Relevance
Relevant evidence
(1)The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
(2)In particular, evidence is not taken to be irrelevant only because it relates only to—
(a)the credibility of a witness; or
(b)the admissibility of other evidence; or
(c)a failure to present evidence.
Relevant evidence to be admissible
(1)Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.
(2)Evidence that is not relevant in the proceeding is not admissible.
Provisional relevance
(1)If the decision about the question whether evidence presented by a party is relevant depends on the court making another finding (including a finding that the evidence is what the party claims it to be), the court may find that the evidence is relevant—
(a)if it is reasonably open to make the finding; or
(b)subject to further evidence being admitted at a later stage of the proceeding that will make it reasonably open to make the finding.
(2)Without limiting subsection (1), if the relevance of evidence of an act done by a person depends on the court making a finding that the person and 1 or more other people had, or were acting in furtherance of, a common purpose (whether to effect an unlawful conspiracy or otherwise), the court may use the evidence itself in deciding whether the common purpose existed.
Inferences as to relevance
(1)If a question arises as to the relevance of a document or thing, the court may examine it and may draw any reasonable inference from it, including an inference as to its authenticity or identity.
(2)Subsection (1) does not limit the matters from which inferences may properly be drawn.
Part 3.2Hearsay
Division 3.2.1 The hearsay rule
The hearsay rule—exclusion of hearsay evidence
(1)Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.
(2)For this part, a fact mentioned in subsection (1) is an asserted fact.
(3)For the purposes of deciding under subsection (1) whether it can reasonably be supposed that the person intended to assert a particular fact by the representation, the court may have regard to the circumstances in which the representation was made.
NoteSubsection (3) was inserted as a response to the decision of the NSW Supreme Court in R v Hannes (2000) 158 FLR 359.
(4)Subsection (1) does not apply to evidence of a representation contained in a certificate or other document given or made under a regulation made under an Act other than this Act to the extent to which the regulation provides that the certificate or other document has evidentiary effect.
NoteSpecific exceptions to the hearsay rule are as follows:
· evidence relevant for a non-hearsay purpose (s 60)
· first-hand hearsay:
–civil proceedings, if the maker of the representation is unavailable (s 63) or available (s 64)
–criminal proceedings, if the maker of the representation is unavailable (s 65) or available (s 66)
· contemporaneous statements about a person’s health etc (s 66A)
· business records (s 69)
· tags and labels (s 70)
· electronic communications (s 71)
· Aboriginal and Torres Strait Islander traditional laws and customs (s 72)
· marriage, family history or family relationships (s 73)
· public or general rights (s 74)
· use of evidence in interlocutory proceedings (s 75)
· admissions (s 81)
· representations about employment or authority (s 87 (2))
· exceptions to the rule excluding evidence of judgments and convictions (s 92 (3))
· character of and expert opinion about accused people (s 110 and s 111).
Other provisions of this Act, or of other laws, may operate as further exceptions.
Examples
1 D is the defendant in a sexual assault trial. W has made a statement to the police that X told W that X had seen D leave a night club with the victim shortly before the sexual assault is alleged to have happened. Unless an exception to the hearsay rule applies, evidence of what X told W cannot be given at the trial.
2 P had told W that the handbrake on W’s car did not work. Unless an exception to the hearsay rule applies, evidence of that statement cannot be given by P, W or anyone else to prove that the handbrake was defective.
3 W had bought a video cassette recorder and written down its serial number on a document. Unless an exception to the hearsay rule applies, the document is inadmissible to prove that a video cassette recorder later found in D’s possession was the video cassette recorder bought by W.
Exception—evidence relevant for a non-hearsay purpose
(1)The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact.
(2)This section applies whether or not the person who made the representation had personal knowledge of the asserted fact (within the meaning of section 62 (2) (Restriction to first-hand hearsay)).
NoteSubsection (2) was inserted as a response to the decision of the High Court in Lee v The Queen (1998) 195 CLR 594.
(3)However, this section does not apply in a criminal proceeding to evidence of an admission.
NoteThe admission might still be admissible under s 81 as an exception to the hearsay rule if it is first-hand hearsay—see s 82.
Exceptions to the hearsay rule dependent on competency
(1)This part does not enable use of a previous representation to prove the existence of an asserted fact if, when the representation was made, the person who made it was not competent to give evidence about the fact because of section 13 (1) (Competence—lack of capacity).
(2)This section does not apply to a contemporaneous representation made by a person about the person’s health, feelings, sensations, intention, knowledge or state of mind.
NoteFor the admissibility of contemporaneous representations, see s 66A.
(3)For this section, it is presumed, unless the contrary is proved, that when the representation was made the person who made it was competent to give evidence about the asserted fact.
Division 3.2.2 First-hand hearsay
Restriction to first-hand hearsay
(1)For this division (other than in subsection (2)), a previous representation is a previous representation that was made by a person who had personal knowledge of an asserted fact.
(2)A person has personal knowledge of an asserted fact if the person’s knowledge of the fact was, or might reasonably be supposed to have been, based on something that the person saw, heard or otherwise perceived, other than a previous representation made by someone else about the fact.
(3)For section 66A (Exception—contemporaneous statements about a person’s health etc), a person has personal knowledge of the asserted fact if it is a fact about the person’s health, feelings, sensations, intention, knowledge or state of mind at the time the representation mentioned in the section was made.
Exception—civil proceedings if maker not available
(1)This section applies in a civil proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.
(2)The hearsay rule does not apply to—
(a)evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made; or
(b)a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation.
Note 1Section 67 imposes notice requirements relating to this subsection.
Note 2The dictionary, pt 2, s 4 is about the availability of people.
Exception—civil proceedings if maker available
(1)This section applies in a civil proceeding if a person who made a previous representation is available to give evidence about an asserted fact.
(2)The hearsay rule does not apply to—
(a)evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made; or
(b)a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation;
if it would cause undue expense or undue delay, or would not be reasonably practicable, to call the person who made the representation to give evidence.
Note 1Section 67 imposes notice requirements relating to this subsection.
Note 2Section 68 is about objections to notices that relate to this subsection.
(3)If the person who made the representation has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by—
(a)the person; or
(b)a person who saw, heard or otherwise perceived the representation being made.
(4)A document containing a representation to which subsection (3) applies must not be tendered before the conclusion of the examination-in-chief of the person who made the representation, unless the court gives leave.
NoteThe dictionary, pt 2, s 4 is about the availability of people.
Exception—criminal proceedings if maker not available
(1)This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.
(2)The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation—
(a)was made under a duty to make that representation or to make representations of that kind; or
(b)was made when or shortly after the asserted fact happened and in circumstances that make it unlikely that the representation is a fabrication; or
(c)was made in circumstances that make it highly probable that the representation is reliable; or
(d)was—
(i)against the interests of the person who made it at the time it was made; and
(ii)made in circumstances that make it likely that the representation is reliable.
NoteSection 67 imposes notice requirements relating to this subsection.
(3)The hearsay rule does not apply to evidence of a previous representation made in the course of giving evidence in an Australian or overseas proceeding if, in the proceeding, the defendant in the proceeding to which this section is being applied—
(a)cross-examined the person who made the representation about it; or
(b)had a reasonable opportunity to cross-examine the person who made the representation about it.
NoteSection 67 imposes notice requirements relating to this subsection.
(4)If there is more than 1 defendant in the criminal proceeding, evidence of a previous representation that—
(a)is given in an Australian or overseas proceeding; and
(b)is admitted into evidence in the criminal proceeding because of subsection (3);
cannot be used against a defendant who did not cross-examine, and did not have a reasonable opportunity to cross-examine, the person about the representation.
(5)For subsection (3) and subsection (4), a defendant is taken to have had a reasonable opportunity to cross-examine a person if the defendant was not present at a time when the cross-examination of a person might have been conducted but—
(a)could reasonably have been present at the time; and
(b)if present could have cross-examined the person.
(6)Evidence of the making of a representation to which subsection (3) applies may be presented by producing a transcript, or a recording, of the representation that is authenticated by—
(a)the person to whom, or the court or other body to which, the representation was made; or
(b)if applicable, the registrar or other proper officer of the court or other body to which the representation was made; or
(c)the entity responsible for producing the transcript or recording.
(7)Without limiting subsection (2) (d), a representation is taken for subsection (2) (d) to be against the interests of the person who made it if it tends—
(a)to damage the person’s reputation; or
(b)to show that the person has committed an offence for which the person has not been convicted; or
(c)to show that the person is liable in an action for damages.
(8)The hearsay rule does not apply to—
(a)evidence of a previous representation presented by a defendant if the evidence is given by a person who saw, heard or otherwise perceived the representation being made; or
(b)a document tendered as evidence by a defendant so far as it contains a previous representation, or another representation to which it is reasonably necessary to refer in order to understand the representation.
NoteSection 67 imposes notice requirements relating to this subsection.
(9)If evidence of a previous representation about a matter has been presented by a defendant and has been admitted, the hearsay rule does not apply to evidence of another representation about the matter that—
(a)is presented by another party; and
(b)is given by a person who saw, heard or otherwise perceived the other representation being made.
NoteThe dictionary, pt 2, s 4 is about the availability of people.
asserted fact, for part 3.2 (Hearsay)—see section 59.
associated defendant, in relation to a defendant in a criminal proceeding, means a person against whom a prosecution has been started, 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)an entity authorised by an Australian law, or by consent of parties, to hear, receive and examine evidence; or
(f)an entity that, in exercising a function under an Australian law, is required to apply the laws of evidence.
Australian law means a law of the Commonwealth, a State or Territory.
NoteLaw—see the dictionary, pt 2.
Australian lawyer—see the Legal Profession Act 2006, dictionary.
Australian legal practitioner—see the Legal Profession Act 2006, dictionary.
Australian or overseas proceeding means a proceeding (however described) in an Australian court or foreign court.
Australian Parliament means the Legislative Assembly, the Commonwealth Parliament, a Parliament of a State or a Legislative Assembly of another Territory.
Australian practising certificate—see the Legal Profession Act 2006, dictionary.
Australian-registered foreign lawyer—see the Legal Profession Act 2006, dictionary.
NoteThe Commonwealth Act and NSW Act include a definition of Australian statistician. In the ACT, that term is defined in the Legislation Act, dictionary, pt 1.
business—see the dictionary, part 2, section 1.
case of a party means the facts in issue in relation to which the party bears the legal burden of proof.
child—see the dictionary, part 2, section 10 (1).
NoteChild is also defined in the Legislation Act, dictionary, pt 1.
civil penalty—see the dictionary, part 2, section 3.
civil proceeding means a proceeding other than a criminal proceeding.
client, for division 3.10.1 (Client legal privilege)—see section 117.
coincidence evidence means evidence of a kind mentioned in section 98 (1) that a party seeks to present for the purpose mentioned in that subsection.
coincidence rule means the rule mentioned in section 98 (1).
Commonwealth Act means the Evidence Act 1995 (Cwlth).
NoteThe Commonwealth Act does not include this definition.
Commonwealth-owned body corporate means a body corporate that, were the Commonwealth a body corporate, would, for the purposes of the Corporations Act, 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—see the Evidence Act 1995 (Cwlth), dictionary.
confidant, for division 3.10.1A (Professional confidential relationship privilege)—see section 126A (1).
confidential communication, for division 3.10.1 (Client legal privilege)—see section 117.
confidential document, for division 3.10.1 (Client legal privilege)—see section 117.
court means ACT court.
NoteThe Commonwealth Act does not include this definition.
credibility—
(a)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; and
(b)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 rule mentioned 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 the Taxation Administration Act 1953 (Cwlth), part 3.
cross-examination—see the dictionary, part 2, section 2 (2).
cross-examiner means a party who is cross-examining a witness.
NoteThe Commonwealth Act and NSW Act include a definition of de facto partner. In the ACT, the term domestic partner is used. That term is defined in the Legislation Act, s 169 (1).
document—see the dictionary, part 2, section 8.
NoteDocument is also defined in the Legislation Act, dictionary, pt 1.
document in question, for part 2.2 (Documents)—see section 47.
electronic communication—see the Electronic Transactions Act 2001, dictionary.
examination-in-chief—see the dictionary, part 2, section 2 (1).
NoteThe Commonwealth Act and NSW Act include a definition of exercise of a function. In the ACT, that term is defined in the Legislation Act, dictionary, pt 1.
fax, in relation to a document, means a copy of the document that has been reproduced by facsimile telegraphy.
NoteThe Commonwealth Act includes a definition of federal court.
foreign court means any court (including any entity authorised to take or receive evidence, whether on behalf of a court or otherwise and whether or not the entity is empowered to require the answering of questions or the production of documents) of a foreign country or part of that country.
NoteThe Commonwealth Act and NSW Act include a definition of function. In the ACT, that term is defined in the Legislation Act, dictionary, pt 1.
government or official gazette includes the gazette.
Note 1This definition differs from the Commonwealth Act and NSW Act.
Note 2The NSW Act includes definitions of Governor of a State and Governor-General. In the ACT, those terms are defined in the Legislation Act, dictionary, pt 1.
harm, for division 3.10.1A (Professional confidential relationship privilege)—see section 126A (1).
hearsay rule means the rule mentioned 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 the offence was done;
at or about the time at which the offence was committed or act was done, that is an assertion based completely 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 the assertion.
informant, for division 3.10.1C (Journalist privilege)—see section 126J.
intermediary, in relation to a proceeding, means a person appointed as an intermediary for a witness in the proceeding under the Evidence (Miscellaneous Provisions) Act 1991 chapter 1B (Witness intermediaries—criminal proceedings).
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 relation to the prevention or investigation of offences.
joint sitting means—
(a)in relation to the Commonwealth Parliament—a joint sitting of the members of the Senate and House of Representatives convened by the Governor-General under the Constitution, section 57 or convened under any Commonwealth Act; 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.
journalist, for division 3.10.1C (Journalist privilege)—see section 126J.
judge, in relation to a proceeding, means the judge, magistrate or other person before whom the proceeding is being held.
law—see the dictionary, part 2, section 9.
lawyer, for division 3.10.1 (Client legal privilege)—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.
Examples
1 in-house counsel
2 government solicitor
Legislative Assembly, of another Territory, includes any present or former Legislative Assembly of that Territory.
NoteLegislative Assembly is also defined in the Legislation Act, dictionary, pt 1.
member of the Australian Federal Police includes a special member or staff member of the Australian Federal Police.
news medium, for division 3.10.1C (Journalist privilege)—see section 126J.
NSW Act means the Evidence Act 1995 (NSW).
NoteThe Commonwealth Act and NSW Act do not include this definition.
offence means an offence against or arising under an Australian law.
opinion rule means the rule mentioned in section 76.
overseas-registered foreign lawyer—see the Legal Profession Act 2006, dictionary.
parent—see the dictionary, part 2, section 10 (2).
party, for division 3.10.1 (Client legal privilege)—see section 117.
police officer includes a member of the police force of a State or another Territory.
NotePolice officer is also defined in the Legislation Act, dictionary, pt 1.
postal article—see the Australian Postal Corporation Act 1989 (Cwlth), section 3.
previous representation—
(a)for this Act generally—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 presented; and
(b)for division 3.2.2 (First-hand hearsay) (other than section 62 (2))—see section 62.
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 witness.
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 starts, or is responsible for the conduct of, a prosecution.
protected confidence, for division 3.10.1A (Professional confidential relationship privilege)—see section 126A (1).
protected confider, for division 3.10.1A (Professional confidential relationship privilege)—see section 126A (1).
protected identity information, for division 3.10.1A (Professional confidential relationship privilege)—see section 126A (1).
public document means a document that—
(a)forms part of the records of the Commonwealth, a State or a Territory; or
(b)forms part of the records of the government of a foreign country; or
(c)forms part of the records of an entity holding office or exercising a function under or because of the Constitution, an Australian law or a law of a foreign country; or
(d)is being kept by or on behalf of an entity mentioned in paragraph (a), (b) or (c);
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 an Australian Parliament or of a house of an Australian Parliament; and
(f)a legislature of a foreign country, including a house or committee (however described) of that legislature.
re‑examination—see the dictionary, part 2, section 2 (3) and (4).
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 someone else; or
(d)a representation that for any reason is not communicated.
request, for division 4.6.1 (Requests to produce documents or call witnesses)—see section 166.
seal includes a stamp.
tendency evidence means evidence of a kind mentioned in section 97 (1) that a party seeks to present for the purpose mentioned in that subsection.
tendency rule means the rule mentioned in section 97 (1).
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.
witness—see the dictionary, part 2, section 7.
Part 2Other expressions
References to business
(1)For this Act, a business includes the following:
(a)a profession, calling, occupation, trade or undertaking;
(b)an activity engaged in or carried on by the Commonwealth, a State or a Territory;
(c)an activity engaged in or carried on by the government of a foreign country;
(d)for an entity holding office or exercising power under or because of the Constitution, an Australian law or a law of a foreign country—an activity engaged in or carried on by the entity in the exercise of the functions of the office or 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 an Australian Parliament or of a house of an Australian Parliament;
(f)the proceedings of a legislature of a foreign country, including a house or committee (however described) of the legislature.
(2)For this Act, a business also includes the following:
(a)a business that is not engaged in or carried on for profit;
(b)a business engaged in or carried on outside Australia.
References to examination-in-chief, cross-examination and re-examination
(1)For this Act, a reference 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, other than questioning that is re‑examination.
(2)For this Act, a reference 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)For this Act, a reference 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, that is 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)For this Act, if a party has recalled a witness who has already given evidence, a reference 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.
References to civil penalties
For 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.
Unavailability of people
(1)For 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 to secure the person’s 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.
Unavailability of documents and things
For 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 someone else; or
(c)it would be impractical to produce the document or thing in the proceeding; or
(d)production of the document or thing in 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 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 that other party at a time when that party knew or might reasonably be expected to have known that the evidence was likely to be relevant in the proceeding.
Representations in documents
For 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 the person’s representation by signing, initialling or otherwise marking the document.
Witnesses
(1)For this Act, a reference to a witness includes a reference to a party giving evidence.
(2)For this Act, a reference to a witness who has been called by a party to give evidence includes a reference to the party giving evidence.
(3)For this section, a reference to a party includes a defendant in a criminal proceeding.
References to documents
For this Act, a reference to a document includes a reference to the following:
(a)any part of the document;
(b)any copy, reproduction or duplicate of the document or of any part of the document;
(c)any part of the copy, reproduction or duplicate.
8AReferences to offices etc
For this Act—
(a)a reference to a person appointed or holding office under or because of an Australian law includes a reference to an APS employee within the meaning of the Public Service Act 1999 (Cwlth); and
(b)in that context, a reference to an office is a reference to the position occupied by the APS employee and a reference to an officer includes a reference to a Secretary, or APS employee, within the meaning of that Act.
References to laws
(1)For this Act, a reference 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)For this Act, a reference to an Australian law is a reference to an Australian law (whether written or unwritten) of or in force in Australia.
References to children and parents
(1)For this Act, a child of a person includes the following:
(a)an adopted child of the person;
(b)a child of the person born outside the person’s domestic partnership;
(c)a child living with the person as if the child were a member of the person’s family.
(2)For this Act, a parent of a person includes the following:
(a)if the person is adopted—an adoptive parent of the person;
(b)if the person is a child mentioned in subsection (1) (b)—the person’s natural father;
(c)if the person is a child mentioned in subsection (1) (c)—the person whose family the child is living with.
NoteThe Commonwealth Act and NSW Act include a provision about references to de facto partners.
Endnotes
About the endnotes
Amending and modifying laws are annotated in the legislation history and the amendment history. Current modifications are not included in the republished law but are set out in the endnotes.
Not all editorial amendments made under the Legislation Act 2001, part 11.3 are annotated in the amendment history. Full details of any amendments can be obtained from the Parliamentary Counsel’s Office.
Uncommenced amending laws are not included in the republished law. The details of these laws are underlined in the legislation history. Uncommenced expiries are underlined in the legislation history and amendment history.
If all the provisions of the law have been renumbered, a table of renumbered provisions gives details of previous and current numbering.
The endnotes also include a table of earlier republications.
Abbreviation key
A = Act NI = Notifiable instrument AF = Approved form o = order am = amended om = omitted/repealed amdt = amendment ord = ordinance AR = Assembly resolution orig = original ch = chapter par = paragraph/subparagraph CN = Commencement notice pres = present def = definition prev = previous DI = Disallowable instrument (prev...) = previously dict = dictionary pt = part disallowed = disallowed by the Legislative r = rule/subrule Assembly reloc = relocated div = division renum = renumbered exp = expires/expired R[X] = Republication No Gaz = gazette RI = reissue hdg = heading s = section/subsection IA = Interpretation Act 1967 sch = schedule ins = inserted/added sdiv = subdivision LA = Legislation Act 2001 SL = Subordinate law LR = legislation register sub = substituted LRA = Legislation (Republication) Act 1996 underlining = whole or part not commenced mod = modified/modification or to be expired
Legislation history
Evidence Act 2011 A2011-12
notified LR 13 April 2011
s 1, s 2 commenced 13 April 2011 (LA s 75 (1))
remainder commenced 1 March 2012 (s 2 and CN2012-4)as amended by
Evidence Amendment Act 2011 A2011-47
notified LR 22 November 2011
s 1, s 2 commenced 22 November 2011 (LA s 75 (1))
remainder commenced 1 March 2012 (s 2 and see Evidence Act 2011 A2011‑12, s 2 and CN2012-4)Evidence (Consequential Amendments) Act 2011 A2011-48 sch 1 pt 1.18
notified LR 22 November 2011
s 1, s 2 commenced 22 November 2011 (LA s 75 (1))
sch 1 pt 1.18 commenced 1 March 2012 (s 2 (1) and see Evidence Act 2011 A2011‑12, s 2 and CN2012-4)Marriage Equality (Same Sex) Act 2013 A2013-39 sch 2 pt 2.13
notified LR 4 November 2013
s 1, s 2 commenced 4 November 2013 (LA s 75 (1))sch 2 pt 2.13 commenced 7 November 2013 (s 2 and CN2013-11)
NoteThe High Court held this Act to be of no effect (see Commonwealth v Australian Capital Territory [2013] HCA 55)
Statute Law Amendment Act 2013 (No 2) A2013-44 sch 3 pt 3.7
notified LR 11 November 2013
s 1, s 2 commenced 11 November 2013 (LA s 75 (1))sch 3 pt 3.7 commenced 25 November 2013 (s 2)
Crimes (Domestic and Family Violence) Legislation Amendment Act 2015 A2015‑40 sch 1 pt 1.8
notified LR 4 November 2015
s 1, s 2 commenced 4 November 2015 (LA s 75 (1))sch 1 pt 1.8 commenced 4 May 2016 (s 2 (2))
Family Violence Act 2016 A2016-42 sch 3 pt 3.13 (as am by A2017‑10 s 7)
notified LR 18 August 2016
s 1, s 2 commenced 18 August 2016 (LA s 75 (1))
sch 3 pt 3.13 commenced 1 May 2017 (s 2 (2) as am by A2017‑10 s 7)Family and Personal Violence Legislation Amendment Act 2017 A2017‑10 s 7
notified LR 6 April 2017
s 1, s 2 commenced 6 April 2017 (LA s 75 (1))
s 7 commenced 30 April 2017 (s 2 (1))Note
This Act only amends the Family Violence Act 2016
A2016‑42.
Justice and Community Safety Legislation Amendment Act 2017 (No 2) A2017-14 pt 6
notified LR 17 May 2017
s 1, s 2 commenced 17 May 2017 (LA s 75 (1))
pt 6 commenced 24 May 2017 (s 2 (1))Courts and Other Justice Legislation Amendment Act 2018 A2018-9 pt 8
notified LR 29 March 2018
s 1, s 2 commenced 29 March 2018 (LA s 75 (1))
pt 8 commenced 26 April 2018 (s 2)Royal Commission Criminal Justice Legislation Amendment Act 2018 A2018-46 sch 1 pt 1.4
notified LR 4 December 2018
s 1, s 2 commenced 4 December 2018 (LA s 75 (1))
sch 1 pt 1.4 commenced 5 December 2018 (s 2)Justice and Community Safety Legislation Amendment Act 2019 A2019-17 sch 1 pt 1.3
notified LR 14 June 2019
s 1, s 2 commenced 14 June 2019 (LA s 75 (1))
sch 1 pt 1.3 commenced 21 June 2019 (s 2)Evidence (Miscellaneous Provisions) Amendment Act 2019 A2019-41 sch 1 pt 1.2
notified LR 31 October 2019
s 1, s 2 commenced 31 October 2019 (LA s 75 (1))sch 1 pt 1.2 commenced 9 March 2020 (s 2 and CN2020-4)
Royal Commission Criminal Justice Legislation Amendment Act 2020 A2020-31 pt 3
notified LR 29 July 2020
s 1, s 2 commenced 29 July 2020 (LA s 75 (1))pt 3 commenced 1 September 2020 (s 2 and CN2020-17)
Family Violence Legislation Amendment Act 2022 A2022-13 sch 1 pt 1.3
notified LR 10 August 2022
s 1, s 2 commenced 10 August 2022 (LA s 75 (1))
sch 1 pt 1.3 commenced 17 August 2022 (s 2)Crimes Legislation Amendment Act 2024 A2024-12 pt 7
notified LR 19 April 2024
s 1, s 2 commenced 19 April 2024 (LA s 75 (1))pt 7 commenced 26 April 2024 (s 2 (1))
Amendment history
Commencement
s 2om LA s 89 (4)
Operation of other Acts
s 8am A2011‑48 amdt 1.25, amdt 1.26; A2015‑40 amdt 1.13
Compellability of domestic partners and others in certain criminal proceedings
s 19am A2016‑42 amdt 3.60
Interpreters and intermediaries to act on oath or affirmation
s 22 hdgsub A2019‑41 amdt 1.18
s 22am A2019‑41 amdts 1.19-1.22
Choice of oath or affirmation
s 23am A2019‑41amdt 1.23, amdt 1.24
Deaf and mute witnesses
s 31am A2019‑41amdt 1.25
Exception—reputation as to relationships and age
s 73am A2013‑39 amdt 2.29 (A2013‑39 never effective (see Commonwealth v Australian Capital Territory [2013] HCA 55)); A2019‑17 amdt 1.3
Application—pt 3.6
s 94am A2020‑31 s 12
Admissibility of tendency evidence in proceedings involving child sexual offences
s 97Ains A2020‑31 s 13
The coincidence rule
s 98am A2020‑31 s 14
Further restrictions on tendency evidence and coincidence evidence presented by prosecution
s 101am A2020‑31 s 15
Professional confidential relationship privilege
div 3.10.1A hdg ins A2011‑47 s 4
Definitions—div 3.10.1A
s 126Ains A2011‑47 s 4
def confidant ins A2011‑47 s 4
def harm ins A2011‑47 s 4
def protected confidence ins A2011‑47 s 4
def protected confider ins A2011‑47 s 4
def protected identity information ins A2011‑47 s 4
Exclusion of evidence of protected confidences
s 126Bins A2011‑47 s 4
Loss of professional confidential relationship privilege—consent
s 126Cins A2011‑47 s 4
Loss of professional confidential relationship privilege—misconduct
s 126Dins A2011‑47 s 4
Ancillary orders
s 126Eins A2011‑47 s 4
Application—div 3.10.1A
s 126Fins A2011‑47 s 4
am A2015‑40 amdt 1.14; A2018-46 amdt 1.4; A2022‑13 amdt 1.3
Journalist privilege
div 3.10.1C hdg ins A2011‑47 s 4
Definitions—div 3.10.1C
s 126Jins A2011‑47 s 4
def informant ins A2011‑47 s 4
def journalist ins A2011‑47 s 4
def news medium ins A2011‑47 s 4
Journalist privilege relating to informant’s identity
s 126Kins A2011‑47 s 4
Application—div 3.10.1C
s 126Lins A2011‑47 s 4
Religious confessions
s 127am A2020‑31 s 16
Privilege in relation to self-incrimination in other proceedings
s 128am A2011‑47 ss 5-7; A2017‑14 s 18
Privilege in relation to self-incrimination—exception for certain orders etc
s 128Aam A2011‑47 s 8
Exclusion of evidence of reasons for judicial etc decisions
s 129am A2024‑12 s 12
Application of div 3.10.4 to preliminary proceedings of courts
s 131Aam A2011‑47 s 9, s 10
Official statistics
s 159am A2013‑44 amdt 3.64
Postal articles
s 160am A2018‑9 s 40
Oaths and affirmations
sch 1am A2019‑41 amdt 1.26, amdt 1.27
Dictionary
dictam A2011‑48 amdt 1.27
dict pt 1def confidant ins A2011‑47 s 11
def harm ins A2011‑47 s 11
def informant ins A2011‑47 s 11
def intermediary ins A2019‑41 amdt 1.28
def journalist ins A2011‑47 s 11
def news medium ins A2011‑47 s 11
def previous representation sub A2013‑44 amdt 3.65
def protected confidence ins A2011‑47 s 11
def protected confider ins A2011‑47 s 11
def protected identity information ins A2011‑47 s 11
def request ins A2013‑44 amdt 3.66
dict pt 2 s 4am A2011‑47 s 12
Earlier republications
Some earlier republications were not numbered. The number in column 1 refers to the publication order.
Since 12 September 2001 every authorised republication has been published in electronic pdf format on the ACT legislation register. A selection of authorised republications have also been published in printed format. These republications are marked with an asterisk (*) in column 1. Electronic and printed versions of an authorised republication are identical.
Republication No and date Effective Last amendment made by Republication for R1*
1 Mar 20121 Mar 2012–
6 Nov 2013A2011‑48 new Act and amendments by A2011‑47 and A2011‑48 R2
7 Nov 2013never effective A2013‑39 (never effective) amendments by A2013‑39 R2 (RI)
24 Feb 20147 Nov 2013–
24 Nov 2013A2013-39 (never effective) reissue because of High Court decision in relation to A2013-39 R3
25 Nov 2013never effective A2013‑44 amendments by A2013‑44 R3 (RI)
24 Feb 201425 Nov 2013–
3 May 2016A2013‑44 reissue because of High Court decision in relation to A2013-39 R4
4 May 20164 May 2016–
30 Apr 2017A2015‑40 amendments by A2015‑40 R5
1 May 20171 May 2017–
23 May 2017A2016-42 amendments by A2016-42 as am by A2017-10 R6
24 May 201724 May 2017–
25 Apr 2018A2017‑14 amendments by A2017‑14 R7
26 Apr 201826 Apr 2018–
4 Dec 2018A2018-9 amendments by A2018-9 R8
5 Dec 20185 Dec 2018–
20 June 2019A2018‑46 amendments by A2018‑46 R9
21 June 201921 June 2019–
8 Mar 2020A2019‑17 amendments by A2019‑17 R10
9 Mar 20209 Mar 2020–
31 Aug 2020A2019‑41 amendments by A2019‑41 R11
1 Sept 20201 Sept 2020–
16 Aug 2022A2020‑31 amendments by A2020‑31 R12
17 Aug 202217 August 2022–
25 Apr 2024A2022‑13 amendments by A2022‑13
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