Evidence (National Uniform Legislation) Act 2011 (NT)
NORTHERN TERRITORY OF AUSTRALIA
EVIDENCE (NATIONAL UNIFORM LEGISLATION) ACT 2011
As in force at 1 April 2021
Table of provisions
| Chapter 1 | Preliminary matters |
| Part 1.1 | Formal matters |
1 Short title ......................................................................................... 1
2 Commencement .............................................................................. 2
| 2A | Object of Act .................................................................................... 2 |
| 3 | Definitions ........................................................................................ 2 |
| Part 1.2 | Application of Act |
4 Courts and proceedings to which Act applies .................................. 2
5 Extended application of certain provisions ...................................... 4
6 Territories ........................................................................................ 4
7 Act binds Crown .............................................................................. 4
8 Operation of Acts ............................................................................. 4
| 8A | Application of Criminal Code ........................................................... 4 |
| 9 | Application of common law and equity ............................................ 4 |
| 10 | Parliamentary privilege preserved ................................................... 5 |
| 10A | Application of section 127A ............................................................. 5 |
| 11 | General powers of a court ............................................................... 5 |
| Chapter 2 | Adducing evidence |
| Part 2.1 | Witnesses |
| Division 1 | Competence and compellability of witnesses |
12 Competence and compellability ....................................................... 6
13 Competence – lack of capacity ........................................................ 6
14 Compellability – reduced capacity ................................................... 7
15 Compellability – Sovereign and others ............................................ 8
16 Competence and compellability – judges and jurors ....................... 8
17 Competence and compellability – defendants in criminal proceedings ..................................................................................... 8
18 Compellability of spouses and others in criminal proceedings generally .......................................................................................... 9
19 Compellability of spouses and others in certain criminal proceedings ................................................................................... 10
20 Comment on failure to give evidence ............................................ 11
| Division 2 | Oaths |
21 Evidence of witnesses to be on oath ............................................. 11
22 Interpreters to act on oath.............................................................. 12
23 Choice of oath or affirmation .......................................................... 12
24 Requirements for oaths ................................................................. 12
25 Rights to make unsworn statements unaffected ............................ 12
| Division 3 | General rules about giving evidence |
26 Court's control over questioning of witness ................................... 13
27 Parties may question witnesses .................................................... 13
28 Order of examination in chief, cross-examination and re-examination ............................................................................... 13
29 Manner and form of questioning witnesses and their responses ...................................................................................... 13
30 Interpreter ...................................................................................... 14
31 Deaf and mute witnesses .............................................................. 14
32 Attempts to revive memory in court ............................................... 14
33 Evidence given by police officers ................................................... 15
34 Attempts to revive memory out of court ......................................... 15
35 Effect of calling for production of documents ................................. 16
36 Person may be examined without subpoena or other process ...... 16
| Division 4 | Examination in chief and re-examination |
37 Leading questions ......................................................................... 16
38 Unfavourable witnesses ................................................................ 17
39 Limits on re-examination................................................................ 18
| Division 5 | Cross-examination |
40 Witness called in error ................................................................... 18
41 Improper questions ........................................................................ 18
42 Leading questions ......................................................................... 20
43 Prior inconsistent statements of witnesses .................................... 21
44 Previous representations of other persons .................................... 21
45 Production of documents ............................................................... 22
46 Leave to recall witnesses .............................................................. 23
| Part 2.2 | Documents |
47 Definitions ...................................................................................... 23
48 Proof of contents of documents ..................................................... 23
49 Documents in foreign countries ..................................................... 25
50 Proof of voluminous or complex documents .................................. 25
51 Original document rule abolished .................................................. 26
| Part 2.3 | Other evidence |
52 Adducing of other evidence not affected ....................................... 26
53 Views ............................................................................................. 26
54 Views to be evidence ..................................................................... 27
| Chapter 3 | Admissibility of evidence |
| Part 3.1 | Relevance |
55 Relevant evidence ......................................................................... 30
56 Relevant evidence to be admissible .............................................. 30
57 Provisional relevance .................................................................... 30
58 Inferences as to relevance............................................................. 30
| Part 3.2 | Hearsay |
| Division 1 | The hearsay rule |
59 The hearsay rule – exclusion of hearsay evidence ........................ 31
60 Exception – evidence relevant for a non-hearsay purpose ............ 32
61 Exceptions to the hearsay rule dependant on competency ........... 32
| Division 2 | "First-hand" hearsay |
62 Restriction to "first-hand" hearsay ................................................. 33
63 Exception – civil proceedings if maker not available ...................... 33
64 Exception – civil proceedings if maker available ............................ 34
65 Exception – criminal proceedings if maker not available ............... 34
66 Exception – criminal proceedings if maker available ..................... 37
| 66A | Exception – contemporaneous statements about a person's health etc. ...................................................................................... 38 |
| 67 | Notice to be given .......................................................................... 38 |
| 68 | Objections to tender of hearsay evidence in civil proceedings if maker available ............................................................................. 39 |
| Division 3 | Other exceptions to the hearsay rule |
69 Exception – business records ........................................................ 39
70 Exception – contents of tags, labels and writing ............................ 41
71 Exception – electronic communications ......................................... 41
72 Exception – Aboriginal and Torres Strait Islander traditional laws and customs .......................................................................... 42
73 Exception – reputation as to relationships and age ....................... 42
74 Exception – reputation of public or general rights .......................... 42
75 Exception – interlocutory proceedings ........................................... 43
| Part 3.3 | Opinion |
76 The opinion rule ............................................................................. 43
77 Exception – evidence relevant otherwise than as opinion evidence ........................................................................................ 44
78 Exception – lay opinions ................................................................ 44
| 78A | Exception – Aboriginal and Torres Strait Islander traditional laws and customs .......................................................................... 44 |
| 79 | Exception – opinions based on specialised knowledge ................. 44 |
| 80 | Ultimate issue and common knowledge rules abolished ............... 45 |
| Part 3.4 | Admissions |
81 Hearsay and opinion rules – exception for admissions and related representations .................................................................. 45
82 Exclusion of evidence of admissions that is not first-hand ............. 46
83 Exclusion of evidence of admissions as against third parties ........ 46
84 Exclusion of admissions influenced by violence and certain other conduct ................................................................................. 46
85 Criminal proceedings – reliability of admissions by defendants ..... 47
86 Exclusion of records of oral questioning ........................................ 47
87 Admissions made with authority .................................................... 48
88 Proof of admissions ....................................................................... 49
89 Evidence of silence ........................................................................ 49
90 Discretion to exclude admissions .................................................. 49
| Part 3.5 | Evidence of judgments and convictions |
91 Exclusion of evidence of judgments and convictions ..................... 50
92 Exceptions ..................................................................................... 50
93 Savings .......................................................................................... 51
| Part 3.6 | Tendency and coincidence |
94 Application ..................................................................................... 51
95 Use of evidence for other purposes ............................................... 51
96 Failure to act .................................................................................. 52
97 The tendency rule .......................................................................... 52
| 97A | Admissibility of tendency evidence in proceedings involving child sexual offences ..................................................................... 52 |
| 98 | The coincidence rule ..................................................................... 54 |
| 99 | Requirements for notices ............................................................... 55 |
| 100 | Court may dispense with notice requirements ............................... 55 |
| 101 | Further restrictions on tendency evidence and coincidence evidence adduced by prosecution ................................................. 56 |
| Part 3.7 | Credibility |
| Division 1 | Credibility evidence |
| 101A | Credibility evidence ....................................................................... 57 |
| Division 2 | Credibility of witnesses |
102 The credibility rule ......................................................................... 57
103 Exception – cross-examination as to credibility ............................. 58
104 Further protections – cross-examination as to credibility ............... 58
105 Further protections – defendants making unsworn statements ..... 59
106 Exception – rebutting denials by other evidence ........................... 59
107 Exception – application of certain provisions to makers of representations .............................................................................. 60
108 Exception – re-establishing credibility ............................................ 60
| Division 3 | Credibility of persons who are not witnesses |
| 108A | Admissibility of evidence of credibility of person who has made a previous representation .............................................................. 60 |
| 108B | Further protections – previous representations of an accused who is not a witness ...................................................................... 61 |
| Division 4 | Persons with specialised knowledge |
| 108C | Exception – evidence of persons with specialised knowledge ....... 62 |
| Part 3.8 | Character |
109 Application ..................................................................................... 62
110 Evidence about character of accused persons .............................. 63
111 Evidence about character of co-accused ....................................... 63
112 Leave required to cross-examine about character of accused or co-accused ................................................................................ 63
| Part 3.9 | Identification evidence |
113 Application of Part ......................................................................... 64
114 Exclusion of visual identification evidence ..................................... 64
115 Exclusion of evidence of identification by pictures ......................... 65
116 Directions to jury ............................................................................ 67
| Part 3.10 | Privileges |
| Division 1 | Client legal privilege |
117 Definitions ...................................................................................... 67
118 Legal advice .................................................................................. 69
119 Litigation ........................................................................................ 69
120 Unrepresented parties ................................................................... 70
121 Loss of client legal privilege – generally ........................................ 70
122 Loss of client legal privilege – consent and related matters .......... 70
123 Loss of client legal privilege – defendants ..................................... 72
124 Loss of client legal privilege – joint clients ..................................... 72
125 Loss of client legal privilege – misconduct ..................................... 72
126 Loss of client legal privilege – related communications and documents ..................................................................................... 73
| Division 1A | Professional confidential relationship privilege |
| Division 2 | Other privileges |
127 Religious confessions .................................................................... 73
| 127A | Journalist privilege ......................................................................... 74 |
| 128 | Privilege in respect of self-incrimination in other proceedings ....... 75 |
| 128A | Privilege in respect of self-incrimination – exception for certain orders etc. ...................................................................................... 78 |
| Division 3 | Evidence excluded in the public interest |
129 Exclusion of evidence of reasons for judicial etc. decisions .......... 80
130 Exclusion of evidence of matters of state ...................................... 81
131 Exclusion of evidence of settlement negotiations .......................... 82
| Division 4 | General |
| 131A | Application of Division to preliminary proceedings of courts .......... 85 |
| 132 | Court to inform of rights to make applications and objections........ 85 |
| 133 | Court may inspect etc. documents ................................................ 86 |
| 134 | Inadmissibility of evidence that must not be adduced or given ...... 86 |
| Part 3.11 | Discretionary and mandatory exclusions |
135 General discretion to exclude evidence ......................................... 86
136 General discretion to limit use of evidence .................................... 86
137 Exclusion of prejudicial evidence in criminal proceedings ............. 86
138 Exclusion of improperly or illegally obtained evidence ................... 86
139 Cautioning of persons .................................................................... 88
| Chapter 4 | Proof |
| Part 4.1 | Standard of proof |
140 Civil proceedings – standard of proof ............................................ 90
141 Criminal proceedings – standard of proof ...................................... 90
142 Admissibility of evidence – standard of proof................................. 91
| Part 4.2 | Judicial notice |
143 Matters of law ................................................................................ 91
144 Matters of common knowledge ...................................................... 92
145 Certain Crown certificates.............................................................. 92
| Part 4.3 | Facilitation of proof |
| Division 1 | General |
146 Evidence produced by processes, machines and other devices .......................................................................................... 92
147 Documents produced by processes, machines and other devices in the course of business .................................................. 93
148 Evidence of certain acts of justices, Australian lawyers and notaries public ............................................................................... 94
149 Attestation of documents ............................................................... 94
150 Seals and signatures ..................................................................... 94
151 Seals of bodies established under State law ................................. 96
152 Documents produced from proper custody .................................... 96
| Division 2 | Matters of official record |
153 Gazettes and other official documents .......................................... 96
154 Documents published by authority of Parliaments etc. .................. 97
155 Evidence of official records ............................................................ 98
| 155A | Evidence of Commonwealth documents ....................................... 99 |
| 156 | Public documents .......................................................................... 99 |
| 157 | Public documents relating to court processes ............................... 99 |
| 158 | Evidence of certain public documents ......................................... 100 |
| 159 | Official statistics ........................................................................... 101 |
| Division 3 | Matters relating to post and communications |
160 Postal articles .............................................................................. 101
161 Electronic communications .......................................................... 102
162 Lettergrams and telegrams .......................................................... 102
163 Proof of letters having been sent by Commonwealth agencies ... 103
| Part 4.4 | Corroboration |
164 Corroboration requirements abolished ........................................ 103
| Part 4.5 | Warnings and information |
165 Unreliable evidence ..................................................................... 104
| 165A | Warnings in relation to children's evidence .................................. 105 |
| 165B | Delay in prosecution .................................................................... 106 |
| Part 4.6 | Ancillary provisions |
| Division 1 | Requests to produce documents or call witnesses |
166 Definition of request ..................................................................... 107
167 Requests may be made about certain matters ............................ 108
168 Time limits for making certain requests ....................................... 108
169 Failure or refusal to comply with requests ................................... 109
| Division 2 | Proof of certain matters by affidavits or written statements |
170 Evidence relating to certain matters ............................................ 110
171 Persons who may give such evidence ......................................... 111
172 Evidence based on knowledge, belief or information ................... 112
173 Notification of other parties .......................................................... 112
| Division 3 | Foreign law |
174 Evidence of foreign law ............................................................... 112
175 Evidence of law reports of foreign countries ................................ 113
176 Questions of foreign law to be decided by judge ......................... 113
| Division 4 | Procedures for proving other matters |
177 Certificates of expert evidence .................................................... 113
178 Convictions, acquittals and other judicial proceedings ................ 114
179 Proof of identity of convicted persons – affidavits by members of State or Territory police forces ................................................. 115
180 Proof of identity of convicted persons – affidavits by members of Australian Federal Police ......................................................... 116
181 Proof of service of statutory notifications, notices, orders and directions ..................................................................................... 117
| Chapter 5 | Miscellaneous matters |
182 Application of certain sections in relation to Commonwealth records......................................................................................... 118
183 Inferences .................................................................................... 118
184 Accused may admit matters and give consents ........................... 118
185 Full faith and credit to be given to documents properly authenticated ............................................................................... 118
186 Swearing of affidavits .................................................................. 119
187 No privilege against self-incrimination for bodies corporate ........ 119
188 Impounding documents ............................................................... 119
189 The voir dire ................................................................................. 119
190 Waiver of rules of evidence ......................................................... 121
191 Agreements as to facts ................................................................ 122
192 Leave, permission or direction may be given on terms ................ 122
| 192A | Advance rulings and findings ....................................................... 123 |
| 193 | Additional powers ........................................................................ 123 |
| 194 | Witnesses failing to attend proceedings ...................................... 124 |
| 195 | Prohibited question not to be published ....................................... 125 |
| 197 | Regulations .................................................................................. 125 |
| Chapter 6 | Transitional matters for Evidence (National Uniform Legislation) Act 2011 |
198 Definitions .................................................................................... 127
199 Application of this Act on commencement day ............................ 127
200 Application of section 128A ......................................................... 127
201 Application of Part 3.10 to disclosure requirements ..................... 127
202 Identifications already carried out ................................................ 128
203 Documents and evidence produced before commencement day by processes, machines and other devices .......................... 128
204 Documents attested and verified before commencement day ..... 128
205 Matters of official record published before commencement day .. 128
206 Agreed facts ................................................................................ 129
207 Application of Act to improperly or illegally obtained evidence .... 129
208 Notification provisions .................................................................. 129
209 Notice of intention to adduce hearsay evidence .......................... 130
210 Notice of intention to adduce evidence as to tendency or
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211 Time limits for making requests ................................................... 130
212 Requests under section 173 ........................................................ 131
| Chapter 7 | Transitional matters for Evidence (National Uniform Legislation) Amendment Act 2013 |
214 Definitions .................................................................................... 132
215 Ongoing proceedings .................................................................. 132
| Chapter 8 | Transitional matters for Evidence (National Uniform Legislation) Amendment (Journalist Privilege) Act 2018 |
216 Definitions .................................................................................... 133
217 Application of section 127A ......................................................... 133
218 Application of section 160 ............................................................ 133
| Chapter 9 | Transitional matters for Births, Deaths and Marriages Registration and Other Legislation Amendment Act 2018 |
219 Application of section 73 .............................................................. 134
| Chapter 10 | Transitional matters for Evidence (National Uniform Legislation) Amendment Act 2021 |
220 Definitions .................................................................................... 134
221 Application of amendments to sections 94, 98 and 101 .............. 134
222 Application of section 97A ........................................................... 134
223 Notices given before commencement ......................................... 135
| Schedule | Oaths and affirmation |
| Dictionary | |
| Part 1 | Definitions |
| Part 2 | Other expressions |
1 References to businesses ........................................................... 146
2 References to examination in chief, cross-examination and re-examination ............................................................................. 147
3 References to civil penalties ........................................................ 147
4 Unavailability of persons .............................................................. 147
5 Unavailability of documents and things ....................................... 148
6 Representations in documents .................................................... 149
7 Witnesses .................................................................................... 149
8 References to documents ............................................................ 149
| 8A | References to offices etc. ............................................................ 149 |
| 9 | References to laws ...................................................................... 150 |
| 10 | References to children and parents ............................................. 150 |
| 11 | References to de facto partners .................................................. 150 |
| ENDNOTES |
NORTHERN TERRITORY OF AUSTRALIA
____________________
As in force at 1 April 2021 ____________________
EVIDENCE (NATIONAL UNIFORM LEGISLATION) ACT 2011
An Act about the law of evidence, and for related purposes
| Chapter 1 | Preliminary matters |
| Introductory Note | |
| Outline of this Act |
This Act sets out the rules of evidence for the Territory. Generally speaking, the Act applies to proceedings in Territory courts and before other persons or bodies required to apply the laws of evidence (see section 4).
Chapter 2 is about how evidence is adduced in proceedings. Chapter 3 is about admissibility of evidence in proceedings. Chapter 4 is about proof of matters in proceedings.
Chapter 5 deals with miscellaneous matters.
The Dictionary at the end of this Act defines terms and expressions used in this Act.
Related legislation
This Act is in most respects uniform with the Evidence Act 1995 (Cth), the Evidence Act 1995 (NSW) and the Evidence Act 2008 (Vic). These Acts are drafted in identical terms except so far as differences are identified by appropriate annotations to the texts, and except so far as minor drafting variations are required to accord with the drafting style of each jurisdiction.
If one Act contains a provision that is not included in another Act, there is a gap in the numbering of the other Act in order to maintain consistent numbering for the other provisions.
| Part 1.1 | Formal matters |
1 Short title
| This Act may be cited as the Evidence (National Uniform Legislation) Act 2011. |
2 Commencement
| (1) | This Part and the Dictionary at the end of this Act commence on the day on which the Administrator's assent to this Act is declared. |
| (2) | The remaining provisions of this Act commence on the day fixed by the Administrator by Gazette notice. |
| 2A | Object of Act | |||||
| The object of this Act is to make fresh provision for the law of evidence that is uniform with the following laws of the Commonwealth, New South Wales and Victoria: | ||||||
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| 3 | Definitions |
| (1) | Expressions used in this Act (or in a particular provision of this Act) that are defined in the Dictionary at the end of this Act have the meanings given to them in the Dictionary. |
(2) Notes included in this Act are explanatory notes and do not form part of this Act.
Notes for section 3
1 Some expressions used in this Act are defined in the Interpretation Act and have the meanings given to them in that Act.
2 The Commonwealth Act and NSW Act include an additional subsection (3) regarding definitions which is unnecessary in the Territory because of section 18 of the Interpretation Act.
| Part 1.2 | Application of Act |
4 Courts and proceedings to which Act applies
(1) This Act applies to all proceedings in a Territory court, including proceedings that:
| (a) | relate to bail; or |
| (b) | are interlocutory proceedings or proceedings of a similar kind; or |
| (c) | are heard in chambers; or |
| (d) | subject to subsection (2), relate to sentencing. |
| (2) | If such a proceeding relates to sentencing: | |||
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| (3) | The court must make a direction if: | |||
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| (4) | The court must make a direction if the court considers it appropriate to make such a direction in the interests of justice. |
(5) In this section, a proceeding that relates to sentencing includes a proceeding for an order under Part 5 of the Sentencing Act 1995 or Part 5, Division 9 of the Traffic Act 1987.
Notes for section 4
1 Section 4 of the Commonwealth Act differs from this section. It applies that Act to proceedings in a federal court or an Australian Capital Territory court. Some provisions of the Commonwealth Act extend beyond proceedings in federal courts and Australian Capital Territory courts (see sections 5, 185, 186 and 187 of the Commonwealth Act).
2 Territory court is defined in the Dictionary. The definition includes persons or bodies required to apply the laws of evidence.
3 The Commonwealth Act includes 2 additional subsections that exclude the application of that Act to appeals from a court of a State or Territory (including appeals from a court exercising federal jurisdiction) and certain other courts.
4 Provisions in other Territory Acts which relieve courts from the obligation to apply the rules of evidence in certain proceedings are preserved by section 8 of this Act. These include, for example:
|
5 Subsection (5) is not included in the Commonwealth Act or NSW Act.
5 Extended application of certain provisions
Note for section 5
The Commonwealth Act includes a provision that extends the application of specified provisions of that Act to proceedings in all Australian courts.
6 Territories
Note for section 6
| The Commonwealth Act includes a provision extending that Act to each external Territory. |
7 Act binds Crown
This Act binds the Crown in right of the Territory and, to the extent the legislative power of the Legislative Assembly permits, the Crown in all its other capacities.
8 Operation of Acts
| This Act does not affect the operation of the provisions of any other Act. |
Note for section 8
The Commonwealth Act includes additional subsections relating to the operation of the Corporations Act 2001 (Cth), the Australian Securities and Investments Commission Act 2001 (Cth) and certain laws in force in the Australian Capital Territory. It also provides for the regulations to have continued effect (until amended) after the commencement of the Commonwealth section.
| 8A | Application of Criminal Code | |
| An offence against this Act is an offence to which Part IIAA of the Criminal Code applies. | ||
| Notes for section 8A | ||
| 1 Part IIAA of the Criminal Code states the general principles of criminal responsibility, establishes general defences, and deals with burden of proof. It also defines, or elaborates on, certain concepts commonly used in the creation of offences. | ||
| ||
| 9 | 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 such a principle or rule so far as it relates to any of the following:
| (a) | admission or use of evidence of reasons for a decision of a member of a jury, or of the deliberations of a member of a jury in relation to such a decision, in a proceeding by way of appeal from a judgment, decree, order or sentence of a court; |
| (b) | the operation of a legal or evidential presumption that is not inconsistent with this Act; |
| (c) | a court's power to dispense with the operation of a rule of evidence or procedure in an interlocutory proceeding. |
Note for section 9
This section differs from section 9 of the Commonwealth Act. That section preserves the written and unwritten laws of States and Territories in relation to various matters.
10 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) does not affect, and is in addition to, the law relating to such privileges. |
| 10A | Application of section 127A |
| Despite any provision to the contrary in this Act or in any other Act, section 127A applies to all proceedings before the court or a judicial entity, irrespective of whether the judicial entity is required to apply the rules or laws of evidence. | |
| 11 | 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 with respect to abuse of process in a proceeding are not affected. |
| Chapter 2 | Adducing evidence |
| Introductory note |
Outline of this Chapter
This Chapter is about ways in which evidence is adduced.
Part 2.1 is about adducing evidence from witnesses.
Part 2.2 is about adducing documentary evidence.
Part 2.3 is about adducing other forms of evidence.
| Part 2.1 | Witnesses |
| Division 1 | Competence and compellability of witnesses |
12 Competence and compellability
Except as otherwise provided by this Act:
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13 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): | |||
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| and that incapacity cannot be overcome. | ||||
| Note for subsection (1) | ||||
| See sections 30 and 31 for examples of assistance that may be provided to enable witnesses to overcome disabilities. | ||||
| (2) | A person who, because of subsection (1), is not competent to give evidence about a fact may be competent to give evidence about other facts. |
(3) A person who is competent to give evidence about a fact is not competent to give evidence on oath about the fact if the person does not have the capacity to understand that, in giving evidence, he or she is under an obligation to give truthful evidence.
(4) A person who is not competent to give evidence on oath about a fact may, subject to subsection (5), be competent to give evidence about the fact otherwise than on oath.
| (5) | A person who, because of subsection (3), is not competent to give evidence on oath is competent to give evidence otherwise than on oath if the court has told the person: | |||||
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(6) It is presumed, unless the contrary is proved, that a person is not incompetent because of this section.
(7) Evidence that has been given by a witness does not become inadmissible merely because, before the witness finishes giving evidence, he or she dies or ceases to be competent to give evidence.
(8) For the purpose of determining a question arising under this section, the court may inform itself as it thinks fit, including by obtaining information from a person who has relevant specialised knowledge based on the person's training, study or experience.
14 Compellability – reduced capacity
A person is not compellable to give evidence on a particular matter if the court is satisfied that:
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15 Compellability – Sovereign and others
| (1) | None of the following is compellable to give evidence: | |||||||||
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(2) A member of a House of an Australian Parliament is not compellable to give evidence if the member would, if compelled to give evidence, be prevented from attending:
| (a) | a sitting of that House, or a joint sitting of that Parliament; or |
| (b) | a meeting of a committee of that House or that Parliament, being a committee of which he or she is a member. |
16 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 that proceeding. However, a juror is competent to give evidence in the proceeding about matters affecting the conduct of the proceeding. |
(2) A person who is or was a judge in an Australian or overseas proceeding is not compellable to give evidence about that proceeding unless the court gives leave.
17 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 is to satisfy itself (if there is a jury, in the jury's absence) that the witness is aware of the effect of subsection (3).
Note for subsections (3) and (4)
associated defendant is defined in the Dictionary.
18 Compellability of spouses and others in criminal proceedings generally
| (1) | This section applies only in a criminal proceeding. |
(2) A person who, when required to give evidence, is the spouse, de facto partner, parent or child of 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 is to be made before the person gives the evidence or as soon as practicable after the person becomes aware of the right so to object, whichever is the later. |
| (4) | If it appears to the court that a person may have a right to make an objection under this section, the court is to satisfy itself that the person is aware of the effect of this section as it may apply to the person. |
(5) If there is a jury, the court is to hear and determine any objection under this section in the absence of the jury.
(6) A person who makes an objection under this section to giving evidence or giving evidence of a communication must not be required to give the evidence if the court finds that:
| (a) | there is a likelihood that harm would or might be caused (whether directly or indirectly) to the person, or to the relationship between the person and the 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 the purposes of subsection (6), it must take into account the following: | |||||||||
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(8) If an objection under this section has been determined, the prosecutor may not comment on:
| (a) | the objection; or |
| (b) | the decision of the court in relation to the objection; or |
| (c) | the failure of the person to give evidence. |
19 Compellability of spouses and others in certain criminal proceedings
Section 18 does not apply in a proceeding for any of the following offences:
|
Note for section 19
| This section differs from section 19 of the Commonwealth Act, NSW Act and Victorian Act. |
20 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 the defendant to give evidence. 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 he or she was, guilty of the offence concerned.
(3) 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 spouse or de facto partner; or |
| (b) | a parent or child of the defendant. |
| (4) | However, unless the comment is made by another defendant in the proceeding, a comment of a kind referred to in subsection (3) must not suggest that the spouse, de facto partner, parent or child failed to give evidence because: | |||
|
(5) If:
| (a) | 2 or more persons are being tried together for an indictable offence; and |
| (b) | comment is made by any of those persons on the failure of any of those persons or of the spouse or de facto partner, or a parent or child, of any of those persons to give evidence; |
the judge may, in addition to commenting on the failure to give evidence, comment on any comment of a kind referred to in paragraph (b).
| Division 2 | Oaths |
21 Evidence of witnesses to be on oath
(1) A witness in a proceeding must take an oath before giving
evidence.
(2) Subsection (1) does not apply to a person who gives evidence otherwise than on oath under section 13.
(3) A person who is called merely to produce a document or thing to the court need not take an oath.
Note for section 21
This section departs from the corresponding provision in other jurisdictions because of the provisions in the Oaths, Affidavits and Declarations Act 2010.
22 Interpreters to act on oath
(1) A person must take an oath before acting as an interpreter in a
proceeding.
| (1A) | An oath taken by a person before acting as an interpreter on a day is taken for the purposes of subsection (1) to be an oath taken by that person for the purposes of any subsequent proceedings in that court on that day in which the person acts as an interpreter. | |||
| Notes for section 22 | ||||
|
23 Choice of oath or affirmation
Note for section 23
| This section is not needed because of the provisions in the Oaths, Affidavits and Declarations Act 2010. |
24 Requirements for oaths
Note for section 24
| This section is not needed because of the provisions in the Oaths, Affidavits and Declarations Act 2010. |
25 Rights to make unsworn statements unaffected
Note for section 25
The Commonwealth Act formerly included a provision that preserves any right that a defendant in a criminal proceeding has under a law of a State or Territory to make an unsworn statement. That provision has now been repealed.
| Division 3 | General rules about giving evidence |
26 Court's control over questioning of witness
The court may make such orders as it considers just in relation to:
|
27 Parties may question witnesses
A party may question any witness, except as provided by this Act.
28 Order of examination in chief, cross-examination and re-examination
Unless the court otherwise directs:
|
29 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) A court may, on its own motion or on the application of the party that called the witness, direct that the witness give evidence wholly or partly in narrative form.
(3) Such a direction may include directions about the way in which evidence is to be given in that form.
(4) Evidence may be given in the form of charts, summaries or other explanatory material if it appears to the court that the material would be likely to aid its comprehension of other evidence that has been given or is to be given.
30 Interpreter
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.
31 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 concerning either or both of the
following:
| (a) | the way in which a witness may be questioned under subsection (1); |
| (b) | the means by which a witness may give evidence under subsection (2). |
(4) This section does not affect the right of a witness to whom this section applies to give evidence about a fact through an interpreter under section 30.
32 Attempts to revive memory in court
(1) A witness must not, in the course of giving evidence, use a document to try to revive his or her memory about a fact or opinion unless the court gives leave.
| (2) | Without limiting the matters that the court may take into account in deciding whether to give leave, it is to take into account: | |||
|
(i) was written or made by the witness when the events recorded in it were fresh in his or her memory; or
(ii) was, at such a time, found by the witness to be accurate.
(3) If a witness has, while giving evidence, used a document to try to revive his or her memory about a fact or opinion, the witness may, with the leave of the court, read aloud, as part of his or her evidence, so much of the document as relates to that fact or opinion.
(4) The court is, on the request of a party, to give such directions as the court thinks fit to ensure that so much of the document as relates to the proceeding is produced to that party.
33 Evidence given by police officers
| (1) | Despite section 32, in any criminal proceeding, a police officer may give evidence in chief for the prosecution by reading or being led through a written statement previously made by the police officer. | |||||
| (2) | Evidence may not be so given unless: | |||||
| ||||||
| (3) | A reference in this section to a police officer includes a reference to a person who, at the time the statement concerned was made, was a police officer. |
34 Attempts to revive memory out of court
(1) The court may, on the request of a party, give such directions as are appropriate to ensure that specified documents and things used by a witness otherwise than while giving evidence to try to revive his or her memory are produced to the party for the purposes of the proceeding.
| (2) | The court may refuse to admit the evidence given by the witness so far as it concerns a fact as to which the witness so tried to revive his or her memory if, without reasonable excuse, the directions have not been complied with. |
35 Effect of calling for production of documents
| (1) | A party is not to be required to tender a document only because the party, whether under this Act or otherwise: | |||
| ||||
| (2) | The party who produces a document so called for is not entitled to tender it only because the party to whom it was produced, or who inspected it, fails to tender it. |
36 Person may be examined without subpoena or other process
| (1) | The court may order a person who: | |||
| ||||
| to give evidence and to produce documents or things even if a subpoena or other process requiring the person to attend for that purpose has not been duly served on the person. | ||||
| (2) | A person so ordered to give evidence or to produce documents or things is subject to the same penalties and liabilities as if the person had been duly served with such a subpoena or other process. |
(3) A party who inspects a document or thing produced to the court because of subsection (1) need not use the document in evidence.
| Division 4 | Examination in chief and re-examination |
37 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, being facts in respect of which evidence has been, or is intended to be, given. |
| (2) | Unless the court otherwise directs, subsection (1) does not apply in civil proceedings to a question that relates to an investigation, inspection or report that the witness made in the course of carrying out public or official duties. |
(3) Subsection (1) does not prevent a court from exercising power under rules of court to allow a written statement or report to be tendered or treated as evidence in chief of its maker.
Note for section 37
Leading question is defined in the Dictionary.
38 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 the purposes of this Act (other than section 39).
| (3) | The party questioning the witness under this section may, with the leave of the court, question the witness about matters relevant only to the witness's credibility. |
| Note for subsection (3) | |
| The rules about admissibility of evidence relevant only to credibility are set out in Part 3.7. |
(4) Questioning under this section is to take place before the other parties cross-examine the witness, unless the court otherwise directs.
(5) If the court so directs, the order in which the parties question the witness is to be as the court directs.
| (6) | Without limiting the matters that the court may take into account in determining whether to give leave or a direction under this section, it is to take into account: | |||
| ||||
| (7) | A party is subject to the same liability to be cross-examined under this section as any other witness if: | |||
|
39 Limits on re-examination
On re-examination:
|
| Division 5 | Cross-examination |
40 Witness called in error
A party is not to cross-examine a witness who has been called in error by another party and has not been questioned by that other party about a matter relevant to a question to be determined in the proceeding.
41 Improper questions
(1) The court may disallow an improper question or improper questioning put to a witness in cross-examination, or inform the witness that it need not be answered.
(2) The court must disallow an improper question or improper questioning put to a vulnerable witness in cross-examination, or inform the witness that it need not be answered, unless the court is satisfied that, in all the relevant circumstances of the case, it is necessary for the question to be put.
(3) In this section:
improper question or improper questioning means a question or
a sequence of questions put to a witness that:
| (a) | is misleading or confusing; or |
| (b) | is unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive; or |
| (c) | is put to the witness in a manner or tone that is belittling, insulting or otherwise inappropriate; or |
| (d) | has no basis other than a stereotype (for example, a stereotype based on the witness's sex, race, culture, ethnicity, age or mental, intellectual or physical disability). |
(4) For the purposes of subsection (2), a witness is a vulnerable witness if the witness:
| (a) | is under the age of 18 years; or | |||||
| (b) | has a cognitive impairment or an intellectual disability; or | |||||
| (c) | is a witness whom the court considers to be vulnerable having regard to: | |||||
|
| (A) | the nature of the proceeding; and |
| (B) | in a criminal proceeding – the nature of the offence to which the proceeding relates; and |
(C) the relationship (if any) between the witness and
any other party to the proceeding.
| (5) | A question is not an improper question merely because: | |||
| ||||
| (6) | A party may object to a question put to a witness on the ground that it is an improper question. |
(7) However, the duty imposed on the court by this section applies whether or not an objection is raised to a particular question.
| (8) | A failure by the court to disallow a question under this section, or to inform the witness that it need not be answered, does not affect the admissibility in evidence of any answer given by the witness in response to the question. | |||
| Notes for section 41 | ||||
|
42 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 such a direction, it is to take into account the extent to which: | |||||||
|
(3) The court is to disallow the question, or direct the witness not to answer it, if the court is satisfied that the facts concerned would be better ascertained if leading questions were not used.
(4) This section does not limit the court's power to control leading
questions.
Note for section 42
Leading question is defined in the Dictionary.
43 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 he or she has made a prior inconsistent statement, the cross-examiner is not to adduce evidence of the statement otherwise than from the witness unless, in the cross-examination, the cross-examiner:
| (a) | informed the witness of enough of the circumstances of the making of the statement to enable the witness to identify the statement; and |
| (b) | drew the witness's attention to so much of the statement as is inconsistent with the witness's evidence. |
| (3) | For the purpose of adducing evidence of the statement, a party may re-open the party's case. |
44 Previous representations of other persons
(1) Except as provided by this section, a cross-examiner must not question a witness about a previous representation alleged to have been made by a person other than the witness.
| (2) | A cross-examiner may question a witness about the representation and its contents if: | |||||||
| ||||||||
| (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: | |||||||
| ||||||||
| (4) | A document that is so used may be marked for identification. |
45 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 another person that is recorded in a document. |
| (2) | If the court so orders or if another party so requires, the party must produce: | |||
| ||||
| to the court or to that other party. |
(3) The court may:
| (a) | examine a document or evidence that has been so produced; and |
| (b) | give directions as to its use; and |
| (c) | admit it even if it has not been tendered by a party. |
(4) Subsection (3) does not permit the court to admit a document or evidence that is not admissible because of Chapter 3.
(5) The mere production of a document to a witness who is being cross-examined does not give rise to a requirement that the cross- examiner tender the document.
46 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 adduced by another party, being a matter on which the witness was not cross-examined, if the evidence concerned has been admitted and:
| (a) | it contradicts evidence about the matter given by the witness in examination in chief; or |
| (b) | the witness could have given evidence about the matter in examination in chief. |
| (2) | A reference in this section to a matter raised by evidence adduced by another party includes a reference to an inference drawn from, or that the party intends to draw from, that evidence. |
| Part 2.2 | Documents |
47 Definitions
| (1) | A reference in this Part to a document in question is a reference to a document as to the contents of which it is sought to adduce evidence. |
(2) A reference in this Part to a copy of a document in question includes a reference to a document that is not an exact copy of the document in question but that is identical to the document in question in all relevant respects.
48 Proof of contents of documents
(1) A party may adduce evidence of the contents of a document in question by tendering the document in question or by any one or more of the following methods:
| (a) | adducing evidence of an admission made by another party to the proceeding as to the contents of the document in question; | |||||
| (b) | tendering a document that: | |||||
| ||||||
| (c) | if the document in question is an article or thing by which words are recorded in such a way as to be capable of being reproduced as sound, or in which words are recorded in a code (including shorthand writing) – tendering a document that is or purports to be a transcript of the words; | |||||
| (d) | if the document in question is an article or thing on or in which information is stored in such a way that it cannot be used by the court unless a device is used to retrieve, produce or collate it – tendering a document that was or purports to have been produced by use of the device; | |||||
| (e) | tendering a document that: | |||||
| ||||||
| (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: | |||||
|
(2) Subsection (1) applies to a document in question whether the document in question is available to the party or not.
| (3) | If the party adduces evidence of the contents of a document under subsection (1)(a), the evidence may only be used: | |||
|
(4) A party may adduce evidence of the contents of a document in question that is not available to the party, or the existence and contents of which are not in issue in the proceeding, by:
| (a) | tendering a document that is a copy of, or an extract from or summary of, the document in question; or |
| (b) | adducing from a witness evidence of the contents of the document in question. |
Notes for section 48
1 Clause 5 of Part 2 of the Dictionary is about the availability of documents.
2 Section 182 of the Commonwealth Act gives section 48 of the Commonwealth Act a wider application in relation to Commonwealth records and certain Commonwealth documents.
49 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:
|
Note for section 49
Section 182 of the Commonwealth Act gives section 49 of the Commonwealth Act a wider application in relation to Commonwealth records and certain Commonwealth documents.
50 Proof of voluminous or complex documents
(1) The court may, on the application of a party, direct that the party may adduce evidence of the contents of 2 or more documents in question in the form of a summary if the court is satisfied that it would not otherwise be possible conveniently to examine the evidence because of the volume or complexity of the documents in question.
(2) The court may only make such a direction if the party seeking to adduce the evidence in the form of a summary has:
| (a) | served on each other party a copy of the summary that discloses the name and address of the person who prepared the summary; and |
| (b) | given each other party a reasonable opportunity to examine or copy the documents in question. |
| (3) | The opinion rule does not apply to evidence adduced in accordance with a direction under this section. |
51 Original document rule abolished
The principles and rules of the common law that relate to the means of proving the contents of documents are abolished.
Note for section 51
Section 182 of the Commonwealth Act gives the provisions of Part 2.2 of the Commonwealth Act a wider application in relation to Commonwealth records and certain Commonwealth documents.
| Part 2.3 | Other evidence |
52 Adducing of other evidence not affected
This Act (other than this Part) does not affect the operation of any Australian law or rule of practice so far as it permits evidence to be adduced in a way other than by witnesses giving evidence or documents being tendered in evidence.
53 Views
(1) A judge may, on application, order that a demonstration, experiment or inspection be held.
| (2) | A judge is not to make an order unless he or she is satisfied that: | |||||||||
| ||||||||||
| (3) | Without limiting the matters that the judge may take into account in deciding whether to make an order, the judge is to take into account the following: | |||||||||
| ||||||||||
| (4) | The court (including, if there is a jury, the jury) is not to conduct an experiment in the course of its deliberations. | |||||||||
| (5) | This section does not apply in relation to the inspection of an exhibit by the court or, if there is a jury, by the jury. |
54 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 3 | Admissibility of evidence |
| Introductory Note |
Outline of this Chapter
This Chapter is about whether evidence adduced in a proceeding is admissible.
Part 3.1 sets out the general inclusionary rule that relevant evidence is admissible.
Part 3.2 is about the exclusion of hearsay evidence, and exceptions to the hearsay
rule.
Part 3.3 is about exclusion of opinion evidence, and exceptions to the opinion rule.
Part 3.4 is about admissions and the extent to which they are admissible as
exceptions to the hearsay rule and the opinion rule.
Part 3.5 is about exclusion of certain evidence of judgments and convictions.
Part 3.6 is about exclusion of evidence of tendency or coincidence, and exceptions to
the tendency rule and the coincidence rule.
214 Definitions
In this Chapter:
| amending Act means the Evidence (National Uniform Legislation) Amendment Act 2013. |
| commencement day means the day on which section 5 of the amending Act commences. |
215 Ongoing proceedings
Despite the amendments made to section 19 by the amending Act, that section continues to apply to a proceeding commenced before the commencement day as if the amendments had not been made.
| Chapter 8 | Transitional matters for Evidence (National Uniform Legislation) Amendment (Journalist Privilege) Act 2018 |
216 Definitions
| amending Act means the Evidence (National Uniform Legislation) Amendment (Journalist Privilege) Act 2018. |
| commencement means the day on which the amending Act commences. |
217 Application of section 127A
(1) Section 127A, as inserted by the amending Act, applies to information given by an informant before the commencement.
(2) However, section 127A does not apply in relation to a proceeding commenced before the commencement.
(3) In this section:
informant, see section 127A(6).
218 Application of section 160
Section 160, as amended by the amending Act, applies in relation to postal articles sent after the commencement.
| Chapter 9 | Transitional matters for Births, Deaths and Marriages Registration and Other Legislation Amendment Act 2018 |
219 Application of section 73
Section 73, as amended by the Births, Deaths and Marriages Registration and Other Legislation Amendment Act, applies in relation to evidence adduced in proceedings on or after the day on which this Part commences, whether the proceedings are instituted before or after that commencement.
| Chapter 10 | Transitional matters for Evidence (National Uniform Legislation) Amendment Act 2021 |
220 Definitions
In this Chapter:
| amending Act means the Evidence (National Uniform Legislation) Amendment Act 2021. |
| commencement means the day on which section 4 of the amending Act commences. |
221 Application of amendments to sections 94, 98 and 101
| (1) | Sections 94, 98 and 101, as amended by the amending Act, apply in relation to a proceeding in which the hearing commenced after the commencement. |
(2) Sections 94, 98 and 101, as in force immediately before the commencement, continue to apply in relation to a proceeding in which the hearing commenced before the commencement.
222 Application of section 97A
| (1) | Section 97A, as inserted by the amending Act, applies in relation to a proceeding in which the hearing commenced after the commencement. |
| (2) | However, section 97A does not apply in relation to a proceeding in which the hearing commenced before the commencement. |
223 Notices given before commencement
The validity of a notice given under a provision of this Act immediately before the commencement is not affected by the commencement.
| Schedule | Oaths and affirmation |
| Note for Schedule |
The Commonwealth Act, NSW Act and Victorian Act contain a schedule, which is not required for the Territory because of the provisions in the Oaths, Affidavits and Declarations Act 2010.
Dictionary
section 3
| Part 1 | Definitions |
admission means a previous representation that is:
| (a) | made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding); and |
| (b) | adverse to the person's interest in the outcome of the proceeding. |
asserted fact, see section 59.
associated defendant, in relation to a defendant in a criminal proceeding, means a person against whom a prosecution has been instituted, but not yet completed or terminated, for:
| (a) | an offence that arose in relation to the same events as those in relation to which the offence for which the defendant is being prosecuted arose; or |
| (b) | an offence that relates to or is connected with the offence for which the defendant is being prosecuted. |
Australia includes the external Territories.
Australian court means:
| (a) | the High Court; or |
| (b) | a court exercising federal jurisdiction; or |
| (c) | a court of a State or Territory; or |
| (d) | a judge, justice or arbitrator under an Australian law; or |
| (e) | a person or body authorised by an Australian law, or by consent of parties, to hear, receive and examine evidence; or |
| (f) | a person or body that, in exercising a function under an Australian law, is required to apply the laws of evidence. |
Australian law means a law of the Commonwealth, a State or
Territory.
Note for definition Australian law
See clause 9 of Part 2 of this Dictionary for the meaning of a law of the Commonwealth, a State, a Territory or a foreign country. That clause also further defines Australian law.
Australian lawyer, see section 5(a) of the Legal Profession
Act 2006.
Australian legal practitioner, see section 6(a) of the Legal
Profession Act 2006.
Australian or overseas proceeding means a proceeding
(however described) in an Australian court or a foreign court.
Australian Parliament means the Parliament of the Commonwealth or a State or the Legislative Assembly of a Territory.
Australian practising certificate, see section 4 of the Legal
Profession Act 2006.
Australian-registered foreign lawyer, see section 4 of the Legal
Profession Act 2006.
Australian Statistician means the Australian Statistician referred to in section 5(2) of the Australian Bureau of Statistics Act 1975 (Cth), and includes any person to whom the powers of the Australian Statistician under section 12 of the Census and Statistics Act 1905 (Cth) have been delegated.
business, see clause 1 of Part 2 of this Dictionary.
case, of a party, means the facts in issue in respect of which the
party bears the legal burden of proof.
child means a child of any age, and includes the meaning given in
clause 10(1) of Part 2 of this Dictionary.
civil penalty, see clause 3 of Part 2 of this Dictionary.
civil proceeding means a proceeding other than a criminal
proceeding.
client, see section 117.
coincidence evidence means evidence of a kind referred to in section 98(1) that a party seeks to have adduced for the purpose referred to in that subsection.
coincidence rule means the provision contained in section 98(1).
Commonwealth Act, see section 2A.
Commonwealth owned body corporate means a body corporate that, were the Commonwealth a body corporate, would, for the purposes of the Corporations Act 2001, be:
| (a) | a wholly-owned subsidiary of the Commonwealth; or |
| (b) | a wholly-owned subsidiary of another body corporate that is, under this definition, a Commonwealth owned body corporate because of the application of paragraph (a) (including the application of that paragraph together with another application or other applications of this paragraph). |
Commonwealth record means a record made by:
| (a) | a Department within the meaning of the Public Service Act 1999 (Cth); or | |||||
| (b) | the Parliament of the Commonwealth, a House of the Parliament, a committee of a House of the Parliament or a committee of the Parliament; or | |||||
| (c) | a person or body, other than a Legislative Assembly, holding office, or exercising power, under or because of the Constitution or a law of the Commonwealth; or | |||||
| (d) | a body or organisation other than a Legislative Assembly, whether incorporated or unincorporated, established for a public purpose: | |||||
| ||||||
| (e) | any other body or organisation that is a Commonwealth owned body corporate; |
and kept or maintained by a person, body or organisation of a kind referred to in paragraph (a), (b), (c), (d) or (e), but does not include a record made by a person or body holding office, or exercising power, under or because of the Constitution or a law of the Commonwealth if the record was not made in connection with holding the office concerned, or exercising the power concerned.
confidential communication, see section 117.
confidential document, see section 117.
court means a Territory court.
Notes for definition court
1 Territory court is defined in this Dictionary.
2 The Commonwealth Act does not include this definition.
credibility, of a person who has made a representation that has been admitted in evidence, means the credibility of the representation, and includes the person's ability to observe or remember facts and events about which the person made the representation.
credibility, of a witness, means the credibility of any part or all of the evidence of the witness, and includes the witness's ability to observe or remember facts and events about which the witness has given, is giving or is to give evidence.
credibility evidence, see section 101A.
credibility rule means the provision contained in section 102.
criminal proceeding means a prosecution for an offence and
includes:
| (a) | a proceeding for the committal of a person for trial or sentence for an offence; and |
| (b) | a proceeding relating to bail; |
but does not include a prosecution for an offence that is a prescribed taxation offence within the meaning of Part III of the Taxation Administration Act 1953 (Cth).
cross-examination, see clause 2(2) of Part 2 of this Dictionary.
cross-examiner means a party who is cross-examining a witness.
de facto partner
Note for definition de facto partner
This definition is not needed because of the definition of de facto partner in section 19A(3) of the Interpretation Act 1978.
document means any record of information, and includes:
| (a) | anything on which there is writing; or |
| (b) | anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; or |
| (c) | anything from which sounds, images or writings can be reproduced with or without the aid of anything else; or |
| (d) | a map, plan, drawing or photograph. |
Note for definition document
See also clause 8 of Part 2 of this Dictionary on the meaning of document.
electronic communication, see section 5 of the Electronic
Transactions (Northern Territory) Act 2000.
examination in chief, see clause 2(1) of Part 2 of this Dictionary.
exercise, of a function, includes performance of a duty.
fax, in relation to a document, means a copy of the document that
has been reproduced by facsimile telegraphy.
federal court
Note for definition federal court
The Commonwealth Act includes a definition of this term.
foreign court means any court (including any person or body authorised to take or receive evidence, whether on behalf of a court or otherwise and whether or not the person or body is empowered to require the answering of questions or the production of documents) of a foreign country or a part of such a country.
function includes power, authority and duty.
government or official gazette includes the Government Gazette.
Note for definition government or official gazette
The definition of this term in the Commonwealth Act and NSW Act differs from this definition.
Governor of a State includes any person for the time being administering the Government of the State.
Note for definition Governor of a State
The Commonwealth Act does not include a definition of Governor of a State. The definition is covered by section 16B of the Acts Interpretation Act 1901 (Cth).
Governor-General means Governor-General of the Commonwealth and includes any person for the time being administering the Government of the Commonwealth.
Note for definition Governor-General
The Commonwealth Act does not include a definition of Governor-General. The definition is covered by section 16A of the Acts Interpretation Act 1901 (Cth).
hearsay rule means the provision contained in section 59(1).
identification evidence means evidence that is:
| (a) | an assertion by a person to the effect that a defendant was, or resembles (visually, aurally or otherwise) a person who was, present at or near a place where: | |||
|
at or about the time at which the offence was committed or the act was done, being an assertion that is based wholly or partly on what the person making the assertion saw, heard or otherwise perceived at that place and time; or
| (b) | a report (whether oral or in writing) of such an assertion. |
investigating official means:
| (a) | a police officer (other than a police officer who is engaged in covert investigations under the orders of a superior); or |
| (b) | a person appointed by or under an Australian law (other than a person who is engaged in covert investigations under the orders of a superior) whose functions include functions in respect of the prevention or investigation of offences. |
joint sitting means:
| (a) | in relation to the Parliament of the Commonwealth – a joint sitting of the members of the Senate and of the House of Representatives convened by the Governor-General under section 57 of the Commonwealth Constitution or convened under any Act of the Commonwealth; or |
| (b) | in relation to a bicameral legislature of a State – a joint sitting of both Houses of the legislature convened under a law of the State. |
judge, in relation to a proceeding, means the judge, magistrate or
other person before whom the proceeding is being held.
judicial entity means the following:
| (a) | the Civil and Administrative Tribunal; |
| (b) | any other person or body prescribed by the regulations. |
law, see clause 9 of Part 2 of this Dictionary.
lawyer, see section 117.
leading question means a question asked of a witness that:
| (a) | directly or indirectly suggests a particular answer to the question; or |
| (b) | assumes the existence of a fact the existence of which is in dispute in the proceeding and as to the existence of which the witness has not given evidence before the question is asked. |
legal counsel means an Australian lawyer employed in or by a government agency or other body who by law is exempted from holding an Australian practising certificate, or who does not require an Australian practising certificate, to engage in legal practice in the course of that employment.
Note for definition legal counsel
Examples of legal counsel are in-house counsel and government solicitors.
Legislative Assembly means any present or former Legislative Assembly of a Territory, and includes the Australian Capital Territory House of Assembly.
member, of the Australian Federal Police, includes a special
member or a staff member of the Australian Federal Police.
NSW Act, see section 2A.
offence means an offence against or arising under an Australian
law.
opinion rule means the provision contained in section 76.
overseas-registered foreign lawyer, see section 170 of the Legal
Profession Act 2006.
parent includes the meaning given in clause 10(2) of Part 2 of this
Dictionary.
party, see section 117.
picture identification evidence, see section 115.
police officer means:
| (a) | a member of the Australian Federal Police; or |
| (b) | a member of the police force of a State or Territory. |
postal article, see section 3 of the Australian Postal Corporation
Act 1989 (Cth).
previous representation means a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced.
prior consistent statement, of a witness, means a previous representation that is consistent with evidence given by the witness.
prior inconsistent statement, of a witness, means a previous representation that is inconsistent with evidence given by the 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 institutes or is responsible for the
conduct of a prosecution.
public document means a document that:
| (a) | forms part of the records of the Crown in any of its capacities; or |
| (b) | forms part of the records of the government of a foreign country; or |
| (c) | forms part of the records of a person or body holding office or exercising a function under or because of the Commonwealth Constitution, an Australian law or a law of a foreign country; or |
| (d) | is being kept by or on behalf of the Crown, such a government or such a person or body; |
and includes the records of the proceedings of, and papers
presented to:
| (e) | an Australian Parliament, a House of an Australian Parliament, a committee of such a House or a committee of an Australian Parliament; and |
| (f) | a legislature of a foreign country, including a House or committee (however described) of such a legislature. |
re-examination, see clause 2(3) and (4) of Part 2 of this Dictionary.
representation includes:
| (a) | an express or implied representation (whether oral or in writing); or |
| (b) | a representation to be inferred from conduct; or |
| (c) | a representation not intended by its maker to be communicated to or seen by another person; or |
| (d) | a representation that for any reason is not communicated. |
seal includes a stamp.
tendency evidence means evidence of a kind referred to in section 97(1) that a party seeks to have adduced for the purpose referred to in that subsection.
tendency rule means the provision contained in section 97(1).
Territory court means:
| (a) | the Supreme Court; or |
| (b) | any other court created by a law of the Territory; or |
| (c) | any person or body (other than a court) that, in exercising a function under the law of the Territory, is required to apply the laws of evidence. |
Note for definition Territory court
The Commonwealth Act does not include this definition. The Commonwealth Act contains a similar definition of "ACT court". The NSW Act contains a similar definition of "NSW court". The Victorian Act contains a similar definition of "Victorian court".
traditional laws and customs, of an Aboriginal or Torres Strait Islander group (including a kinship group), includes any of the traditions, customary laws, customs, observances, practices, knowledge and beliefs of the group.
Victorian Act, see section 2A.
visual identification evidence, see section 114.
witness includes the meaning given in clause 7 of Part 2 of this
Dictionary.
| Part 2 | Other expressions |
1 References to businesses
(1) A reference in this Act to a business includes a reference to the
following:
| (a) | a profession, calling, occupation, trade or undertaking; |
| (b) | an activity engaged in or carried on by the Crown in any of its capacities; |
| (c) | an activity engaged in or carried on by the government of a foreign country; |
| (d) | an activity engaged in or carried on by a person or body holding office or exercising power under or because of the Commonwealth Constitution, an Australian law or a law of a foreign country, being an activity engaged in or carried on in the performance of the functions of the office or in the exercise of the power (otherwise than in a private capacity); |
| (e) | the proceedings of an Australian Parliament, a House of an Australian Parliament, a committee of such a House or a committee of an Australian Parliament; |
| (f) | the proceedings of a legislature of a foreign country, including a House or committee (however described) of such a legislature. |
| (2) | A reference in this Act to a business also includes a reference to: | |||
|
2 References to examination in chief, cross-examination and re-examination
(1) A reference in this Act to examination in chief of a witness is a reference to the questioning of a witness by the party who called the witness to give evidence, not being questioning that is re-examination.
(2) A reference in this Act to cross-examination of a witness is a reference to the questioning of a witness by a party other than the party who called the witness to give evidence.
| (3) | A reference in this Act to re-examination of a witness is a reference to the questioning of a witness by the party who called the witness to give evidence, being questioning (other than further examination in chief with the leave of the court) conducted after the cross- examination of the witness by another party. |
| (4) | If a party has recalled a witness who has already given evidence, a reference in this Act to re-examination of a witness does not include a reference to the questioning of the witness by that party before the witness is questioned by another party. |
3 References to civil penalties
For the purposes of this Act, a person is taken to be liable to a civil penalty if, in an Australian or overseas proceeding (other than a criminal proceeding), the person would be liable to a penalty arising under an Australian law or a law of a foreign country.
4 Unavailability of persons
| (1) | For the purposes of this Act, a person is taken not to be available to give evidence about a fact if: | |||||||||||||
|
(2) In all other cases the person is taken to be available to give evidence about the fact.
5 Unavailability of documents and things
For the purposes of this Act, a document or thing is taken not to be available to a party if and only if:
|
(i) it cannot be obtained by any judicial procedure of the court; or
(ii) it is in the possession or under the control of another party to the proceeding concerned who knows or might reasonably be expected to know that evidence of the contents of the document, or evidence of the thing, is likely to be relevant in the proceeding; or
(iii) it was in the possession or under the control of such a party at a time when that party knew or might reasonably be expected to have known that such evidence was likely to be relevant in the proceeding.
6 Representations in documents
For the purposes of this Act, a representation contained in a document is taken to have been made by a person if:
|
7 Witnesses
| (1) | A reference in this Act to a witness includes a reference to a party giving evidence. |
| (2) | A reference in this Act to a witness who has been called by a party to give evidence includes a reference to the party giving evidence. |
(3) A reference in this clause to a party includes a defendant in a criminal proceeding.
8 References to documents
A reference in this Act to a document includes a reference to:
| ||||||
| 8A | References to offices etc. |
In this Act:
|
9 References to laws
(1) A reference in this Act to a law of the Commonwealth, a State, a Territory or a foreign country is a reference to a law (whether written or unwritten) of or in force in that place.
(2) A reference in this Act to an Australian law is a reference to an Australian law (whether written or unwritten) of or in force in Australia.
10 References to children and parents
| (1) | A reference in this Act to a child of a person includes a reference to: | |||||
| ||||||
| (2) | A reference in this Act to a parent of a person includes a reference to: | |||||
|
11 References to de facto partners
This clause is not needed because of the definition of de facto partner in section 19A(3) of the Interpretation Act 1978.
ENDNOTES
1 KEY
Key to abbreviations
| amd = amended app = appendix | od = order |
| om = omitted | |
| bl = by-law | pt = Part |
| ch = Chapter | r = regulation/rule |
| cl = clause | rem = remainder |
| div = Division | renum = renumbered |
| exp = expires/expired | rep = repealed |
| f = forms | s = section |
| Gaz = Gazette hdg = heading ins = inserted lt = long title | sch = Schedule |
| sdiv = Subdivision | |
| SL = Subordinate Legislation | |
| sub = substituted | |
| nc = not commenced |
2 LIST OF LEGISLATION
Evidence (National Uniform Legislation) Act 2011 (Act No. 33, 2011)
| Assent date | 15 November 2011 |
| Commenced | 1 January 2013 (Gaz G51, 19 December 2012, p 4) |
Evidence (National Uniform Legislation) (Consequential Amendments) Act 2012 (Act
No. 23, 2012)
| Assent date | 21 November 2012 |
| Commenced | 1 January 2013 (Gaz G51, 19 December 2012, p 4) |
Evidence (National Uniform Legislation) Amendment Act 2013 (Act No. 4, 2013)
| Assent date | 14 March 2013 |
| Commenced | 2 April 2013 (Gaz S14, 2 April 2013) |
Local Court (Related Amendments) Act 2016 (Act No. 8, 2016)
| Assent date | 6 April 2016 |
| Commenced | 1 May 2016 (s 2, s 2 Local Court (Repeals and Related Amendments) Act 2016 (Act No. 9, 2016) and Gaz S34, 29 April 2016) |
Independent Commissioner Against Corruption (Consequential and Related
Amendment) Act 2018 (Act No. 3, 2018)
| Assent date | 21 February 2018 |
| Commenced | 30 November 2018 (s 2, s 2 Independent Commissioner Against Corruption Act 2017 (Act No. 23, 2017) and Gaz S94, 30 November 2018 |
Evidence (National Uniform Legislation) Amendment (Journalist Privilege) Act 2018
(Act No. 7, 2018)
| Assent date | 19 April 2018 |
| Commenced | 20 April 2018 (s 2) |
Births, Deaths and Marriages Registration and Other Legislation Amendment 2018 (Act
No. 30, 2018)
| Assent date | 5 December 2018 |
| Commenced | 6 December 2018 (s 2) |
Evidence (National Uniform Legislation) Amendment Act 2021 (Act No. 2, 2021)
| Assent date | 5 March 2021 |
| Commenced | 1 April 2021 (Gaz G13, 31 March 2021, p 1) |
3 GENERAL AMENDMENTS
General amendments of a formal nature (which are not referred to in the table of amendments to this reprint) are made by the Interpretation Legislation Amendment Act 2018 (Act No. 22, 2018) to: ss 1, 4, 19, 21, 22, 23, 24, 128A, 129, 171 and 194 and sch and dict.
4 LIST OF AMENDMENTS
| s 4 | amd No. 3, 2018, s 107 |
| s 10A | ins No. 7, 2018, s 4 |
| s 19 | amd No. 4, 2013, s 4 |
| s 73 | amd No. 30, 2018, s 18 |
| s 94 | amd No. 2, 2021, s 4 |
| s 97A | ins No. 2, 2021, s 5 |
| s 98 | amd No. 2, 2021, s 6 |
| s 101 | amd No. 2, 2021, s 7 |
| pt 3.10 | |
| div 1A note | amd No. 7, 2018, s 6 |
| s 127A | ins No. 7, 2018, s 5 |
| s 160 | amd No. 7, 2018, s 7 |
| s 196 | rep No. 8, 2016, s 22 |
| ch 6 hdg | ins No. 23, 2012, s 4 |
| ss 198 – 212 | ins No. 23, 2012, s 4 |
| s 213 | exp No. 23, 2012, s 213(5) |
| ch 7 hdg | ins No. 4, 2013, s 5 |
| ss 214 – 215 | ins No. 4, 2013, s 5 |
| ch 8 hdg | ins No. 7, 2018, s 8 |
| ss 216 – 218 | ins No. 7, 2018, s 8 |
| ch 9 hdg | ins No. 30, 2018, s 19 |
| s 219 | ins No. 30, 2018, s 19 |
| ch 10 hdg | ins No. 2, 2021, s 8 |
| ss 220 – 223 | ins No. 2, 2021, s 8 |
| dict | amd No. 7, 2018, s 9 |
ADMISSIBLE
No
Does the credibility rule apply? (See Part
3.7. See also Part 3.8 on character
| evidence.) | Yes |
No
| Does the evidence contravene the rules about identification evidence? (See Part 3.9.) | Yes |
No
Does a privilege apply? (See Part 3.10.)
Yes
No
Should a discretion to exclude the
evidence be exercised or must it be
| excluded? (See Part 3.11.) | Yes |
No
THE EVIDENCE IS ADMISSIBLE
0
0
0