Commonwealth: Evidence Act 1995 (Cth)

Evidence Act 1995 No. 2, 1995 Compilation No. 34 Compilation date: 1 September 2021 Includes amendments up to: Act No. 13, 2021 Registered: 2 November 2021 About this compilation This compilation This is a compilation of the Evidence Act 1995 that shows the text of the law as amended and in force on 1 September 2021 (the compilation date). The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law. Uncommenced amendments The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law. Application, saving and transitional provisions for provisions and amendments If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes. Editorial changes For more information about any editorial changes made in this compilation, see the endnotes. Modifications If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law. Self‑repealing provisions If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes. Contents Chapter 1—Preliminary Part 1.1—Formal matters 1 Short title 2 Commencement 3 Definitions Part 1.2—Application of this Act 4 Courts and proceedings to which Act applies 5 Extended application of certain provisions 6 Territories 7 Act binds Crown 8 Operation of other Acts etc. 8A Application of the Criminal Code 9 Effect of Act on other laws 10 Parliamentary privilege preserved 11 General powers of a court Chapter 2—Adducing evidence Part 2.1—Witnesses Division 1—Competence and compellability of witnesses 12 Competence and compellability 13 Competence: lack of capacity 14 Compellability: reduced capacity 15 Compellability: Sovereign and others 16 Competence and compellability: judges and jurors 17 Competence and compellability: defendants in criminal proceedings 18 Compellability of spouses and others in criminal proceedings generally 20 Comment on failure to give evidence Division 2—Oaths and affirmations 21 Sworn evidence of witnesses to be on oath or affirmation 22 Interpreters to act on oath or affirmation 23 Choice of oath or affirmation 24 Requirements for oaths Division 3—General rules about giving evidence 26 Court's control over questioning of witnesses 27 Parties may question witnesses 28 Order of examination in chief, cross‑examination and re‑examination 29 Manner and form of questioning witnesses and their responses 30 Interpreters 31 Witnesses who cannot hear adequately or speak adequately 32 Attempts to revive memory in court 33 Evidence given by police officers 34 Attempts to revive memory out of court 35 Effect of calling for production of documents 36 Person may be examined without subpoena or other process Division 4—Examination in chief and re‑examination 37 Leading questions 38 Unfavourable witnesses 39 Limits on re‑examination Division 5—Cross‑examination 40 Witness called in error 41 Improper questions 42 Leading questions 43 Prior inconsistent statements of witnesses 44 Previous representations of other persons 45 Production of documents 46 Leave to recall witnesses Part 2.2—Documents 47 Definitions 48 Proof of contents of documents 49 Documents in foreign countries 50 Proof of voluminous or complex documents 51 Original document rule abolished Part 2.3—Other evidence 52 Adducing of other evidence not affected 53 Views 54 Views to be evidence Chapter 3—Admissibility of evidence Part 3.1—Relevance 55 Relevant evidence 56 Relevant evidence to be admissible 57 Provisional relevance 58 Inferences as to relevance Part 3.2—Hearsay Division 1—The hearsay rule 59 The hearsay rule—exclusion of hearsay evidence 60 Exception: evidence relevant for a non‑hearsay purpose 61 Exceptions to the hearsay rule dependent on competency Division 2—First‑hand hearsay 62 Restriction to "first‑hand" hearsay 63 Exception: civil proceedings if maker not available 64 Exception: civil proceedings if maker available 65 Exception: criminal proceedings if maker not available 66 Exception: criminal proceedings if maker available 66A Exception: contemporaneous statements about a person's health etc. 67 Notice to be given 68 Objections to tender of hearsay evidence in civil proceedings if maker available Division 3—Other exceptions to the hearsay rule 69 Exception: business records 70 Exception: contents of tags, labels and writing 71 Exception: electronic communications 72 Exception: Aboriginal and Torres Strait Islander traditional laws and customs 73 Exception: reputation as to relationships and age 74 Exception: reputation of public or general rights 75 Exception: interlocutory proceedings Part 3.3—Opinion 76 The opinion rule 77 Exception: evidence relevant otherwise than as opinion evidence 78 Exception: lay opinions 78A Exception: Aboriginal and Torres Strait Islander traditional laws and customs 79 Exception: opinions based on specialised knowledge 80 Ultimate issue and common knowledge rules abolished Part 3.4—Admissions 81 Hearsay and opinion rules: exception for admissions and related representations 82 Exclusion of evidence of admissions that is not first‑hand 83 Exclusion of evidence of admissions as against third parties 84 Exclusion of admissions influenced by violence and certain other conduct 85 Criminal proceedings: reliability of admissions by defendants 86 Exclusion of records of oral questioning 87 Admissions made with authority 88 Proof of admissions 89 Evidence of silence 90 Discretion to exclude admissions Part 3.5—Evidence of judgments and convictions 91 Exclusion of evidence of judgments and convictions 92 Exceptions 93 Savings Part 3.6—Tendency and coincidence 94 Application 95 Use of evidence for other purposes 96 Failure to act 97 The tendency rule 98 The coincidence rule 99 Requirements for notices 100 Court may dispense with notice requirements 101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution Part 3.7—Credibility Division 1—Credibility evidence 101A Credibility evidence Division 2—Credibility of witnesses 102 The credibility rule 103 Exception: cross‑examination as to credibility 104 Further protections: cross‑examination of accused 106 Exception: rebutting denials by other evidence 108 Exception: re‑establishing credibility Division 3—Credibility of persons who are not witnesses 108A Admissibility of evidence of credibility of person who has made a previous representation 108B Further protections: previous representations of an accused who is not a witness Division 4—Persons with specialised knowledge 108C Exception: evidence of persons with specialised knowledge Part 3.8—Character 109 Application 110 Evidence about character of accused persons 111 Evidence about character of co‑accused 112 Leave required to cross‑examine about character of accused or co‑accused Part 3.9—Identification evidence 113 Application of Part 114 Exclusion of visual identification evidence 115 Exclusion of evidence of identification by pictures 116 Directions to jury Part 3.10—Privileges Division 1—Client legal privilege 117 Definitions 118 Legal advice 119 Litigation 120 Unrepresented parties 121 Loss of client legal privilege: generally 122 Loss of client legal privilege: consent and related matters 123 Loss of client legal privilege: defendants 124 Loss of client legal privilege: joint clients 125 Loss of client legal privilege: misconduct 126 Loss of client legal privilege: related communications and documents Division 1C—Journalist privilege 126J Definitions 126K Journalist privilege relating to identity of informant Division 2—Other privileges 127 Religious confessions 128 Privilege in respect of self‑incrimination in other proceedings 128A Privilege in respect of self‑incrimination—exception for certain orders etc Division 3—Evidence excluded in the public interest 129 Exclusion of evidence of reasons for judicial etc. decisions 130 Exclusion of evidence of matters of state 131 Exclusion of evidence of settlement negotiations Division 4—General 131A Extended application of Division 1C 131B Extended application of Division 1C etc. to all proceedings for Commonwealth offences 132 Court to inform of rights to make applications and objections 133 Court may inspect etc. documents 134 Inadmissibility of evidence that must not be adduced or given Part 3.11—Discretionary and mandatory exclusions 135 General discretion to exclude evidence 136 General discretion to limit use of evidence 137 Exclusion of prejudicial evidence in criminal proceedings 138 Discretion to exclude improperly or illegally obtained evidence 139 Cautioning of persons Chapter 4—Proof Part 4.1—Standard of proof 140 Civil proceedings: standard of proof 141 Criminal proceedings: standard of proof 142 Admissibility of evidence: standard of proof Part 4.2—Judicial notice 143 Matters of law 144 Matters of common knowledge 145 Certain Crown certificates Part 4.3—Facilitation of proof Division 1—General 146 Evidence produced by processes, machines and other devices 147 Documents produced by processes, machines and other devices in the course of business 148 Evidence of certain acts of justices, lawyers and notaries public 149 Attestation of documents 150 Seals and signatures 151 Seals of bodies established under State law 152 Documents produced from proper custody Division 2—Matters of official record 153 Gazettes and other official documents 154 Documents published by authority of Parliaments etc. 155 Evidence of official records 155A Evidence of Commonwealth documents 156 Public documents 157 Public documents relating to court processes 158 Evidence of certain public documents 159 Official statistics Division 3—Matters relating to post and communications 160 Postal articles 161 Electronic communications 162 Lettergrams and telegrams 163 Proof of letters having been sent by Commonwealth agencies Part 4.4—Corroboration 164 Corroboration requirements abolished Part 4.5—Warnings and information 165 Unreliable evidence 165A Warnings in relation to children's evidence 165B Delay in prosecution Part 4.6—Ancillary provisions Division 1—Requests to produce documents or call witnesses 166 Definition of request 167 Requests may be made about certain matters 168 Time limits for making certain requests 169 Failure or refusal to comply with requests Division 2—Proof of certain matters by affidavits or written statements 170 Evidence relating to certain matters 171 Persons who may give such evidence 172 Evidence based on knowledge, belief or information 173 Notification of other parties Division 3—Foreign law 174 Evidence of foreign law 175 Evidence of law reports of foreign countries 176 Questions of foreign law to be decided by judge Division 4—Procedures for proving other matters 177 Certificates of expert evidence 178 Convictions, acquittals and other judicial proceedings 179 Proof of identity of convicted persons—affidavits by members of State or Territory police forces 180 Proof of identity of convicted persons—affidavits by AFP employees or special members of the Australian Federal Police 181 Proof of service of statutory notifications, notices, orders and directions Chapter 5—Miscellaneous 182 Application of certain sections in relation to Commonwealth records, postal articles sent by Commonwealth agencies and certain Commonwealth documents 183 Inferences 184 Accused may admit matters and give consents 185 Faith and credit to be given to documents properly authenticated 186 Swearing of affidavits before justices of the peace, notaries public and lawyers 187 Abolition of the privilege against self‑incrimination for bodies corporate 188 Impounding documents 189 The voir dire 190 Waiver of rules of evidence 191 Agreements as to facts 192 Leave, permission or direction may be given on terms 192A Advance rulings and findings 193 Additional powers 195 Prohibited question not to be published 197 Regulations Schedule—Oaths and Affirmations Dictionary Part 1—Definitions Part 2—Other Expressions 1 References to businesses 2 References to examination in chief, cross‑examination and re‑examination 3 References to civil penalties 4 Unavailability of persons 5 Unavailability of documents and things 6 Representations in documents 7 Witnesses 8 References to documents 8A References to offices etc. 9 References to laws 10 References to children and parents 11 References to de facto partners Endnotes Endnote 1—About the endnotes Endnote 2—Abbreviation key Endnote 3—Legislation history Endnote 4—Amendment history An Act about the law of evidence, and for related purposes Chapter 1—Preliminary INTRODUCTORY NOTE Outline of this Act This Act sets out the federal rules of evidence. Generally speaking, the Act applies to proceedings in federal courts (see section 4), but some provisions extend beyond such proceedings (see Note 2 to subsection 4(1)). 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 following State and Territory Acts: (a) the Evidence Act 1995 (NSW); (b) the Evidence Act 2001 (Tas.); (c) the Evidence Act 2008 (Vic.); (d) the Evidence Act 2011 (ACT); (e) the Evidence (National Uniform Legislation) Act 2011 (NT). While these Acts are in most respects identical to this Act, there are differences. The explanatory memorandum to the Civil Law and Justice Legislation Amendment Bill 2014 includes a table setting out the differences as at 8 July 2014. An updated version of the table is maintained by the Attorney‑General's Department on its website (http://www.ag.gov.au). Part 1.1—Formal matters 1 Short title This Act may be cited as the Evidence Act 1995. 2 Commencement (1) This Part and the Dictionary at the end of this Act commence on the day on which this Act receives the Royal Assent. (2) Subject to subsection (3), the remaining provisions of this Act commence on a day or days to be fixed by Proclamation. (3) If a provision referred to in subsection (2) does not commence under that subsection before 18 April 1995, it commences on that day. 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. Note: Some expressions used in this Act are defined in the Acts Interpretation Act 1901, and have the meanings given to them in that Act. (1A) The Dictionary at the end of this Act is part of this Act. (2) Notes included in this Act are explanatory notes and do not form part of this Act. (3) Definitions in this Act of expressions used in this Act apply to its construction except insofar as the context or subject matter otherwise indicates or requires. Part 1.2—Application of this Act 4 Courts and proceedings to which Act applies (1) This Act applies to all proceedings in a federal 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. Note 2: Federal court is defined in the Dictionary. The definition includes persons or bodies required to apply the laws of evidence. Note 3: Some provisions of this Act extend beyond proceedings in federal courts. These provisions deal with: * extension of specified provisions to cover proceedings in all Australian courts (section 5); * faith and credit to be given to documents properly authenticated (section 185); * swearing of affidavits for use in Australian courts exercising federal jurisdiction or similar jurisdiction (section 186); * abolition of the privilege against self‑incrimination for bodies corporate (section 187). Note 4: See section 79 of the Judiciary Act 1903 for the application of this Act to proceedings in a State court exercising federal jurisdiction. (2) If such a proceeding relates to sentencing: (a) this Act applies only if the court directs that the law of evidence applies in the proceeding; and (b) if the court specifies in the direction that the law of evidence applies only in relation to specified matters—the direction has effect accordingly. (3) The court must make a direction if: (a) a party to the proceeding applies for such a direction in relation to the proof of a fact; and (b) in the court's opinion, the proceeding involves proof of that fact, and that fact is or will be significant in determining a sentence to be imposed in the proceeding. (4) The court must make a direction if the court considers it appropriate to make such a direction in the interests of justice. (5) Subject to subsection (5A), the provisions of this Act (other than sections 185, 186 and 187) do not apply to: (a) an appeal from a court of a State, including an appeal from a court of a State exercising federal jurisdiction; or (b) an appeal from a court of the Australian Capital Territory, the Northern Territory or an external Territory; or (e) a review of a decision or order of a magistrate and any appeal from such a review; except so far as the provisions apply to proceedings in all Australian courts. (5A) Despite subsection (5), this Act applies to an appeal to the Federal Circuit and Family Court of Australia (Division 1) from a court of summary jurisdiction of a State or Territory exercising jurisdiction under the Family Law Act 1975. 5 Extended application of certain provisions The provisions of this Act referred to in the Table apply to all proceedings in an Australian 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) relate to sentencing. TABLE Provisions of this Act Subject matter Subsection 70(2) Evidence of tags and labels in Customs prosecutions and Excise prosecutions Section 143 Matters of law Section 150 Seals and signatures Section 153 Gazettes and other official documents Section 154 Documents published by authority of Parliaments etc. Section 155 Official records Section 155A Commonwealth documents Section 157 Public documents relating to court processes Section 158 Evidence of certain public documents Section 159 Official statistics Section 163 Proof of letters having been sent by Commonwealth agencies Section 182 Commonwealth records, postal articles sent by Commonwealth agencies and certain Commonwealth documents Note: Australian court is defined in the Dictionary to cover all courts in Australia. The definition extends to persons and bodies that take evidence or that are required to apply the laws of evidence. 6 Territories This Act extends to each external Territory. 7 Act binds Crown This Act binds the Crown in all its capacities. 8 Operation of other Acts etc. (1) This Act does not affect the operation of the provisions of any other Act, other than sections 68, 79, 80 and 80A of the Judiciary Act 1903. (2) This Act does not affect the operation of regulations that: (a) are made under an Act other than this Act; and (b) are in force on the commencement of this section. However, this subsection ceases to apply to a regulation once it is amended after that commencement. (3) This Act has effect subject to the Corporations Act 2001 and the Australian Securities and Investments Commission Act 2001. 8A Application of the Criminal Code Chapter 2 of the Criminal Code applies to all offences against this Act. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. 9 Effect of Act on other laws (1) For the avoidance of doubt, this Act does not affect an Australian law so far as the law relates to a court's power to dispense with the operation of a rule of evidence or procedure in an interlocutory proceeding. (2) For the avoidance of doubt, this Act does not affect a law of a State or Territory so far as the law relates to: (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 the relevant court; or (b) bail; or (c) any requirement for admission of evidence in support of an alibi. (3) For the avoidance of doubt, this Act does not affect a law of a State or Territory so far as the law provides for: (a) the operation of a legal or evidential presumption (except so far as this Act is, expressly or by necessary intendment, inconsistent with the presumption); or (b) the admissibility of a document to depend on whether stamp duty has been paid; or (c) a requirement that notice must be given before evidence may be adduced; or (d) evidentiary effect to be given to a certificate or other document issued under that or any other law of the State or Territory; or (e) proof of title to property (other than by a means provided for by this Act that is applicable to proof of title to property). 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, subsection 15(2) does not affect, and is in addition to, the law relating to such privileges. 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: (a) every person is competent to give evidence; and (b) a person who is competent to give evidence about a fact is compellable to give that evidence. 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): (a) the person does not have the capacity to understand a question about the fact; or (b) the person does not have the capacity to give an answer that can be understood to a question about the fact; and that incapacity cannot be overcome. Note: See sections 30 and 31 for examples of assistance that may be provided to enable witnesses to overcome disabilities. (2) A person who, because of subsection (1), is not competent to give evidence about a fact may be competent to give evidence about other facts. (3) A person who is competent to give evidence about a fact is not competent to give sworn evidence about the fact if the person does not have the capacity to understand that, in giving evidence, he or she is under an obligation to give truthful evidence. (4) A person who is not competent to give sworn evidence about a fact may, subject to subsection (5), be competent to give unsworn evidence about the fact. (5) A person who, because of subsection (3), is not competent to give sworn evidence is competent to give unsworn evidence if the court has told the person: (a) that it is important to tell the truth; and (b) that he or she may be asked questions that he or she does not know, or cannot remember, the answer to, and that he or she should tell the court if this occurs; and (c) that he or she may be asked questions that suggest certain statements are true or untrue and that he or she should agree with the statements that he or she believes are true and should feel no pressure to agree with statements that he or she believes are untrue. (6) It is presumed, unless the contrary is proved, that a person is not incompetent because of this section. (7) Evidence that has been given by a witness does not become inadmissible merely because, before the witness finishes giving evidence, he or she dies or ceases to be competent to give evidence. (8) For the purpose of determining a question arising under this section, the court may inform itself as it thinks fit, including by obtaining information from a person who has relevant specialised knowledge based on the person's training, study or experience. 14 Compellability: reduced capacity A person is not compellable to give evidence on a particular matter if the court is satisfied that: (a) substantial cost or delay would be incurred in ensuring that the person would have the capacity to understand a question about the matter or to give an answer that can be understood to a question about the matter; and (b) adequate evidence on that matter has been given, or will be able to be given, from one or more other persons or sources. 15 Compellability: Sovereign and others (1) None of the following is compellable to give evidence: (a) the Sovereign; (b) the Governor‑General; (c) the Governor of a State; (d) the Administrator of a Territory; (e) a foreign sovereign or the Head of State of a foreign country. (2) A member of a House of an Australian Parliament is not compellable to give evidence if the member would, if compelled to give evidence, be prevented from attending: (a) a sitting of 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 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: 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: (a) the nature and gravity of the offence for which the defendant is being prosecuted; (b) the substance and importance of any evidence that the person might give and the weight that is likely to be attached to it; (c) whether any other evidence concerning the matters to which the evidence of the person would relate is reasonably available to the prosecutor; (d) the nature of the relationship between the defendant and the person; (e) whether, in giving the evidence, the person would have to disclose matter that was received by the person in confidence from the defendant. (8) If an objection under this section has been 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. 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 had, or believed that he or she had, committed 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: (a) the defendant had committed the offence concerned; or (b) the spouse, de facto partner, parent or child believed that the defendant had committed the offence concerned. (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 and affirmations 21 Sworn evidence of witnesses to be on oath or affirmation (1) A witness in a proceeding must either take an oath, or make an affirmation, before giving evidence. (2) Subsection (1) does not apply to a person who gives unsworn evidence under section 13. (3) A person who is called merely to produce a document or thing to the court need not take an oath or make an affirmation before doing so. (4) The witness is to take the oath, or make the affirmation, in accordance with the appropriate form in the Schedule or in a similar form. (5) Such an affirmation has the same effect for all purposes as an oath. 22 Interpreters to act on oath or affirmation (1) A person must either take an oath, or make an affirmation, before acting as an interpreter in a proceeding. (2) The person is to take the oath, or make the affirmation, in accordance with the appropriate form in the Schedule or in a similar form. (3) Such an affirmation has the same effect for all purposes as an oath. 23 Choice of oath or affirmation (1) A person who is to be a witness or act as an interpreter in a proceeding may choose whether to take an oath or make an affirmation. (2) The court is to inform the person that he or she has this choice. (3) The court may direct a person who is to be a witness to make an affirmation if: (a) the person refuses to choose whether to take an oath or make an affirmation; or (b) it is not reasonably practicable for the person to take an appropriate oath. 24 Requirements for oaths (1) It is not necessary that a religious text be used in taking an oath. (2) An oath is effective for the purposes of this Division even if the person who took it: (a) did not have a religious belief or did not have a religious belief of a particular kind; or (b) did not understand the nature and consequences of the oath. Division 3—General rules about giving evidence 26 Court's control over questioning of witnesses The court may make such orders as it considers just in relation to: (a) the way in which witnesses are to be questioned; and (b) the production and use of documents and things in connection with the questioning of witnesses; and (c) the order in which parties may question a witness; and (d) the presence and behaviour of any person in connection with the questioning of witnesses. 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: (a) cross‑examination of a witness is not to take place before the examination in chief of the witness; and (b) re‑examination of a witness is not to take place before all other parties who wish to do so have cross‑examined the witness. 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 Interpreters A witness may give evidence about a fact through an interpreter unless the witness can understand and speak the English language sufficiently to enable the witness to understand, and to make an adequate reply to, questions that may be put about the fact. 31 Witnesses who cannot hear adequately or speak adequately (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: (a) whether the witness will be able to recall the fact or opinion adequately without using the document; and (b) whether so much of the document as the witness proposes to use is, or is a copy of, a document that: (i) was written or made by the witness when the events recorded in it were fresh in his or her memory; or (ii) was, at such a time, found by the witness to be accurate. (3) If a witness has, while giving evidence, used a document to try to revive his or her memory about a fact or opinion, the witness may, with the leave of the court, read aloud, as part of his or her evidence, so much of the document as relates to that fact or opinion. (4) The court is, on the request of a party, to give such directions as the court thinks fit to ensure that so much of the document as relates to the proceeding is produced to that party. 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: (a) the statement was made by the police officer at the time of or soon after the occurrence of the events to which it refers; and (b) the police officer signed the statement when it was made; and (c) a copy of the statement had been given to the person charged or to his or her Australian legal practitioner or legal counsel a reasonable time before the hearing of the evidence for the prosecution. (3) A reference in this section to a police officer includes a reference to a person who, 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: (a) called for the document to be produced to the party; or (b) inspected it when it was so produced. (2) The party who produces a document so called for is not entitled to tender it only because the party to whom it was produced, or who inspected it, fails to tender it. 36 Person may be examined without subpoena or other process (1) The court may order a person who: (a) is present at the hearing of a proceeding; and (b) is compellable to give evidence in the proceeding; to give evidence and to produce documents or things even if a subpoena or other process requiring the person to attend for that purpose has not been 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: 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: The rules about admissibility of evidence relevant only to credibility are set out in Part 3.7. (4) Questioning under this section is to take place before the other parties cross‑examine the witness, unless the court otherwise directs. (5) If the court so directs, the order in which the parties question the witness is to be as the court directs. (6) Without limiting the matters that the court may take into account in determining whether to give leave or a direction under this section, it is to take into account: (a) whether the party gave notice at the earliest opportunity of his or her intention to seek leave; and (b) the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party. (7) A party is subject to the same liability to be cross‑examined under this section as any other witness if: (a) a proceeding is being conducted in the name of the party by or on behalf of an insurer or other person; and (b) the party is a witness in the proceeding. 39 Limits on re‑examination On re‑examination: (a) a witness may be questioned about matters arising out of evidence given by the witness in cross‑examination; and (b) other questions may not be put to the witness unless the court gives leave. Division 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 must disallow a question put to a witness in cross‑examination, or inform the witness that it need not be answered, if the court is of the opinion that the question (referred to as a disallowable question): (a) is misleading or confusing; or (b) is unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive; or (c) is put to the witness in a manner or tone that is belittling, insulting or otherwise inappropriate; or (d) has no basis other than a stereotype (for example, a stereotype based on the witness's sex, race, culture, ethnicity, age or mental, intellectual or physical disability). (2) Without limiting the matters the court may take into account for the purposes of subsection (1), it is to take into account: (a) any relevant condition or characteristic of the witness of which the court is, or is made, aware, including age, education, ethnic and cultural background, gender, language background and skills, level of maturity and understanding and personality; and (b) any mental, intellectual or physical disability of which the court is, or is made, aware and to which the witness is, or appears to be, subject; and (c) the context in which the question is put, including: (i) the nature of the proceeding; and (ii) in a criminal proceeding—the nature of the offence to which the proceeding relates; and (iii) the relationship (if any) between the witness and any other party to the proceeding. (3) A question is not a disallowable question merely because: (a) the question challenges the truthfulness of the witness or the consistency or accuracy of any statement made by the witness; or (b) the question requires the witness to discuss a subject that could be considered distasteful to, or private by, the witness. (4) A party may object to a question put to a witness on the ground that it is a disallowable question. (5) However, the duty imposed on the court by this section applies whether or not an objection is raised to a particular question. (6) A failure by the court to disallow a question under this section, or to 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. Note: A person must not, without the express permission of a court, print or publish any question that the court has disallowed under this section: see section 195. 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: (a) evidence that has been given by the witness in examination in chief is unfavourable to the party who called the witness; and (b) the witness has an interest consistent with an interest of the cross‑examiner; and (c) the witness is sympathetic to the party conducting the cross‑examination, either generally or about a particular matter; and (d) the witness's age, or any mental, intellectual or physical disability to which the witness is subject, may affect the witness's answers. (3) The court is to disallow the question, or direct the witness not to answer it, if the court is satisfied that the facts concerned would be better ascertained if leading questions were not used. (4) This section does not limit the court's power to control leading questions. Note: Leading question is defined in the Dictionary. 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: (a) evidence of the representation has been admitted; or (b) the court is satisfied that it will be admitted. (3) If subsection (2) does not apply and the representation is contained in a document, the document may only be used to question a witness as follows: (a) the document must be produced to the witness; (b) if the document is a tape recording, or any other kind of document from which sounds are reproduced—the witness must be provided with the means (for example, headphones) to listen to the contents of the document without other persons present at the cross‑examination hearing those contents; (c) the witness must be asked whether, having examined (or heard) the contents of the document, the witness stands by the evidence that he or she has given; (d) neither the cross‑examiner nor the witness is to identify the document or disclose any of its contents. (4) A document that is so used may be marked for identification. 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: (a) the document; or (b) such evidence of the contents of the document as is available to the party; to the court or to that other party. (3) The court may: (a) examine a document or evidence that has been so produced; and (b) give directions as to its use; and (c) admit it even if it has not been tendered by a party. (4) Subsection (3) does not permit the court to admit a document or evidence that is not admissible because of Chapter 3. (5) The mere production of a document to a witness who is being cross‑examined does not give rise to a requirement that the cross‑examiner tender the document. 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. Note: Section 182 gives this section a wider application in relation to Commonwealth records and certain Commonwealth documents. 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: (i) is or purports to be a copy of the document in question; and (ii) has been produced, or purports to have been produced, by a device that reproduces the contents of documents; (c) if the document in question is an article or thing by which words are recorded in such a way as to be capable of being reproduced as sound, or in which words are recorded in a code (including shorthand writing)—tendering a document that is or purports to be a transcript of the words; (d) if the document in question is an article or thing on or in which information is stored in such a way that it cannot be used by the court unless a device is used to retrieve, produce or collate it—tendering a document that was or purports to have been produced by use of the device; (e) tendering a document that: (i) forms part of the records of or kept by a business (whether or not the business is still in existence); and (ii) is or purports to be a copy of, or an extract from or a summary of, the document in question, or is or purports to be a copy of such an extract or summary; (f) if the document in question is a public document—tendering a document that is or purports to be a copy of the document in question and that is or purports to have been printed: (i) by the Government Printer or by the government or official printer of a State or Territory; or (ii) by authority of the government or administration of the Commonwealth, a State, a Territory or a foreign country; or (iii) by authority of an Australian Parliament, a House of an Australian Parliament, a committee of such a House or a committee of an Australian Parliament. (2) Subsection (1) applies to a document in question whether the document in question is available to the party or not. (3) If the party adduces evidence of the contents of a document under paragraph (1)(a), the evidence may only be used: (a) in respect of the party's case against the other party who made the admission concerned; or (b) in respect of the other party's case against the party who adduced the evidence in that way. (4) A party may adduce evidence of the contents of a document in question that is not available to the party, or the existence and contents of which are not in issue in the proceeding, by: (a) tendering a document that is a copy of, or an extract from or summary of, the document in question; or (b) adducing from a witness evidence of the contents of the document in question. Note 1: Clause 5 of Part 2 of the Dictionary is about the availability of documents. Note 2: Section 182 gives this section a wider application in relation to Commonwealth records and certain Commonwealth documents. 49 Documents in foreign countries No paragraph of subsection 48(1) (other than paragraph 48(1)(a)) applies to a document that is in a foreign country unless: (a) the party who adduces evidence of the contents of the document in question has, not less than 28 days (or such other period as may be prescribed by the regulations or by rules of court) before the day on which the evidence is adduced, served on each other party a copy of the document proposed to be tendered; or (b) the court directs that it is to apply. Note: Section 182 gives this section 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: Section 182 gives the provisions of this Part 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: (a) the parties will be given a reasonable opportunity to be present; and (b) the judge and, if there is a jury, the jury will be present. (3) Without limiting the matters that the judge may take into account in deciding whether to make an order, the judge is to take into account the following: (a) whether the parties will be present; (b) whether the demonstration, experiment or inspection will, in the court's opinion, assist the court in resolving issues of fact or understanding the evidence; (c) the danger that the demonstration, experiment or inspection might be unfairly prejudicial, might be misleading or confusing or might cause or result in undue waste of time; (d) in the case of a demonstration—the extent to which the demonstration will properly reproduce the conduct or event to be demonstrated; (e) in the case of an inspection—the extent to which the place or thing to be inspected has materially altered. (4) The court (including, if there is a jury, the jury) is not to conduct an experiment in the course of its deliberations. (5) This section does not apply in relation to the inspection of an exhibit by the court or, if there is a jury, by the jury. 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. Part 3.7 is about exclusion of evidence relevant only to credibility, and exceptions to the credibility rule. Part 3.8 is about character evidence and the extent to which it is admissible as exceptions to the hearsay rule, the opinion rule, the tendency rule and the credibility rule. Part 3.9 is about the requirements that must be satisfied before identification evidence is admissible. Part 3.10 is about the various categories of privilege that may prevent evidence being adduced. Part 3.11 provides for the discretionary and mandatory exclusion of evidence even if it would otherwise be admissible. The following diagram shows how this Chapter applies to particular evidence: Part 3.1—Relevance 55 Relevant evidence (1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. (2) In particular, evidence is not taken to be irrelevant only because it relates only to: (a) the credibility of a witness; or (b) the admissibility of other evidence; or (c) a failure to adduce evidence. 56 Relevant evidence to be admissible (1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding. (2) Evidence that is not relevant in the proceeding is not admissible. 57 Provisional relevance (1) If the determination of the question whether evidence adduced by a party is relevant depends on the court making another finding (including a finding that the evidence is what the party claims it to be), the court may find that the evidence is relevant: (a) if it is reasonably open to make that finding; or (b) subject to further evidence being admitted at a later stage of the proceeding that will make it reasonably open to make that finding. (2) Without limiting subsection (1), if the relevance of evidence of an act done by a person depends on the court making a finding that the person and one or more other persons had, or were acting in furtherance of, a common purpose (whether to effect an unlawful conspiracy or otherwise), the court may use the evidence itself in determining whether the common purpose existed. 58 Inferences as to relevance (1) If a question arises as to the relevance of a document or thing, the court may examine it and may draw any reasonable inference from it, including an inference as to its authenticity or identity. (2) Subsection (1) does not limit the matters from which inferences may properly be drawn. Part 3.2—Hearsay Division 1—The hearsay rule 59 The hearsay rule—exclusion of hearsay evidence (1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation. (2) Such a fact is in this Part referred to as an asserted fact. (2A) For the purposes of determining under subsection (1) whether it can reasonably be supposed that the person intended to assert a particular fact by the representation, the court may have regard to the circumstances in which the representation was made. Note: Subsection (2A) was inserted as a response to the decision of the Supreme Court of NSW in R. v Hannes (2000) 158 FLR 359. (3) Subsection (1) does not apply to evidence of a representation contained in a certificate or other document given or made under regulations made under an Act other than this Act to the extent to which the regulations provide that the certificate or other document has evidentiary effect. Note: Specific exceptions to the hearsay rule are as follows: * evidence relevant for a non‑hearsay purpose (section 60); * first‑hand hearsay: – civil proceedings, if the maker of the representation is unavailable (section 63) or available (section 64); – criminal proceedings, if the maker of the representation is unavailable (section 65) or available (section 66); * contemporaneous statements about a person's health etc. (section 66A); * business records (section 69); * tags and labels (section 70); * electronic communications (section 71); * Aboriginal and Torres Strait Islander traditional laws and customs (section 72); * marriage, family history or family relationships (section 73); * public or general rights (section 74); * use of evidence in interlocutory proceedings (section 75); * admissions (section 81); * representations about employment or authority (subsection 87(2)); * exceptions to the rule excluding evidence of judgments and convictions (subsection 92(3)); * character of and expert opinion about accused persons (sections 110 and 111). Other provisions of this Act, or of other laws, may operate as further exceptions. Examples: (1) D is the defendant in a sexual assault trial. W has made a statement to the police that X told W that X had seen D leave a n