Queensland: Evidence Act 1977 (Qld)

Evidence Act 1977 An Act to consolidate, amend and reform the law of evidence and for related purposes Part 1 Preliminary 1 Short title This Act may be cited as the Evidence Act 1977. 2 Act binds Crown This Act binds the Crown not only in right of the State of Queensland but also, so far as the legislative power of Parliament permits, the Crown in all its other capacities. 2A Notes in text A note in the text of this Act is part of the Act. 3 Definitions The dictionary in schedule 3 defines particular words used in this Act. 4 Meaning of copy of document etc. In this Act, any reference to a copy of a document includes— (a) in the case of a document falling within paragraph (e) but not paragraph (f) of the definition document in schedule 3—a transcript of the sounds or other data embodied therein; and (b) in the case of a document falling within paragraph (f) but not paragraph (e) of that definition—a reproduction or still reproduction of the image or images embodied therein, whether enlarged or not; and (c) in the case of a document falling within both those paragraphs—such a transcript together with such a reproduction or still reproduction; and (d) in the case of a document not falling within the said paragraph (f) of which a visual image is embodied in a document falling within that paragraph—a reproduction or still reproduction of that image, whether enlarged or not; and any reference to a copy of the material part of a document shall be construed accordingly. 5 Meaning of document purporting to be of certain character etc. For the purposes of this Act a document, including any instrument or part of an instrument, purports— (a) to be of a certain character; or (b) to have been produced or authenticated at a certain time, in a certain manner, by a certain person or body, or by a person having a certain qualification or occupying a certain office; or (c) any other matter whatever; if the document expressly or impliedly represents that matter or a court can assume that matter from the contents of the document or otherwise. Part 2 Witnesses Division 1 Who may testify 6 Witnesses interested or convicted of offence No person shall be excluded from giving evidence in any proceeding on the ground— (a) that the person has or may have an interest in the matter in question, or in the result of the proceeding; or (b) that the person has previously been convicted of any offence. 7 Parties, their wives and husbands as witnesses (1) Each of the parties to a proceeding (not being a criminal proceeding) and a person on whose behalf such a proceeding is brought or defended is competent and compellable to give evidence on behalf of either or any of the parties to the proceeding. (2) The husband or wife of a party to a proceeding (not being a criminal proceeding) and the husband or wife of a person on whose behalf such a proceeding is brought or defended is competent and compellable to give evidence on behalf of either or any of the parties to the proceeding. (3) To remove any doubt, it is declared for subsections (1) and (2) that a party to a proceeding includes a person who is the subject of an inquiry, reference or examination. 8 Witnesses in a criminal proceeding (1) In a criminal proceeding, each person charged is competent to give evidence on behalf of the defence (whether that person is charged solely or jointly with any other person) but is not compellable to do so. (2) The husband or wife of an accused person in a criminal proceeding is competent and compellable to give evidence in the proceeding in any court, either for the prosecution or for the defence, and without the consent of the accused. (3) In a criminal proceeding, a husband or wife is competent and compellable to disclose communications made between the husband and the wife during the marriage. Division 1A Competency of witnesses and capacity to be sworn 9 Presumption as to competency (1) Every person, including a child, is presumed to be— (a) competent to give evidence in a proceeding; and (b) competent to give evidence in a proceeding on oath. (2) Subsection (1) is subject to this division. 9A Competency to give evidence (1) This section applies if, in a particular case, an issue is raised, by a party to the proceeding or the court, about the competency of a person called as a witness in the proceeding to give evidence. (2) The person is competent to give evidence in the proceeding if, in the court's opinion, the person is able to give an intelligible account of events which he or she has observed or experienced. (3) Subsection (2) applies even though the evidence is not given on oath. 9B Competency to give sworn evidence (1) This section applies if, in a particular case, an issue is raised, by a party to the proceeding or the court, about the competency of a person called as a witness in the proceeding to give evidence on oath. (2) The person is competent to give evidence in the proceeding on oath if, in the court's opinion, the person understands that— (a) the giving of evidence is a serious matter; and (b) in giving evidence, he or she has an obligation to tell the truth that is over and above the ordinary duty to tell the truth. (3) If the person is competent to give evidence in the proceeding but is not competent to give the evidence on oath, the court must explain to the person the duty of speaking the truth. Note— The Oaths Act 1867, section 17, makes provision for a person called as a witness to make his or her solemn affirmation instead of being sworn. 9C Expert evidence about witness's ability to give evidence (1) This section applies to a proceeding if— (a) under section 9A, the court is deciding whether a person is able to give an intelligible account of events which he or she has observed or experienced; or (b) under section 9B, the court is deciding whether a person understands the matters mentioned in section 9B(2)(a) and (b); or (c) the evidence of a child under 12 years is admitted. (2) Expert evidence is admissible in the proceeding about the person's or child's level of intelligence, including the person's or child's powers of perception, memory and expression, or another matter relevant to the person's or child's competence to give evidence, competence to give evidence on oath, or ability to give reliable evidence. 9D Evidence admitted under s 9A (1) Evidence admitted under section 9A that is written down as a deposition is taken to be a deposition for all purposes. (2) If evidence is admitted under section 9A— (a) the probative value of the evidence is not decreased only because the evidence is not given on oath; and (b) a person charged with an offence may be convicted on the evidence; and (c) the person giving the evidence is liable to be convicted of perjury to the same extent as if the person had given the evidence on oath. Division 1B Special provisions for child witnesses 9E Principles for dealing with a child witness (1) Because a child tends to be vulnerable in dealings with a person in authority, it is the Parliament's intention that a child who is a witness in a proceeding should be given the benefit of special measures when giving the child's evidence. (2) The following general principles apply when dealing with a child witness in a proceeding— (a) the child is to be treated with dignity, respect and compassion; (b) measures should be taken to limit, to the greatest practical extent, the distress or trauma suffered by the child when giving evidence; (c) the child should not be intimidated in cross-examination; (d) the proceeding should be resolved as quickly as possible. (3) In this section— child means a child under 16 years. Division 2 Privileges and obligations of witnesses 10 Privilege against self-incrimination (1) Nothing in this Act shall render any person compellable to answer any question tending to criminate the person. (2) However, in a criminal proceeding where a person charged gives evidence, the person's liability to answer any such question shall be governed by section 15. 11 [Repealed] 12 Admissibility of evidence as to access by husband or wife Notwithstanding anything contained in any Act or any rule of law, neither the evidence of any person nor any statement made out of court by any person shall be inadmissible in any proceeding whatever by reason of the fact that it is tendered with the object of proving, or that it proves or tends to prove, that marital intercourse did or did not take place at any time or during any period between that person and a person who is or was the person's wife or husband or that any child is or was, or is not or was not, their legitimate child. 13 Compellability of parties and witnesses as to evidence of adultery Notwithstanding anything in any Act or any rule of law, in any proceeding whatever— (a) a party shall not be entitled to refuse to answer any interrogatory or to give discovery of documents; (b) a witness, whether a party or not, shall not be entitled to refuse to answer any question, whether relevant to any issue or relating to credit merely; on the ground solely that such answer or discovery would or might relate to, or would tend or might tend to establish, adultery by that party or that witness, or by any other person with that party or that witness, as the case may be. 14 Abolition of certain privileges (1) The following rules of law are hereby abrogated except in relation to criminal proceedings, that is to say— (a) the rule whereby, in any proceeding, a person can not be compelled to answer any question or produce any document or thing if to do so would tend to expose the person to a forfeiture; (b) the rule whereby, in any proceeding, a person other than a party to the proceeding can not be compelled to produce any deed or other document relating to the person's title to any land. (2) The rule of law whereby, in any civil proceeding, a party to the proceeding can not be compelled to produce any document relating solely to the party's own case and in no way tending to impeach that case or support the case of any opposing party is hereby abrogated. Division 2A Sexual assault counselling privilege Subdivision 1 Preliminary 14A Meaning of protected counselling communication (1) A protected counselling communication is an oral or written communication made in confidence— (a) by a counselled person to a counsellor; or (b) by a counsellor to or about a counselled person to further the counselling process; or (c) about a counselled person by a parent, carer or other support person who is present to facilitate communication between the counselled person and a counsellor or to otherwise further the counselling process. (2) However, a communication made to or by a health practitioner about a physical examination of the counselled person conducted in the course of an investigation into an alleged sexual assault offence is not a protected counselling communication. (3) For subsection (1) it does not matter whether the communication was made— (a) before or after the act or omission constituting the sexual assault offence committed or allegedly committed against the counselled person occurred; or (b) in connection with the sexual assault offence, or a condition arising from the sexual assault offence, committed or allegedly committed against the counselled person. (4) A reference in this division to a protected counselling communication includes a reference to— (a) a document to the extent it contains a protected counselling communication; or (b) evidence to the extent it discloses a protected counselling communication. (5) In this section— health practitioner means a person registered under the Health Practitioner Regulation National Law to practise a health profession. 14B Other definitions for division In this division— counsel a person means— (a) to listen to and give verbal or other support, help or encouragement to the person, whether one-on-one or in a group; or (b) to advise, give therapy to or treat the person, whether one-on-one or in a group. counselled person means a person who— (a) is being, or has at any time been, counselled by a counsellor; and (b) is, or has at any time been, a victim or alleged victim of a sexual assault offence. counsellor means a person who— (a) has undertaken training or study, or has experience, that is relevant to the process of counselling other persons; and (b) in the course of the person's paid or voluntary employment, other than as a religious representative, counsels another person. essential person, for a proceeding, means any of the following persons— (a) a Crown law officer or a person authorised by a Crown law officer; (b) the prosecutor; (c) a witness giving evidence; (d) a person who is an intermediary under division 4C for a witness giving evidence; (e) a person who a witness is entitled to have present in court under section 21A(2)(d), 21AV or 103ZE(2)(g); (f) a person whose presence is, in the court's opinion, necessary or desirable for the proper conduct of the proceeding; (g) a person who applies to the court to be present and whose presence, in the court's opinion— (i) would serve a proper interest of the person; and (ii) would not be prejudicial to a counselled person's interests. religious representative means a person who— (a) is a member of— (i) an organised religion; or (ii) a religious group, even if the group is not part of, or does not consider itself to be part of, an organised religion; and (b) holds a position in the religion or group that allows the person to hold himself or herself out as a representative of the religion or group. sexual assault offence means— (a) an offence of a sexual nature, including, for example— (i) an offence against a provision of the Criminal Code, chapter 32; and (ii) an offence against a provision of the Criminal Code, chapter 22; or (b) an act or omission that would constitute an offence mentioned in paragraph (a) if the act or omission had occurred— (i) in Queensland; or (ii) after the offence provision commenced; or (c) an alleged offence mentioned in paragraph (a). Subdivision 2 Committal and bail proceedings 14C Application of subdivision This subdivision applies to— (a) a committal proceeding; or (b) a proceeding under the Bail Act 1980 relating to bail for an offence, including a proceeding relating to the remand of a person in custody. 14D Sexual assault counselling privilege A person can not do any of the following things in connection with the proceeding— (a) compel, whether by subpoena or otherwise, another person to produce a protected counselling communication to a court; (b) produce to a court, adduce evidence of or otherwise use, a protected counselling communication; (c) otherwise disclose, inspect or copy a protected counselling communication. Subdivision 3 Other proceedings 14E Application of subdivision This subdivision applies to a proceeding— (a) for the trial or sentencing of a person for an offence, other than a proceeding to which subdivision 2 applies; or (b) relating to a domestic violence order. 14F Sexual assault counselling privilege A person can not do any of the following things in connection with the proceeding, other than with the leave of the court hearing the proceeding— (a) compel, whether by subpoena or otherwise, another person to produce a protected counselling communication to a court; (b) produce to a court, adduce evidence of or otherwise use, a protected counselling communication; (c) otherwise disclose, inspect or copy a protected counselling communication. 14G Application for leave (1) A party to the proceeding may apply for leave of the court under this subdivision. (2) As soon as reasonably practicable after the application is made, the applicant must give the following persons a notice complying with subsection (3)— (a) each other party to the proceeding; (b) if the counsellor to whom the protected counselling communication relates is not a party to the proceeding—the counsellor. (3) For subsection (2), the notice is a written notice stating— (a) an application for leave under this subdivision has been made in relation to a protected counselling communication; and (b) a description of the nature and particulars of the protected counselling communication (other than particulars disclosing the content of the communication); and (c) if the counsellor or counselled person to whom the communication relates is not a party to the proceeding—that the counsellor or counselled person may appear in the proceeding under section 14L. (4) If the counselled person to whom the protected counselling communication relates is not a party to the proceeding, the prosecutor must, as soon as practicable after a notice is given under subsection (2), give the counselled person a copy of the notice. (5) The court can not decide the application until at least 14 days after subsection (2) is complied with. (6) However, the court may waive the requirement to comply with subsection (2) if, in relation to the proceeding— (a) notice has been given of a previous application for leave under this subdivision relating to the same protected counselling communication; or (b) the counselled person to whom the protected counselling communication relates has consented to the waiver of the requirement; or (c) the court is satisfied— (i) exceptional circumstances exist that require the waiver of the requirement; and (ii) it is in the public interest to waive the requirement. (7) For subsection (6)(b), the consent must be given— (a) in writing; or (b) if the counselled person can not give written consent because of a disability—orally. 14H Deciding whether to grant leave (1) The court can not grant an application for leave under this subdivision unless the court is satisfied that— (a) the protected counselling communication the subject of the application will, by itself or having regard to other documents or evidence produced or adduced by the applicant, have substantial probative value; and (b) other documents or evidence concerning the matters to which the communication relates are not available; and (c) the public interest in admitting the communication into evidence substantially outweighs the public interest in— (i) preserving the confidentiality of the communication; and (ii) protecting the counselled person from harm. (2) In deciding the matter mentioned in subsection (1)(c), the court must have regard to the following matters— (a) the need to encourage victims of sexual assault offences to seek counselling; (b) that the effectiveness of counselling is likely to be dependent on maintaining the confidentiality of the counselling relationship; (c) the public interest in ensuring victims of sexual assault offences receive effective counselling; (d) that disclosure of the protected counselling communication is likely to damage the relationship between the counsellor and the counselled person; (e) whether disclosure of the communication is sought on the basis of a discriminatory belief or bias; (f) that the disclosure of the communication is likely to infringe a reasonable expectation of privacy; (g) the extent to which the communication is necessary to enable the accused person to make a full defence; (h) any other matter the court considers relevant. (2A) For deciding the application, the court may do any of the following— (a) order a person to produce the protected counselling communication to the court; (b) consider the protected counselling communication; (c) make any other order it considers appropriate to facilitate its consideration of the protected counselling communication. (2B) If the protected counselling communication is produced to the court under subsection (2A), the court must not disclose it, or make it available to a party to the proceeding, before deciding the application. (3) Also, for deciding the application, the court may consider a written or oral statement made to the court by the counselled person outlining the harm the person is likely to suffer if the application is granted. (4) If an oral statement is made by the counselled person under subsection (3), while the statement is being made the court must exclude from the room in which the court is sitting— (a) anyone who is not an essential person; and (b) an essential person, if— (i) the counselled person asks that the essential person be excluded; and (ii) the court considers excluding the essential person would serve a proper interest of the counselled person. (5) The court must not disclose, or make available to a party to the proceeding, a statement made to the court under subsection (3). (6) The court must state its reasons for granting or refusing to grant the application. (7) If the proceeding is a trial by jury, the court must hear and decide the application in the absence of the jury. (8) In this section— harm includes physical, emotional or psychological harm, financial loss, stress or shock, and damage to reputation. Subdivision 4 Waiver or loss of privilege 14I Waiver of privilege by counselled person (1) This section applies, in relation to a proceeding to which subdivision 2 or 3 applies, if a document or evidence is a protected counselling communication. (2) This division does not prevent the document being produced, or the evidence being adduced, if the counselled person to whom the protected counselling communication relates— (a) is 16 years or more; and (b) consents to the production of the document or adducing of the evidence; and (c) is not a person with an impaired capacity for giving the consent. (3) For subsection (2)(b), the consent must— (a) expressly state the counselled person— (i) consents to the production of a stated document, or the adducing of stated evidence, that is a protected counselling communication relating to the person; and (ii) has had an opportunity to seek legal advice about giving the consent; and (b) be given— (i) in writing; or (ii) if the counselled person can not give written consent because of a disability—orally. (4) To remove any doubt, it is declared that subsection (3)(b) does not require the office of the director of public prosecutions to give the counselled person legal advice. (5) In this section— impaired capacity see the Guardianship and Administration Act 2000, schedule 4. 14J Loss of privilege if communication made in commission of offence This division does not apply to a document or evidence that is a protected counselling communication if the communication was made in the commission of an offence. Subdivision 5 General provisions 14K Court to inform of rights (1) This section applies in relation to a proceeding to which subdivision 2 or 3 applies if it appears to the court a person may have grounds for— (a) applying for leave under subdivision 3; or (b) objecting to the production of a document, or the adducing of evidence, that is a protected counselling communication. (2) The court must satisfy itself the person is aware of the relevant provisions of this division and has had an opportunity to seek legal advice. (3) If the proceeding is a trial by jury, the court must satisfy itself of the matter under subsection (2) in the absence of the jury. (4) To remove any doubt, it is declared that subsection (2) does not require the office of the director of public prosecutions to give the person legal advice. 14L Standing of counsellor and counselled person (1) This section applies if— (a) a counselled person or counsellor is not a party to a proceeding to which subdivision 2 or 3 applies; and (b) the court is deciding— (i) whether a document or evidence relating to the counselled person or counsellor is a protected counselling communication; or (ii) an application for leave under subdivision 3. (2) The counselled person or counsellor may appear in the proceeding, including any appeal. 14M Deciding whether document or evidence is protected counselling communication (1) This section applies if a question arises under this division in relation to a proceeding to which subdivision 2 or 3 applies. (2) The court may consider a document or evidence to decide whether it is a protected counselling communication. (3) While the court is considering the document or evidence, the court must exclude from the room in which it is sitting— (a) anyone who is not an essential person; and (b) an essential person, if— (i) the counselled person to whom the document or evidence relates asks that the essential person be excluded; and (ii) the court considers excluding the essential person would serve a proper interest of the counselled person. (4) The court may make any other order it thinks fit to facilitate its consideration of the document or evidence. (5) This section applies despite sections 14D and 14F. 14N Ancillary orders (1) A court may make any order it considers appropriate to limit the extent of the harm likely to be caused to the counselled person by the production of a document, or the adducing of evidence, that is a protected counselling communication relating to the person. Example— an order that all or part of the evidence be heard, or the document produced, in camera (2) In this section— harm see section 14H. 14O Application of division despite Justices Act 1886 To the extent of an inconsistency, this division applies despite a provision of the Justices Act 1886. 14P Application of privilege in civil proceedings (1) This section applies if, in a proceeding to which subdivision 2 or 3 applies, a protected counselling communication is privileged under this division. Note— A protected counselling communication is not privileged under this division if— (a) leave is granted under subdivision 3 in relation to it; or (b) the privilege is waived or lost under subdivision 4. (2) A person can not produce a document containing, or adduce evidence of, the protected counselling communication in a civil proceeding arising from the act or omission to which the proceeding mentioned in subsection (1) relates. Division 2B Journalist privilege Subdivision 1 Preliminary 14Q Application of division (1) This division applies if— (a) a person (the informant) gives information (the provided information) to a journalist, in the normal course of the journalist's activities as a journalist, in the expectation the information may be published in a news medium; and (b) the journalist promises the informant not to disclose the informant's identity as the source of the information. (2) To remove any doubt, it is declared that this division does not prevent a person from disclosing the informant's identity as the source of the provided information. 14R Who is a journalist (1) A person is a journalist if the person is engaged and active in— (a) gathering and assessing information about matters of public interest; and (b) preparing the information, or providing comment or opinion on or analysis of the information, for publication in a news medium. (2) In determining whether a person is a journalist, a court may consider the following matters— (a) whether the person is regularly engaged and active in the activities mentioned in subsection (1); (b) whether the person complies with a recognised professional standard or code of practice in carrying out the activities; (c) whether the publisher of the news medium complies with a recognised professional standard or code of practice in publishing information in the news medium; (d) any other matter the court considers relevant. 14S Meaning of relevant proceeding (1) In this division, a proceeding is a relevant proceeding if the court hearing the proceeding is a court of record. (2) However, a proceeding under the Crime and Corruption Act 2001 is not a relevant proceeding. (3) To remove any doubt, it is declared that a proceeding is a relevant proceeding whether or not the court hearing the proceeding is bound by the rules of evidence for the proceeding. 14T Definitions for division In this division— authorised officer see section 14ZC. disclosure requirement— (a) means a process or order of a court of record for the disclosure of information or the delivery, inspection or production of a document or thing, including, for example— (i) a summons or subpoena; or (ii) a process or order for disclosure or discovery of documents by a party to a proceeding; or (iii) a process or order for non-party disclosure or discovery; or (iv) an interrogatory; or (v) a notice or request to a party to a proceeding to produce a document; but (b) does not include an obligation or requirement for disclosure by the prosecution in a criminal proceeding. informant see section 14Q(1)(a). journalist see section 14R(1). news medium means a medium for the dissemination of news and observations on news to the public or a section of the public. provided information see section 14Q(1)(a). relevant person, for a journalist, means— (a) a current or previous employer of the journalist; or (b) a person who has engaged the journalist on a contract for services; or (c) a person who— (i) is or has been involved in the publication of a news medium; and (ii) works or has worked with the journalist in relation to publishing information in the news medium. relevant proceeding see section 14S(1). Subdivision 2 Relevant proceedings 14U Application of subdivision This subdivision applies in relation to a relevant proceeding. 14V Journalist privilege relating to identity of informants (1) Despite any other Act, the journalist or a relevant person for the journalist can not be compelled, in relation to the relevant proceeding, to give evidence or comply with a disclosure requirement if giving the evidence or complying with the requirement would— (a) disclose the identity of the informant as the source of the provided information; or (b) enable the identity of the informant as the source of the provided information to be ascertained. (2) However, this section applies in relation to a relevant person for the journalist only if the relevant person became aware of the identity of the informant as the source of the provided information— (a) in the normal course of the relevant person's work with the journalist; or (b) in the course of, or as a result of, a relevant proceeding. 14W Claims of journalist privilege at hearings of relevant proceedings (1) This section applies if— (a) the journalist or a relevant person for the journalist is called to give evidence at a hearing of the relevant proceeding; and (b) the journalist or relevant person for the journalist claims that section 14V applies in relation to the giving of particular evidence by the journalist or relevant person at the hearing. (2) The court hearing the relevant proceeding must decide whether the claim is established. (3) The journalist or relevant person for the journalist has the onus of proving the claim is established on the balance of probabilities. (4) If the relevant proceeding is a trial by jury, the court must hear and decide the claim in the absence of the jury. (5) In hearing the claim, the court may order that all persons other than those specified by the court be excluded from the room in which the court is sitting. (6) However, if the relevant proceeding is a criminal proceeding, the court must not exclude the accused person from the room. 14X Applications for orders requiring giving of evidence despite journalist privilege (1) If the court decides, under section 14W, the claim is established, a party to the relevant proceeding may apply to the court for an order that the journalist or relevant person for the journalist must give the evidence despite section 14V. (2) The applicant has the onus of proving each of the grounds of the application on the balance of probabilities. (3) If the relevant proceeding is a trial by jury, the court must hear and decide the application in the absence of the jury. (4) In hearing the application, the court may order that all persons other than those specified by the court be excluded from the room in which the court is sitting. (5) However, if the relevant proceeding is a criminal proceeding, the court must not exclude the accused person from the room. 14Y Deciding applications under s 14X (1) If an application is made under section 14X(1), the court may make the order if satisfied that, having regard to the issues to be determined in the relevant proceeding, the public interest in disclosing the informant's identity outweighs— (a) any likely adverse effect of the disclosure on the informant or another person; and (b) the public interest in— (i) the communication of facts and opinion to the public by the news media; and (ii) the ability of the news media to access sources of facts. (2) In deciding whether to make the order, the court may have regard to the following matters— (a) whether the provided information is a matter of public interest; (b) the nature and subject matter of the relevant proceeding; (c) the importance of the provided information and the informant's identity to the relevant proceeding and the availability of other evidence in relation to the provided information; (d) if the relevant proceeding is a criminal proceeding—the accused person's right to a fair hearing; (e) any likely adverse effect of disclosing the informant's identity on the informant or another person and whether the effect can be mitigated; (f) whether the informant's identity as the source of the provided information is already in the public domain; (g) any decision previously made by a court under this division about a claim, objection or application in relation to the provided information; (h) the way in which the provided information has been used or kept by the journalist, including whether the journalist— (i) verified the information; or (ii) used the information in a way that is fair and accurate and minimised any likely adverse effect on another person; (i) whether the journalist complied with a recognised professional standard or code of practice in obtaining, using or receiving the provided information; (j) whether obtaining, using, giving or receiving the provided information— (i) involved an offence or misconduct by the informant or journalist; or (ii) poses a risk to national security or the security of the State; (k) the extent to which making the order is likely to deter other persons from giving information to journalists; (l) any other matter the court considers relevant. (3) Also, the court may consider a written or oral statement made by the informant to the court about the matter mentioned in subsection (1)(a). (4) The court must state its reasons for making or refusing to make the order. (5) The order may be subject to the terms and conditions the court considers appropriate. 14Z Objections to disclosure requirements on grounds of journalist privilege (1) This section applies if— (a) the journalist or a relevant person for the journalist is subject to a disclosure requirement in relation to the relevant proceeding; and (b) the journalist or relevant person for the journalist objects to complying with the disclosure requirement on the grounds that section 14V applies; and (c) the court hearing the relevant proceeding is required to make a decision in relation to the objection. (2) The court may decide the objection is established only if satisfied that— (a) section 14V applies in relation to compliance with the disclosure requirement by the journalist or relevant person for the journalist; and (b) having regard to the issues to be determined in the relevant proceeding, the public interest in disclosing the informant's identity does not outweigh the matters mentioned in section 14Y(1)(a) and (b). (3) In considering the matter mentioned in subsection (2)(b), the court may— (a) have regard to the matters mentioned in section 14Y(2); and (b) consider a written or oral statement made by the informant to the court about the matter mentioned in section 14Y(1)(a). (4) In hearing the objection, the court may order that all persons other than those specified by the court be excluded from the room in which the court is sitting. (5) However, if the relevant proceeding is a criminal proceeding, the court must not exclude the accused person from the room. (6) If the court decides the objection is not established, the journalist or relevant person for the journalist must comply with the disclosure requirement. 14ZA Other orders court may make (1) This section applies in relation to a relevant proceeding if— (a) an application is made under section 14X(1) to the court hearing the proceeding; or (b) the court hearing the proceeding is required to make a decision in relation to an objection mentioned in section 14Z(1)(b). (2) The court may make the following orders in relation to the relevant proceeding, application or objection— (a) an order restricting access to a document in relation to the relevant proceeding, application or objection if— (i) the document would disclose the identity of the informant as the source of the provided information or enable the identity of the informant as the source of the provided information to be ascertained; or (ii) the court considers it is in the public interest to restrict access to the document; (b) any other order the court considers appropriate in the circumstances. (3) Without limiting subsection (2)(b), the court may make an order that information or a document provided to the court in relation to the application or objection is not required to be disclosed to any other party to the relevant proceeding, and is not to be publicly accessible, if the court considers it appropriate in the circumstances, including, for example, because disclosure of the information or document would— (a) prejudice a proceeding, or an investigation or intelligence operation of a law enforcement agency within the meaning of section 21C; or (b) cause harm or detriment to a person. 14ZB Court to inform of particular rights (1) This section applies if it appears to the court hearing a relevant proceeding that a person may have grounds for— (a) claiming that section 14V applies in relation to the giving of evidence by the person; or (b) applying for an order under section 14X(1). (2) The court must satisfy itself that the person is aware of the relevant provisions of this subdivision and has had an opportunity to seek legal advice. (3) If the proceeding is a trial by jury, the court must satisfy itself of the matter under subsection (2) in the absence of the jury. Subdivision 3 Search warrants 14ZC Application of subdivision This subdivision applies if a warrant is issued that authorises a person (an authorised officer) to enter and search a place or search another person and, during the search— (a) the authorised officer wishes to deal with a document or thing in a way authorised under the warrant; and (b) the journalist or a relevant person for the journalist tells the authorised officer that the journalist or relevant person objects to the dealing on the grounds that the document or thing contains information that would— (i) disclose the identity of the informant as the source of the provided information; or (ii) enable the identity of the informant as the source of the provided information to be ascertained; and (c) the authorised officer tells the journalist or relevant person for the journalist the officer still wishes to deal with the document or thing despite the objection. 14ZD Procedures if objections made (1) The authorised officer may ask the journalist or relevant person for the journalist to agree to the document or thing being immediately sealed in a container, or stored in another secure way, specified by the officer and held by the officer for safekeeping. (2) If the authorised officer makes a request under subsection (1), the officer must tell the journalist or relevant person for the journalist— (a) about the effect of subsection (3); and (b) that if the journalist or relevant person agrees as mentioned in subsection (1), the journalist or relevant person may make an application to the Supreme Court under section 14ZE(2) in relation to the document or thing. (3) If the journalist or relevant person for the journalist does not agree as mentioned in subsection (1), the authorised officer may deal with the document or thing in a way authorised under the warrant. (4) Subsections (5) and (6) apply if the journalist or relevant person for the journalist agrees as mentioned in subsection (1). (5) If an application is made to the Supreme Court under section 14ZE(2) in relation to the sealed or stored document or thing, the authorised officer must ensure the sealed or stored document or thing is given to the registrar of the Supreme Court for safekeeping until the application is decided. (6) If an application is not made to the Supreme Court under section 14ZE(2) in relation to the sealed or stored document or thing— (a) the authorised officer must ensure the sealed or stored document or thing is kept in safe custody until the end of the period mentioned in section 14ZE(3); and (b) the sealed or stored document or thing may, after the period has ended, be dealt with in a way authorised under the warrant. 14ZE Applications to Supreme Court in relation to objections (1) This section applies if the journalist or relevant person for the journalist agrees as mentioned in section 14ZD(1). (2) The following persons may apply to the Supreme Court to decide whether the sealed or stored document or thing may be dealt with in a way authorised under the warrant— (a) the journalist or relevant person for the journalist; (b) the authorised officer; (c) the chief executive, however described, of the entity that appointed the authorised officer or a delegate of the chief executive; (d) another person prescribed by regulation. (3) The application must be made within 7 days after the day the request under section 14ZD(1) is made. (4) In hearing the application, the court may order that all persons other than those specified by the court be excluded from the room in which the court is sitting. 14ZF Decisions on applications (1) If an application is made under section 14ZE(2)— (a) the court must first decide whether the grounds for the objection mentioned in section 14ZC(b) are established; and (b) the journalist or relevant person for the journalist has the onus of proving the grounds for the objection on the balance of probabilities. (2) Subsection (3) applies if the court decides the grounds for the objection are established. (3) The court may decide the sealed or stored document or thing may be dealt with in a way authorised under the warrant despite the objection if satisfied the public interest in disclosing the informant's identity outweighs the matters mentioned in section 14Y(1)(a) and (b). (3A) A person mentioned in section 14ZE(2)(b), (c) or (d), who is a party to the application, has the onus of proving, on the balance of probabilities, that the public interest in disclosing the informant's identity outweighs the matters mentioned in section 14Y(1)(a) and (b). (4) In making the decision under subsection (3), the court may have regard to the following matters— (a) the matters mentioned in section 14Y(2)(a) and (e) to (l); (b) the nature of the investigation to which the warrant relates; (c) the importance of the provided information and the informant's identity to the investigation to which the warrant relates and the availability of other evidence in relation to the provided information; (d) the purposes for which the provided information and the informant's identity are intended to be used. (5) Also, the court may consider a written or oral statement made by the informant to the court about the matter mentioned in section 14Y(1)(a). (6) The court must state the reasons for its decision under subsection (3). 14ZG Other orders court may make (1) The court may make the following orders in relation to the application— (a) an order restricting access to a document in relation to the application if— (i) the document would disclose the identity of the informant as the source of the provided information or enable the identity of the informant as the source of the provided information to be ascertained; or (ii) the court considers it is in the public interest to restrict access to the document; (b) any other order the court considers appropriate in the circumstances. (2) Without limiting subsection (1)(b)— (a) the court may make an order that information or a document provided to the court in relation to the application is not required to be disclosed to any other party to the application, and is not to be publicly accessible, if the court considers it appropriate in the circumstances, including, for example, because disclosure of the information or document would— (i) prejudice a proceeding, or an investigation or intelligence operation of a law enforcement agency within the meaning of section 21C; or (ii) cause harm or detriment to a person; and (b) if the court decides the sealed or stored document or thing may be dealt with in a way authorised under the warrant—the court may make an order about how the sealed or stored document or thing may be dealt with under the warrant. Division 3 Examination and cross-examination of witnesses 15 Questioning a person charged in a criminal proceeding (1) Where in a criminal proceeding a person charged gives evidence, the person shall not be entitled to refuse to answer a question or produce a document or thing on the ground that to do so would tend to prove the commission by the person of the offence with which the person is there charged. (2) Where in a criminal proceeding a person charged gives evidence, the person shall not be asked, and if asked shall not be required to answer, any question tending to show that the person has committed or been convicted of or been charged with any offence other than that with which the person is there charged, or is of bad character, unless— (a) the question is directed to showing a matter of which the proof is admissible evidence to show that the person is guilty of the offence with which the person is there charged; (b) the question is directed to showing a matter of which the proof is admissible evidence to show that any other person charged in that criminal proceeding is not guilty of the offence with which that other person is there charged; (c) the person has personally or by counsel asked questions of any witness with a view to establishing the person's own good character, or has given evidence of the person's good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or of any witness for the prosecution or of any other person charged in that criminal proceeding; (d) the person has given evidence against any other person charged in that criminal proceeding. (3) A question of a kind mentioned in subsection (2)(a), (b) or (c) may be asked only with the court's permission. (4) If the proceeding is a trial by jury, an application for the court's permission under subsection (3) must be made in the absence of the jury. 15A Questioning of witness as to certain convictions A witness in any criminal or civil proceeding shall not be asked and if asked shall not be required to answer any question tending to show that the witness has committed or been convicted of or been charged with any offence if, where the witness has been convicted of the offence— (a) the conviction is one in relation to which a rehabilitation period is capable of running pursuant to the Criminal Law (Rehabilitation of Offenders) Act 1986; and (b) in relation to the conviction the rehabilitation period within the meaning of that Act is not running at the time of the criminal or civil proceeding; unless the permission of the court to ask the question has first been obtained, such permission to be applied for in a trial by jury in the absence of the jury. 16 Witness may be questioned as to previous conviction Subject to this Act, a witness may be questioned as to whether the witness has been convicted of any indictable or other offence and upon being so questioned, if the witness either denies the fact or refuses to answer, it shall be lawful for the party so questioning to prove such conviction. 17 How far a party may discredit the party's own witness (1) A party producing a witness shall not be allowed to impeach the credit of the witness by general evidence of bad character but may contradict the witness by other evidence, or (in case the witness in the opinion of the court proves adverse) may by leave of the court prove that the witness has made at other times a statement inconsistent with the present testimony of the witness. (2) However, before such last mentioned proof can be given, the circumstances of the supposed statement sufficient to designate the particular occasion must be mentioned to the witness and the witness must be asked whether or not the witness has made such statement. 18 Proof of previous inconsistent statement of witness (1) If a witness upon cross-examination as to a former statement made by the witness relative to the subject matter of the proceeding and inconsistent with the present testimony of the witness does not distinctly admit that the witness has made such statement, proof may be given that the witness did in fact make it. (2) However, before such proof can be given, the circumstances of the supposed statement sufficient to designate the particular occasion must be mentioned to the witness and the witness must be asked whether or not the witness has made such statement. 19 Witness may be cross-examined as to written statement without being shown it (1) A witness may be cross-examined as to a previous statement made by the witness in writing or reduced into writing relative to the subject matter of the proceeding without such writing being shown to the witness. (1A) However, if it is intended to contradict the witness by the writing the attention of the witness must, before such contradictory proof can be given, be called to those parts of the writing which are to be used for the purpose of so contradicting the witness. (2) A court may at any time during the hearing of a proceeding direct that the writing containing a statement referred to in subsection (1) be produced to the court and the court may make such use in the proceeding of the writing as the court thinks fit. 20 Cross-examination as to credit (1) The court may disallow a question as to credit put to a witness in cross-examination, or inform the witness the question need not be answered, if the court considers an admission of the question's truth would not materially impair confidence in the reliability of the witness's evidence. (2) In this section— question as to credit, for a witness, means a question that is not relevant to the proceeding except that an admission of the question's truth may affect the witness's credit by injuring the witness's character. 21 Improper questions (1) The court must disallow a question put to a witness in cross-examination or inform a witness a question need not be answered, if the court considers the question is an improper question. (2) For subsection (1), an improper question includes a question 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 age, race, culture, gender, sex, sex characteristics, sexuality or mental, intellectual or physical disability). (3) In deciding whether a question is an improper question, the court must take into account— (a) any relevant condition or characteristic of the witness of which the court is, or is made, aware, including age, race, culture, gender identity, sex, sex characteristics, sexuality, education, language background and skills and level of maturity and understanding; and (b) any mental, intellectual or physical disability to which the witness is, or appears to be, subject and of which the court is, or is made, aware; 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. (4) Subsection (3) does not limit the matters the court may take into account in deciding whether a question is an improper question. (5) A question is not an improper question merely because— (a) the question challenges the truthfulness of the witness or the consistency or accuracy of any statement made by the witness; or (b) the question requires the witness to discuss a subject that the witness could consider to be private or distasteful. (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. Division 4 Evidence of special witnesses 21A Evidence of special witnesses (1) In this section— criminal organisation see the Penalties and Sentences Act 1992, section 161O. domestic violence see the Domestic and Family Violence Protection Act 2012, section 8. participant, in a criminal organisation, see the Penalties and Sentences Act 1992, section 161P. party includes a person who is present in court and is a member, a representative (other than a legal representative) or a nominee of an organisation that is a party to the proceeding. relevant matter, for a person, means the person's age, education, level of understanding, cultural background or relationship to any party to the proceeding, the nature of the subject matter of the evidence, or another matter the court considers relevant. serious criminal offence means— (a) an indictable offence punishable by at least 7 years imprisonment, including an offence against a repealed provision of an Act; or (b) a prescribed offence as defined under the Penalties and Sentences Act 1992, section 161N, other than an offence mentioned in paragraph (a), charged with a circumstance of aggravation stated in section 161Q of that Act. sexual offence means an offence of a sexual nature, including, for example— (a) an offence against a provision of the Criminal Code, chapter 32; and (b) an offence against a provision of the Criminal Code, chapter 22. special witness means— (a) a child under 16 years; or (b) a person who, in the court's opinion— (i) would, as a result of a mental, intellectual or physical impairment or a relevant matter, be likely to be disadvantaged as a witness; or (ii) would be likely to suffer severe emotional trauma; or (iii) would be likely to be so intimidated as to be disadvantaged as a witness; if required to give evidence in accordance with the usual rules and practice of the court; or (c) a person who is to give evidence about the commission of a serious criminal offence committed by a criminal organisation or a participant in a criminal organisation; or (d) a person— (i) against whom domestic violence has been or is alleged to have been committed by another person; and (ii) who is to give evidence about the commission of an offence by the other person; or (e) a person— (i) against whom a sexual offence has been, or is alleged to have been, committed by another person; and (ii) who is to give evidence about the commission of an offence by the other person. (1A) This section does not apply to a child to the extent division 4A applies to the child. (1B) A party to a proceeding or, in a criminal proceeding, the person charged may be a special witness. (2) Where a special witness is to give or is giving evidence in any proceeding, the court may, of its own motion or upon application made by a party to the proceeding, make or give 1 or more of the following orders or directions— (a) in the case of a criminal proceeding—that the person charged or other party to the proceeding be excluded from the room in which the court is sitting or be obscured from the view of the special witness while the special witness is giving evidence or is required to appear in court for any other purpose; (b) that, while the special witness is giving evidence, all persons other than those specified by the court be excluded from the room in which it is sitting; (c) that the special witness give evidence in a room— (i) other than that in which the court is sitting; and (ii) from which all persons other than those specified by the court are excluded; (d) that a person approved by the court be present while the special witness is giving evidence or is required to appear in court for any other purpose in order to provide emotional support to the special witness; (e) that a videorecording of the evidence of the special witness or any portion of it be made under such conditions as are specified in the order and that the videorecorded evidence be viewed and heard in the proceeding instead of the direct testimony of the special witness; (f) another order or direction the court considers appropriate about the giving of evidence by the special witness, including, for example, any of the following— (i) a direction about rest breaks for the special witness; (ii) a direction that questions for the special witness be kept simple; (iii) a direction that questions for the special witness be limited by time; (iv) a direction that the number of questions for a special witness on a particular issue be limited. (4) Subject to any order made pursuant to subsection (5), in any criminal proceeding an order shall not be made pursuant to subsection (2)(a), (b) or (c) excluding the person charged from the room in which a special witness is giving evidence unless provision is made, by means of an electronic device or otherwise, for that person to see and hear the special witness while the special witness is giving evidence. (5AA) An order must not be made under subsection (2)(b) or (c) or (5) excluding from the room in which a special witness is giving evidence an intermediary under division 4C for the witness. (5) Where the making of a videorecording of the evidence of a special witness is ordered pursuant to subsection (2)(e), the court may further order that all persons other than those specified by the court be excluded from the room in which the special witness is giving that evidence. (5A) However, any person entitled in the proceeding to examine or cross-examine the special witness shall be given reasonable opportunity to view any portion of the videorecording of the evidence relevant to the conduct of that examination or cross-examination. (6) A videorecording made under this section of evidence given by a special witness, or a lawfully edited copy of the videorecording— (a) is as admissible as if the evidence were given orally in the proceeding in accordance with the usual rules and practice of the court; and (b) is, unless the relevant court otherwise orders, admissible in— (i) any rehearing or retrial of, or appeal from, the proceeding; or (ii) in the case of evidence given for a criminal proceeding— (A) another proceeding in the same court for the relevant charge or for another charge arising out of the same, or the same set of, circumstances; or (B) a civil proceeding arising from the commission of the offence. (6A) A reference in subsection (6) to a videorecording made under this section includes a reference to a copy of the videorecording on a separate data storage medium if— (a) the videorecording is a digital recording; and (b) the copy of the v